Com. v. Fowler, J. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JUSTIN FOWLER :
:
Appellant : No. 1840 WDA 2017
Appeal from the Judgment of Sentence November 7, 2017
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0013292-2016
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JANUARY 03, 2019
Appellant, Justin Fowler, appeals from the judgment of sentence entered
in the Allegheny County Court of Common Pleas, following his negotiated
guilty plea to four counts of simple assault, two counts of terroristic threats,
and one count each of resisting arrest and criminal mischief.1 We affirm.
The relevant facts and procedural history of this case are as follows. On
October 30, 2016, Appellant engaged in a drunken confrontation with his
mother and stepfather. Appellant attacked his stepfather, punching him
multiple times. When Appellant’s mother attempted to intervene, Appellant
punched her in the face. Appellant also damaged his mother’s vehicle. When
police arrived on the scene, Appellant remained unruly and attempted to hit,
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1 18 Pa.C.S.A. §§ 2701(a)(1), 2706(a)(1), 5104, and 3304(a)(5),
respectively.
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bite, kick, and spit on the officers. After a brief struggle, the officers placed
Appellant under arrest.
On January 26, 2017, the Commonwealth charged Appellant with four
counts of simple assault, two counts each of aggravated assault of a police
officer and terroristic threats, and one count each of aggravated assault and
criminal mischief. On November 7, 2017, Appellant entered a negotiated
guilty plea to four counts of simple assault, two counts of terroristic threats,
and one count each of resisting arrest and criminal mischief. In exchange,
the Commonwealth agreed to withdraw one aggravated assault count against
Appellant’s stepfather, to reduce the aggravated assaults against the police
officers to simple assaults, and with those amendments Appellant would plead
guilty to the amended information. There was also an explicit agreement on
the sentence for a total term of five years’ probation plus conditions and
restitution.
On the same day, the court sentenced Appellant to the agreed-upon
aggregate term of five years’ probation plus conditions and restitution.
Appellant timely filed a post-sentence motion to withdraw his guilty plea on
November 13, 2017, which the court denied on November 16, 2017. On
December 8, 2017, Appellant filed a timely notice of appeal. On January 29,
2018, the court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). In lieu of a concise
statement, counsel filed a Rule 1925(c)(4) statement on February 20, 2018,
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of her intent to file an Anders2 brief. On September 6, 2018, counsel filed an
application to withdraw and an Anders brief in this Court.
As a preliminary matter, counsel seeks to withdraw her representation
pursuant to Anders, supra and Commonwealth v. Santiago, 602 Pa. 159,
978 A.2d 349 (2009). Anders and Santiago require counsel to: (1) petition
the Court for leave to withdraw, certifying that after a thorough review of the
record, counsel has concluded the issues to be raised are wholly frivolous; (2)
file a brief referring to anything in the record that might arguably support the
appeal; and (3) furnish a copy of the brief to the appellant and advise him of
his right to obtain new counsel or file a pro se brief to raise any additional
points the appellant deems worthy of review. Santiago, supra at 173-79,
978 A.2d at 358-61. Substantial compliance with these requirements is
sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.
2007). After establishing that counsel has met the antecedent requirements
to withdraw, this Court makes an independent review of the record to confirm
that the appeal is wholly frivolous. Commonwealth v. Palm, 903 A.2d 1244,
1246 (Pa.Super. 2006). See also Commonwealth v. Dempster, 187 A.3d
266 (Pa.Super. 2018) (en banc).
In Santiago, supra, our Supreme Court addressed the briefing
requirements where court-appointed appellate counsel seeks to withdraw
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2 Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
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representation:
Neither Anders nor [Commonwealth v. McClendon, 495
Pa. 467, 434 A.2d 1185 (1981)] requires that counsel’s brief
provide an argument of any sort, let alone the type of
argument that counsel develops in a merits brief. To repeat,
what the brief must provide under Anders are references
to anything in the record that might arguably support the
appeal.
* * *
Under Anders, the right to counsel is vindicated by
counsel’s examination and assessment of the record and
counsel’s references to anything in the record that arguably
supports the appeal.
Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:
[I]n the Anders brief that accompanies court-appointed
counsel’s petition to withdraw, counsel 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.
Id. at 178-79, 978 A.2d at 361.
Instantly, Appellant’s counsel has filed a petition to withdraw. The
petition states counsel conducted a conscientious review of the record and
determined the appeal is wholly frivolous. Counsel also supplied Appellant
with a copy of the brief and a letter explaining Appellant’s right to retain new
counsel or to proceed pro se to raise any additional issues Appellant deems
worthy of this Court’s attention. In the Anders brief, counsel provides a
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summary of the facts and procedural history of the case. Counsel’s argument
refers to relevant law that might arguably support Appellant’s issues. Counsel
further states the reasons for her conclusion that the appeal is wholly
frivolous. Therefore, counsel has substantially complied with the technical
requirements of Anders and Santiago.
Appellant has not responded to the Anders brief pro se or with newly
retained private counsel. Counsel raises the following issue on Appellant’s
behalf:
DID THE TRIAL COURT ERR IN FAILING TO GRANT THE
MOTION TO WITHDRAW THE GUILTY PLEA?
(Anders Brief at 4).
Appellant contends the trial court should have granted his post-sentence
motion to withdraw his guilty plea because his plea was not knowingly,
intentionally, or voluntarily entered, due to his lack of food and sleep.
Appellant concludes he is entitled to some form of relief. We disagree.
As a general rule, the entry of a guilty plea constitutes a waiver of all
defects and defenses except lack of jurisdiction, invalidity of the plea, and
legality of the sentence. Commonwealth v. Main, 6 A.3d 1026 (Pa.Super.
2010). “We have recognized the importance of the plea bargaining process
as a significant part of the criminal justice system.” Commonwealth v.
Byrne, 833 A.2d 729, 735 (Pa.Super. 2003). Further,
A defendant wishing to challenge the voluntariness of a
guilty plea on direct appeal must either object during the
plea colloquy or file a motion to withdraw the plea within ten
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days of sentencing. Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i).
Failure to employ either measure results in waiver.
Commonwealth v. Tareila, 895 A.2d 1266, 1270 n.3
(Pa.Super. 2006). Historically, Pennsylvania courts adhere
to this waiver principle because “[i]t is for the court which
accepted the plea to consider and correct, in the first
instance, any error which may have been committed.”
Commonwealth v. Roberts, [352 A.2d 140, 141
(Pa.Super. 1975)] (holding that common and previously
condoned mistake of attacking guilty plea on direct appeal
without first filing petition to withdraw plea with trial court
is procedural error resulting in waiver; stating, “(t)he swift
and orderly administration of criminal justice requires that
lower courts be given the opportunity to rectify their errors
before they are considered on appeal”; “Strict adherence to
this procedure could, indeed, preclude an otherwise costly,
time consuming, and unnecessary appeal to this court”).
Commonwealth v. Lincoln, 72 A.3d 606, 609-10 (Pa.Super. 2013), appeal
denied, 624 Pa. 688, 87 A.3d 319 (2014) (holding defendant failed to preserve
challenge to validity of guilty plea where he did not object during plea colloquy
or file post-sentence motion to withdraw plea).
“[A] defendant who attempts to withdraw a guilty plea after sentencing
must demonstrate prejudice on the order of manifest injustice before
withdrawal is justified.” Commonwealth v. Pantalion, 957 A.2d 1267, 1271
(Pa.Super. 2008). “A plea rises to the level of manifest injustice when it was
entered into involuntarily, unknowingly, or unintelligently.” Id. (quoting
Commonwealth v. Muhammad, 794 A.2d 378, 383 (Pa.Super. 2002)). The
Pennsylvania Rules of Criminal Procedure mandate that pleas are taken in
open court and the court must conduct an on-the-record colloquy to ascertain
whether a defendant is aware of his rights and the consequences of his plea.
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Commonwealth v. Hodges, 789 A.2d 764 (Pa.Super. 2002). Specifically,
the court must affirmatively demonstrate a defendant understands: (1) the
nature of the charges to which he is pleading guilty; (2) the factual basis for
the plea; (3) his right to trial by jury; (4) the presumption of innocence; (5)
the permissible ranges of sentences and fines possible; and (6) that the judge
is not bound by the terms of the agreement unless he accepts the agreement.
Commonwealth v. Watson, 835 A.2d 786 (Pa.Super. 2003). This Court will
evaluate the adequacy of the plea colloquy and the voluntariness of the
resulting plea by examining the totality of the circumstances surrounding the
entry of that plea. Muhammad, supra. A guilty plea will be deemed valid if
an examination of the totality of the circumstances surrounding the plea shows
that the defendant had a full understanding of the nature and consequences
of his plea such that he knowingly and intelligently entered the plea of his own
accord. Commonwealth v. Rush, 909 A.2d 805 (Pa.Super. 2006).
Pennsylvania law presumes a defendant who entered a guilty plea was
aware of what he was doing and bears the burden of proving otherwise.
Commonwealth v. Pollard, 832 A.2d 517 (Pa.Super. 2003). A defendant
who decides to plead guilty is bound by the statements he makes while under
oath, “and he may not later assert grounds for withdrawing the plea which
contradict the statements he made at his plea colloquy.” Id. at 523. “Our
law does not require that a defendant be totally pleased with the outcome of
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his decision to plead guilty, only that his decision be voluntary, knowing and
intelligent.” Id. at 524.
Additionally, with respect to negotiated plea agreements:
[W]here the guilty plea agreement between the
Commonwealth and a defendant contains a negotiated
sentence, …and where that negotiated sentence is accepted
and imposed by the court, a defendant is not allowed to
challenge the discretionary aspects of the sentence.
Commonwealth v. Reichle, [589 A.2d 1140 (Pa.Super.
1991)]. We stated, “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.” Id. at 1141.
We find the reasoning of Reichle particularly pertinent in
this case. Appellant entered a negotiated guilty plea and
now seeks to avoid a specific term negotiated as part of that
arrangement. If we allowed him now to avoid the term, it
“would undermine the designs and goals of plea bargaining,”
and “would make a sham of the negotiated plea process.”
[Id.]
Byrne, supra (some internal citations and quotation marks omitted).
Instantly, on November 7, 2017, Appellant executed a written guilty
plea colloquy fully communicating his decision to plead guilty. In the written
colloquy, Appellant acknowledged the voluntariness of his plea, the existence
of the plea agreement, and his responsibility for the charged crimes. Appellant
also recognized the rights he was relinquishing by pleading guilty, including
his right to a trial by judge or jury, his right to ensure the Commonwealth met
its burden of proof, and his limited appeal rights.
On the same day, Appellant engaged in an oral guilty plea colloquy
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before the court. During the oral colloquy, Appellant affirmed his decision to
plead guilty and acknowledged his understanding of the plea agreement, his
sentence, and his appeal rights. Under the totality of these circumstances,
Appellant entered a knowing, voluntary, and intelligent guilty plea following
adequate written and oral colloquies. See Rush, supra; Muhammad,
supra. Further, the court imposed an agreed-upon sentence of five years’
probation. Allowing Appellant to renege on the plea bargain at this juncture
would run afoul of the concept of negotiated plea agreements. See Byrne,
supra; Reichle, supra. Therefore, the court properly denied Appellant’s
post-sentence motion to withdraw his guilty plea. Following our independent
review of the record, we conclude the appeal is wholly frivolous. See
Dempster, supra; Palm, supra. Accordingly, we affirm the judgment of
sentence and grant counsel’s petition to withdraw.
Judgment of sentence affirmed. Counsel’s petition to withdraw is
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/3/2019
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