Com. v. Morrison, J. , 173 A.3d 286 ( 2017 )

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2017 PA Super 339COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JASON PAUL MORRISON :
:
Appellant : No. 359 MDA 2017
Appeal from the Order Entered September 27, 2016
in the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-CR-0000677-2016
CP-21-CR-0000874-2016
BEFORE: DUBOW, RANSOM, and STRASSBURGER,* JJ.
OPINION BY STRASSBURGER, J.: FILED OCTOBER 24, 2017
Jason Paul Morrison (Appellant) appeals nunc pro tunc from the
judgment of sentence imposed after Appellant and the Commonwealth
entered into a negotiated plea agreement. We affirm.
We begin with the procedural history of Appellant’s case.
From mid-January 2016 to early February 2016, [while he was
on parole, Appellant] committed multiple acts of burglary or
attempted burglary throughout Cumberland County,
Pennsylvania. [Appellant] took or attempted to take a variety of
items from twelve separate homes and garages. [As a result,
Appellant was charged with a multitude of crimes. 1 Appellant]
1 Specifically, at docket number 677-2016, the Commonwealth charged
Appellant as follows: count one, burglary – adapted for overnight
accommodation – person present; count two, one count of criminal attempt
to burglary – adapted for overnight accommodation – person present;
counts three and four, criminal trespass; count five, criminal mischief; and
count six, burglary – adapted for overnight accommodation – no person
present. At docket number 874-2016, the Commonwealth charged
Appellant as follows: count one, ten counts of burglary – adapted for
(Footnote Continued Next Page)
*Retired Senior Judge assigned to the Superior Court.
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confessed to the crimes[,] and on July 7, 2016, entered pleas of
guilty as follows: at docket [number] 677 of 2016, [Appellant]
pled guilty to one count of burglary of a structure adapted for
overnight accommodation with no person present, and at docket
[number] 874 of 2016, [Appellant] pled guilty to one
consolidated count of burglary of a structure adapted for
overnight accommodation with no person present and to one
consolidated count of criminal attempt to burglary – adapted
overnight accommodation no person present.
Trial Court Opinion, 4/4/2017, at 1 (unnecessary capitalization omitted).
At Appellant’s guilty plea hearing, the Commonwealth and Appellant
presented the trial court with an agreement whereby Appellant would pay
restitution and receive an aggregate sentence of three to ten years of
incarceration. The assistant district attorney explained “that the parties had
agreed to the aforementioned sentence, which was at the bottom of the
standard range of the sentencing guidelines, because [Appellant] cooperated
in resolving the open (and, most likely, unsolvable) burglary cases charged
at [docket number] 874 after being arrested for burglaries at [docket
number] 677.” Id. at 2. After administering a colloquy to Appellant, 2 the
(Footnote Continued) _______________________
overnight accommodation – no person present; count two, two counts of
burglary – adapted for overnight accommodation – no person present; count
three, eight counts of criminal trespass; count four, five counts of theft by
unlawful taking or disposition; and count five, receiving stolen property.
2
As part of the oral colloquy, Appellant acknowledged that he would receive
the agreed-upon sentence of three to ten years at each docket number.
N.T., 7/6/2016, at 9. He further acknowledged that the sentences at each
docket number would run concurrently to each other but likely would run
consecutively to his “parole hit.” Id. As part of the written colloquy signed
by Appellant, he indicated his understanding that pleading guilty limited his
appeal rights. Guilty Plea Colloquy, 7/7/2016, at ¶8.
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trial court accepted Appellant’s negotiated plea and scheduled the case for
sentencing. On September 27, 2016, Appellant was sentenced at each
docket number to the agreed-upon term of three to ten years of
incarceration, plus fines and costs. Although the trial court ordered the
terms of incarceration at each docket number to run concurrently with each
other, the court ordered the sentences to run consecutively to any
imprisonment for a parole violation. Appellant did not file any post-sentence
motions or a direct appeal.
On November 7, 2016, Appellant filed pro se a petition pursuant to the
Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After
appointment of counsel, counsel filed an amended petition requesting
reinstatement of Appellant’s right to a direct appeal nunc pro tunc, alleging
that Appellant’s plea counsel rendered ineffective assistance of counsel by
failing to file a requested appeal. After an evidentiary hearing, the petition
was granted and Appellant timely filed a notice of appeal to this Court. Both
Appellant and the trial court complied with Pa.R.A.P. 1925.
On appeal, Appellant presents two issues.
[1.] Whether the trial court abused its discretion and
committed reversible error when it sentenced Appellant to an
aggregate sentence of not less than three years nor more than
ten years [of] imprisonment?
[2.] Whether the trial court imposed an illegal sentence when it
sentenced Appellant to an aggregate sentence of not less than
three years nor more than ten years [of] imprisonment?
Appellant’s Brief at 5 (unnecessary capitalization and numbers omitted).
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Appellant’s first issue presents a challenge to the discretionary aspects
of his sentence. Because Appellant pled guilty, we must examine the effect
of his guilty plea upon his discretionary aspects claim. “Generally, a plea of
guilty amounts to a waiver of all defects and defenses except those
concerning the jurisdiction of the court, the legality of the sentence, and the
validity of the guilty plea.” Commonwealth v. Reichle, 589 A.2d 1140,
1141 (Pa. Super. 1991) (citations omitted). It is well settled when
the plea agreement contains a negotiated sentence which is
accepted and imposed by the sentencing court, there is no
authority to permit a challenge to the discretionary aspects of
that sentence. If either party to a negotiated plea agreement
believed the other side could, at any time following entry of
sentence, approach the judge and have the sentence unilaterally
altered, neither the Commonwealth nor any defendant would be
willing to enter into such an agreement. Permitting a
discretionary appeal following the entry of a negotiated plea
would undermine the designs and goals of plea bargaining, and
would make a sham of the negotiated plea process[.]
Id. (citations, quotation marks, and footnote omitted).
In the instant case, Appellant negotiated the terms of his guilty plea,
including the specific duration of the sentence with which he now takes
issue. After accepting Appellant’s plea, the trial court sentenced him to the
agreed-upon sentence. Trial Court Opinion, 4/4/2017, at 2; see Guilty Plea
Colloquy, 7/7/2016; N.T., 7/7/2016, at 2-3, 6-10; N.T., 9/27/2016, at 11-
14. Appellant did not challenge the validity of the plea proceedings or
move to withdraw his plea. Accordingly, Appellant waived his discretionary
aspects of sentencing claim. See Reichle, 589 A.2d at 1141.
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Regarding Appellant’s second issue, Appellant’s counsel states that
although Appellant wishes to challenge the legality of his sentence based
upon his maximum sentence being more than three times longer than his
minimum sentence, counsel is unable to advance any argument because the
issue is wholly frivolous. Appellant’s Brief at 12. We agree with counsel that
a challenge to the legality of Appellant’s sentence based upon the length of
his maximum sentence compared to his minimum sentence lacks any basis
in law and fact,3 but as we shall explain, counsel did not follow proper
procedure by including this issue in Appellant’s appeal.
It appears that Appellant directed counsel to raise two issues. Counsel
elected to set forth an argument on the merits of Appellant’s first issue,4 but
3
When imposing a sentence of total confinement, the court must specify a
maximum period, which may not exceed the limit authorized by law. 42
Pa.C.S. § 9756(a). It also must impose a minimum sentence that does not
exceed one-half of the maximum sentence imposed. 42 Pa.C.S.
§ 9756(b)(1). The crimes to which Appellant pled guilty are graded as
felonies of the first degree and carry a statutory penalty of up to 20 years of
incarceration. 18 Pa.C.S. §§ 905, 1103(1), 3502(c)(1). Appellant’s
maximum sentence of ten years does not exceed the statutory maximum
limit and his minimum sentence of three years does not exceed one-half of
the maximum sentence imposed. Therefore, the duration of Appellant’s
sentence is not illegal.
4
It is unclear why counsel made this decision. Counsel’s arguments focused
on other aspects of the legal test required for challenging the discretionary
aspects of Appellant’s sentence. Although counsel noted that Appellant
entered a negotiated plea, counsel did not address the ramifications of doing
so. Appellant’s Brief at 10. Nor did counsel offer an argument seeking to
extend existing law regarding the limitations on appeal rights after a
negotiated plea. As we explained supra, the law is clear that a defendant
may not challenge the court’s discretion upon receipt of the same sentence
(Footnote Continued Next Page)
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apparently disagreed with his client as to the merits of the second issue. In
the brief, counsel stated he “engaged in a careful and conscientious review
of the record and any relevant case law that could arguably support
Appellant’s claim that his sentence was illegal and [] determined this issue
to be wholly frivolous.” Appellant’s Brief at 12. Neither counsel nor
Appellant moved for this Court to withdraw counsel’s representation.
It is axiomatic that indigent defendants have a constitutional right to
have counsel appointed to assist them in pursuing a direct appeal. McCoy
v. Court of Appeals of Wis., Dist. 1, 486 U.S. 429, 435-36 (1988).
However, all “attorney[s], whether appointed or paid, [have] an ethical
obligation to refuse to prosecute a frivolous appeal.” Id. at 436. When
appointed counsel is asked to pursue an appeal that he or she, after
“conscientious examination,” deems to be “wholly frivolous,” counsel must
seek to withdraw from representation on appeal by using the procedure
outlined by the United States Supreme Court and our Supreme Court.
Anders v. California, 386 U.S. 738, 744 (U.S. 1967) (emphasis added);
see also Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
The procedure includes, inter alia, informing the court and the client of
(Footnote Continued) _______________________
for which the defendant bargained previously. In fact, in Reichle, based
upon the existence of established precedent, the trial court’s repeated
clarifications of the defendant’s limited appeal rights, and counsel’s failure to
make a good-faith basis to alter the law, we determined an appeal based
upon this issue was frivolous, and, upon motion, awarded costs and counsel
fees to the Commonwealth. 589 A.2d at 1142-43.
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counsel’s conclusion that the appeal is wholly frivolous, which then allows
the client to advance his or her own arguments pro se. Id.The purpose of the Anders procedure is to give an indigent defendant
access to counsel who uses his or her trained eye to make the same diligent
and thorough evaluation of the case as a retained lawyer before concluding
that an appeal is frivolous. McCoy, 486 U.S. at 438; Santiago, 978 A.2d at
177. However, the Anders procedure applies only to appeals that are
wholly frivolous – that is, cases where counsel has determined that there
are no arguments that counsel may advance because all issues lack basis in
law and/or fact. Id. at 438-39.
In all other cases, after “master[ing] the trial record, thoroughly
research[ing] the law, and exercis[ing] judgment in identifying the
arguments that may be advanced on appeal,” counsel must file an
advocate’s brief that seeks to persuade the court to grant relief to the
defendant. McCoy, 486 U.S. at 438, 439 n.13. “Anders recognized that
the role of the advocate ‘requires that he support his client’s appeal to the
best of his ability.’” Jones v. Barnes, 463 U.S. 745, 754, (1983) (citing
Anders, 386 U.S. at 744). An advocate’s brief actually advocates for the
client; indeed, “it would be a strange advocate’s brief that would contain a
preface advising the court that the author of the brief is convinced that his
or her arguments are frivolous and wholly without merit.” McCoy, 486 U.S.
at 439 n.13.
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It is well settled that an indigent defendant does not have “a
constitutional right to compel appointed counsel to press nonfrivolous points
requested by the client, if counsel, as a matter of professional judgment,
decides not to present those points.” Barnes, 463 U.S. at 751. Accord
Commonwealth v. Jette, 23 A.3d 1032, 1043 (Pa. 2011) (“[A]ppellate
counsel is entitled, as a matter of strategy, to forego even meritorious issues
in favor of issues he believes pose a greater likelihood of success.”). “Th[e]
process of ‘winnowing out weaker arguments on appeal and focusing on’
those more likely to prevail, far from being evidence of incompetence, is the
hallmark of effective appellate advocacy.” Smith v. Murray, 477 U.S. 527,
536 (1986) (quoting Barnes, 463 U.S. at 751-52)). “Indeed, an appellate
lawyer’s exercise of professional judgment in omitting weaker claims is
obviously of benefit to the client: the more claims an appellate brief
contains, the more difficult for an appellate judge to avoid suspecting that
there is no merit to any of them.” United States v. Turner, 677 F.3d 570,
577 (3d Cir. 2012) (citation omitted). “For judges to second-guess
reasonable professional judgments and impose on appointed counsel a duty
to raise every ‘colorable’ claim suggested by a client would disserve the very
goal of vigorous and effective advocacy that underlies Anders.” Barnes,
463 U.S. at 754.
In Turner, the Court of Appeals for the Third Circuit of the United
States declared counsel’s decision to file a brief combining frivolous and
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nonfrivolous issues to be improper. 677 F.3d at 576. We find the court’s
reasoning to be persuasive. “Turner’s counsel set forth what might be called
a ‘quasi-Anders brief,’ which raised a combination of colorable and frivolous
arguments.” Id. at 574. Counsel’s brief explained why counsel considered
certain issues to be frivolous. Turner and his counsel sought permission for
Turner to file pro se a supplemental brief to give Turner an opportunity to
advance new arguments on the merits as to the issues deemed to be
frivolous by his counsel, but the court denied the request, determining that
the court’s local rules prohibit hybrid representation.5
5
Here, Appellant has not attempted to file a brief pro se. If he had, we
would not have been permitted to consider it, as hybrid representation on
direct appeal is not permitted in Pennsylvania. Commonwealth v. Ellis,
626 A.2d 1137, 1141 (Pa. 1993). In Ellis, a represented appellant
attempted to file pro se a brief raising four additional issues not presented
by his counsel. Our Supreme Court explained that a represented appellant
who wishes to raise issues beyond those raised in the counseled brief has
two options.
A represented appellant may petition to terminate his
representation; he may, acting pursuant to the rules of criminal
procedure, proceed on his own behalf. Conversely, he may elect
to allow counsel to take his appeal, but, should counsel not
prevail, assert counsel’s ineffectiveness at a later time and, thus
indirectly, assert the claims he would have made on direct
appeal. The only thing he may not do is confuse and overburden
the court by his own pro se filings at the same time his counsel
is filing briefs on his behalf.
Ellis, 626 A.2d at 1141.
The year after our Supreme Court decided Ellis, the Court clarified its
holding, stating that a criminal appellant who challenges the effectiveness of
his appellate counsel’s representation cannot “terminate counsel after the
(Footnote Continued Next Page)
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In considering whether counsel properly included and labeled frivolous
issues in the brief, the court noted that indigent defendants have no right to
compel appointed counsel to present every requested issue. Id. at 576
(citing Barnes, 463 U.S. at 751). The court also opined that counsel’s
approach was contrary to the Pennsylvania Rules of Professional Conduct.
Lawyers are required to “reasonably consult with the client about the means
by which the client’s objectives are to be accomplished.” Id. (citing Pa. R.
Prof’l Conduct 1.4). When a client and counsel disagree, the client may
discharge the lawyer. Id. at 577 (citing Pa. R. Prof’l Conduct 1.2 cmt. 2).
Moreover, the rules permit the lawyer to exercise professional discretion.
Id. (citing Pa. R. Prof’l Conduct 1.3 cmt. 1) (“[A] lawyer is not bound … to
press for every advantage that might be realized for a client. For example, a
lawyer may have authority to exercise professional discretion in determining
the means by which a matter should be pursued.”).
Accordingly, the court concluded that “[b]y fiing an Anders brief
without seeking to withdraw, counsel have presented issues to the [c]ourt
that need not have been raised.” Id. at 577 (citing McCoy at 436). The
court held that when disagreements arise between counsel and the client as
to the issues to include in an appellate brief, counsel should evaluate the
(Footnote Continued) _______________________
time of counsel’s filing of appellate briefs simply because he wishes to file
pro se appellate briefs.” Commonwealth v. Rogers, 645 A.2d 223, 224
(1994). Instead, the “appellant [must] remain with counsel through the
appeal, once counsel has filed briefs,” but may “assert appellate counsel’s
ineffectiveness at a later time.” Id.- 10 -
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issues and present only the issues that counsel believes, consistent with his
or her ethical duty, are meritorious. Id. at 579.
Like the court in Turner, we have “no doubt that [counsel’s quasi-
Anders brief in the instant case] was well-intentioned and counsel [was]
perplexed as to what to do.” Id. at 576. Nevertheless, the brief filed by
counsel was improper. Inclusion of frivolous issues requires the time and
attention of already overburdened courts to address issues that have no
chance of helping appellants obtain relief. See McCoy, 486 U.S. at 436(“Neither paid nor appointed counsel may … consume the time and the
energies of the court or the opposing party by advancing frivolous
arguments.”). If counsel may elect to forgo nonfrivolous issues, we see no
reason why counsel should present issues that counsel, in his or her
professional judgment, has determined to be frivolous, even if the client
indicates he or she wishes those issues to be included. This is particularly
the case considering the appellant may “assert counsel’s ineffectiveness at a
later time and, thus indirectly, assert the claims he [or she] would have
made on direct appeal.” Ellis, 626 A.2d at 1141.
Therefore, when counsel and an appellant disagree on which issues
should be raised and/or briefed on appeal, counsel must only raise and/or
brief the issues that counsel believes, consistent with counsel’s ethical duty,
to be nonfrivolous. If the disagreement arises prior to counsel’s filing of
briefs, the appellant is free to petition for the withdrawal of counsel in order
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for the appellant to attempt to proceed pro se or with privately-retained
counsel. If the disagreement arises after briefs have been filed by appointed
counsel, and the appellant remains convinced of the merit of his or her
proposed issues, the appellant may later challenge the effectiveness of his or
her appellate counsel in a timely-filed collateral attack pursuant to the PCRA.
Because neither of the issues presented by Appellant has merit, we
affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/24/2017
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