Com. v. Jones, M. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
MICHAEL JONES,
Appellant No. 1129 EDA 2018
Appeal from the Judgment of Sentence Entered April 9, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0015762-2013
BEFORE: BENDER, P.J.E., BOWES, J., and NICHOLS, J.
MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 12, 2019
Appellant, Michael Jones, appeals from the judgment of sentence of 42
to 84 months’ incarceration, imposed after he pled guilty to robbery and
possessing an instrument of crime. On appeal, Appellant seeks to challenge
the validity of his guilty plea, his competency to enter that plea, and the
legality of his sentence. Additionally, Appellant’s counsel, Demetra P. Mehta,
Esq., seeks to withdraw her representation of Appellant pursuant to Anders
v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009). After careful review, we affirm Appellant’s judgment of
sentence and grant counsel’s petition to withdraw.
The facts underlying Appellant’s conviction are not relevant to our
disposition of his appeal. The trial court summarized the procedural history
of his case, as follows:
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On January 8, 2015, [Appellant] pleaded guilty to robbery
and possession of an instrument of crime. On April 9, 2015, the
trial court sentenced [Appellant] to a fully mitigated sentence of
42 months to 84 months of incarceration followed by three years
of probation.
On August 12, 2016. [Appellant] filed a timely petition
pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S. §
9541, et seq.[] [C]ourt-appointed counsel subsequently filed an
amended PCRA petition. The PCRA petitions claimed that trial
counsel provided ineffective assistance of counsel because (1)
counsel failed to file a post-trial motion and appeal as requested
by [Appellant], and (2) counsel failed to object to the imposition
of an illegal or unconstitutional mandatory sentence.
On April 6, 2018, the Commonwealth agreed to the entry of
an order reinstating [Appellant’s] right to a direct appeal. Thus,
on April 18, 2018, [Appellant] filed this timely appeal.
Trial Court Opinion, 5/23/18, at 1.
The trial court ordered Appellant to file a Pa.R.A.P. 1925(b) statement
and, in response, Attorney Mehta filed a Rule 1925(c)(4) statement of her
intent to seek to withdraw. The trial court filed an opinion on May 23, 2018.
On August 28, 2018, Attorney Mehta filed with this Court a petition to
withdraw from representing Appellant. That same day, counsel also filed an
Anders brief, discussing the following issues Appellant seeks to raise on
appeal:
1. Was [Appellant’s] guilty plea valid?
2. Was [Appellant] competent to enter a plea?
3. Was [Appellant’s] sentence legal?
Anders Brief at 6. Attorney Mehta concludes that these issues are frivolous,
and that Appellant has no other, non-frivolous claims he could pursue herein.
Accordingly,
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this Court must first pass upon counsel’s petition to withdraw
before reviewing the merits of the underlying issues presented by
[the appellant]. Commonwealth v. Goodwin, 928 A.2d 287,
290 (Pa. Super. 2007) (en banc).
Prior to withdrawing as counsel on a direct appeal under Anders,
counsel must file a brief that meets the requirements established
by our Supreme Court in Santiago. The brief must:
(1) provide a summary of the procedural history and facts,
with citations to the record;
(2) refer to anything in the record that counsel believes
arguably supports the appeal;
(3) set forth counsel’s conclusion that the appeal is
frivolous; and
(4) state counsel’s reasons for concluding that the appeal is
frivolous. Counsel should articulate the relevant facts of
record, controlling case law, and/or statutes on point that
have led to the conclusion that the appeal is frivolous.
Santiago, 978 A.2d at 361. Counsel also must provide a copy of
the Anders brief to his client. Attending the brief must be a letter
that advises the client of his right to: “(1) retain new counsel to
pursue the appeal; (2) proceed pro se on appeal; or (3) raise any
points that the appellant deems worthy of the court[’]s attention
in addition to the points raised by counsel in the Anders brief.”
Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super.
2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).
Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014). After
determining that counsel has satisfied these technical requirements of Anders
and Santiago, this Court must then “conduct an independent review of the
record to discern if there are any additional, non-frivolous issues overlooked
by counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super.
2015) (citations and footnote omitted).
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In this case, Attorney Mehta’s Anders brief complies with the above-
stated requirements. Namely, she includes a summary of the relevant factual
and procedural history, she refers to portions of the record that could arguably
support Appellant’s claim, and she sets forth her conclusion that Appellant’s
appeal is frivolous. She also explains her reasons for reaching that
determination, and supports her rationale with citations to the record and
pertinent legal authority. Attorney Mehta also states in her petition to
withdraw that she has supplied Appellant with a copy of her Anders brief.
Additionally, she attached a letter directed to Appellant to her petition to
withdraw, in which she informed Appellant of the rights enumerated in
Nischan. Accordingly, counsel has complied with the technical requirements
for withdrawal. We will now independently review the record to determine if
Appellant’s issues are frivolous, and to ascertain if there are any other, non-
frivolous issues he could pursue on appeal.
Initially, we are constrained to conclude that Appellant’s challenges to
the validity of his guilty plea and his competency to enter the plea are waived,
as he did not raise them before the court at the plea or sentencing hearings,
and he did not file a pre- or post-sentence motion seeking to withdraw his
plea on either of these bases. Additionally, while the PCRA court reinstated
Appellant’s right to appeal, it did not expressly grant him the right to file a
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post-sentence motion, and such a right is not automatic.1 See PCRA Court
Order, 4/6/18, at 1 (“AND NOW, this 6th day of April, 2018, the
Commonwealth agrees to the reinstatement of Appellate Rights. Appellate
Rights are reinstated.”); Commonwealth v. Liston, 977 A.2d 1089, 1094
(Pa. 2009) (holding that a defendant who is granted the right to file a notice
of appeal nunc pro tunc is not automatically granted the right to file post-
sentence motions nunc pro tunc). In any case, even if we could loosely
interpret the court’s reinstatement of Appellant’s right to appeal as
encompassing the right to file a post-sentence motion, Attorney Mehta failed
to file any such motion on Appellant’s behalf. Thus, Appellant’s challenges to
the validity of his guilty plea and his competency to enter that plea are waived,
as they were not raised before the trial court. See Pa.R.A.P. 302(a) (“Issues
not raised in the lower court are waived and cannot be raised for the first time
on appeal.”); Commonwealth v. Tareila, 895 A.2d 1266, 1270 n.3 (Pa.
Super. 2006) (“In order to preserve an issue related to the guilty plea, an
appellant must either ‘object[] at the sentence colloquy or otherwise rais[e]
the issue at the sentencing hearing or through a post-sentence motion.’”)
(citation omitted).
Nevertheless, even had Appellant preserved his first two issues for our
review, we would agree with Attorney Mehta that they are frivolous. First,
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1We observe that Appellant’s amended PCRA petition, filed by Attorney Mehta,
did not request the reinstatement of Appellant’s post-sentence motion rights,
but only his right to file an appeal. See Amended Petition, 9/27/17, at 2
(unnumbered).
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nothing in the record suggests that Appellant’s plea was involuntary,
unknowing, or unintelligent. The court’s oral plea colloquy comported with
Pa.R.Crim.P. 590 in all but one regard — the court failed to ask Appellant if he
understood that the court was not bound by the terms of the plea agreement
unless the plea was accepted by the court. However, as Attorney Mehta points
out, the written colloquy completed by Appellant provided him with that
information. See Written Plea Colloquy, 1/8/15, at 1. Accordingly, we would
deem frivolous Appellant’s challenge to the validity of his plea, had he
preserved that claim for our review.
Likewise, we also would consider frivolous Appellant’s argument that he
was incompetent to enter his guilty plea. “Competence to plead guilty requires
a finding that the defendant comprehends the crime for which he stands
accused, is able to cooperate with his counsel in forming a rational defense,
and has a rational and factual understanding of the proceedings against him.”
Commonwealth v. Willis, 68 A.3d 997, 1002 (Pa. Super. 2013) (citation
omitted). Additionally, “[i]n order to establish incompetence, an appellant has
the burden of proving that he was either unable to understand the nature of
the proceedings against him or to participate in his own defense.” In re R.D.,
44 A.3d 657, 665 (Pa. Super. 2012) (citation omitted).
Nothing in the record indicates that Appellant did not understand his
decision to plead guilty and the ramifications thereof, or that he was unable
to participate in his own defense. While Appellant stated that he had been, or
was currently being, treated for mental illness, he confirmed that his diagnosis
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and/or treatment did not impact his ability to understand what was happening
at the plea proceeding. See N.T. Plea Hearing, 1/8/15, at 4. Consequently,
we would conclude that Appellant did not prove that he was incompetent to
enter the guilty plea, had he preserved this argument for our review.
In Appellant’s third and final issue, he challenges the legality of his
sentence, contending that the court’s imposition of the deadly weapon
enhancement (DWE) violates Alleyne v. United States, 570 U.S. 99, 106
(2013) (holding that “facts that increase mandatory minimum sentences must
be submitted to the jury” and found beyond a reasonable doubt). In rejecting
this argument, the trial court reasoned:
[A]s to the [DWE], the trial court may impose an enhanced
sentence if it determines that [Appellant] used a deadly weapon
in a way that threatened or injured another individual during the
commission of the offense of which the defendant is currently
convicted. 204 Pa. Code § 303.10(a)(2). “Deadly weapon”
includes any: (1) firearm as defined in 42 Pa.C.S.[] § 9712; (2)
dangerous weapon as defined in 18 Pa.C.S. § 913; or (3) device
or instrumentality capable of producing death or serious bodily
injury. Id.
Here, the trial court properly applied the [DWE] because it
determined that [Appellant’s] use of a knife during the robbery
was a “device or instrumentality capable of producing death or
serious bodily injury.” 204 Pa. Code § 303.10(a)(2). As such, the
trial court’s determination that the [DWE] applied was not an
abuse of its discretion. Nor was the imposition of the [DWE] in
violation of Alleyne and its progeny because it did not result in a
mandatory minimum sentence. See Commonwealth v. Shull,
148 A.3d 820, 830 n.6 (Pa. Super. [] 2016) (holding that the
“imposition of the deadly weapon sentencing enhancement does
not implicate the Supreme Court of the United States’ holdings in
Alleyne … or Apprendi v. New Jersey, [530 U.S. 466 …
(2000)]”).
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TCO at 3-4.
We agree with the trial court’s reasoning and discern no illegality in the
court’s applying the DWE in fashioning Appellant’s sentence. See also
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1270 n.10 (Pa. Super.
2014), appeal denied 104 A.3d 1 (Pa. 2014) (holding that application of the
DWE does not violate Alleyne or Apprendi because it only requires the court
to raise the standard guideline range and the court retains the discretion to
sentence outside that range). Accordingly, Appellant’s sentencing issue is
frivolous.
In sum, for the reasons stated supra, the three issues Appellant seeks
to assert on appeal are either waived and/or frivolous. Additionally, our
independent review of the record reveals no other, non-frivolous claims that
he could present herein. Therefore, we affirm his judgment of sentence and
grant Attorney Mehta’s petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/12/19
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