Com. v. Harrell, R., Jr. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
:
v. :
:
:
ROY A. HARRELL, JR., :
:
Appellant. : No. 1120 MDA 2018
Appeal from the Judgment of Sentence Entered, May 30, 2018,
in the Court of Common Pleas of Berks County,
Criminal Division at No(s): CP-06-CR-0002173-2016.
BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED FEBRUARY 04, 2019
Roy Harrell, Jr. appeals from the judgment of sentence imposed after
he pled guilty to simple assault, resisting arrest, and defiant trespass.1
Harrell’s counsel filed an application to withdraw as counsel based upon
Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981) and its federal
predecessor Anders v. California, 386 U.S. 738 (1967). We conclude that
Harrell’s counsel complied with the procedural requirements to withdraw.
Further, after independently reviewing the record, we conclude that the appeal
is wholly frivolous. We, therefore, grant counsel’s application to withdraw and
affirm the judgment of sentence.
____________________________________________
118 Pa.C.S.A. § 2701(a)(1), 18 Pa.C.S.A. § 5104, and 18 Pa.C.S.A. §
3503(b)(1)(i).
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The charges in this case arose out of an incident where Harrell was
trespassing on private property. Before the police arrived, he attacked and
injured a man. Harrell resisted arrest and, subsequently, had to be tazed due
to his aggressive behavior. The Commonwealth charged Harrell with several
offenses related to this incident.
On May 30, 2018, Harrell entered an open guilty plea to simple assault,
resisting arrest, and defiant trespass. All other charges were dismissed. That
same day, the trial court sentenced him to an aggregate of two to four years
of incarceration with a total of 768 days of credit for time served and one year
of special probation. A week later, on June 8, 2018, Harrell filed a post-
sentence motion to withdraw his guilty plea. The trial court denied Harrell’s
motion on June 22, 2018.
Harrell filed a timely notice of appeal on July 6, 2018. Both Harrell and
the trial court complied with Pa.R.A.P. 1925. Harrell’s counsel filed a petition
to withdraw from this appeal claiming that it is frivolous.
“When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.
2010). To determine whether it is appropriate for counsel to withdraw, we
must first consider whether counsel satisfied certain procedural requirements.
In Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), the
Pennsylvania Supreme Court explained what is required to be contained within
an Anders brief:
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[T]he Anders brief that accompanies court-appointed
counsel’s petition to withdraw . . . 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. “While the Supreme Court in Santiago, set
forth the new requirements for an Anders brief, which are quoted above, the
holding did not abrogate the notice requirements set forth in
[Commonwealth v. Millisock, 873 A.2d 748, 751 (Pa. Super. 2005)] that
remain binding precedent”. Daniels, 999 A.2d at 594. Thus, counsel seeking
to withdraw on direct appeal must satisfy the following obligations to his or
her client:
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. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (citation
omitted). Our review reveals that Harrell’s counsel substantially complied with
the technical requirements of Anders and Santiago.
“Once counsel has satisfied the above requirements, it is then this
Court’s duty to conduct its own review of the trial court’s proceedings and
render an independent judgment as to whether the appeal is, in fact, wholly
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frivolous.” Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa. Super.
2007) (en banc) (citation omitted); Santiago, 978 A.2d at 355 n.5. “In light
of the constitutional rights at issue, we must give Anders a most generous
reading and review ‘the case’ as presented in the entire record with
consideration first of issues raised by counsel.” Commonwealth v.
Dempster, 187 A.23d 266, 272 (Pa. Super. 2018) (citing Anders, 286 U.S.
at 744). “[T]his review does not require this Court to act as counsel or
otherwise advocate on behalf of a party. Rather, it requires us only to conduct
a simple review of the record to ascertain if there appear on its face to be
arguably meritorious issues that counsel, intentionally or not, missed or
misstated.” Id., 187 A.23d at 272. Thus, we now turn to the substantive
requirement of this analysis.
Harrell has raised the following single issue on appeal:
Whether the trial court erred when it denied Harrell’s petition to
withdraw his guilty plea, even though said guilty plea was not
made knowingly, intelligently, or voluntarily.
Anders Brief at 10. Harrell claims that his plea was not entered knowingly,
voluntarily, and intelligently. However, he does not specify why this is so. In
his post sentence motion, he merely asserted that “manifest injustice” would
ensue if he could not withdraw his guilty plea, without further detail. Anders
Brief at 18.
The trial court noted that such boiler plate language and bare bone legal
conclusions, without more, renders the issue waived. Trial Court Opinion,
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7/30/18 at 2. We agree. When an issue is not developed, it will be deemed
waived. Commonwealth v. A.W. Robl Transport., 747 A.2d 400, 405 (Pa.
Super. 2000).
However, even if we were to consider the merits of this issue, we would
conclude that Harrell knowingly, voluntarily, and intelligently entered his guilty
plea. “There is no absolute right to withdraw a guilty plea, and the decision
as to whether to allow a defendant to do so is a matter within the sound
discretion of the trial court.” Commonwealth v. Pollard, 832 A.2d 517, 522
(Pa. Super. 2003). “To withdraw a plea after sentencing, a defendant must
make a showing of prejudice amounting to ‘manifest injustice’.” Id. “A plea
rises to the level of manifest injustice when it was entered into involuntarily,
unknowingly, or unintelligently.” Id.
In order to ensure that a defendant understands the significance of the
plea and its consequences, the trial court is required to inquire into the
following areas during the plea colloquy: “(1) the nature of the charges; (2)
the factual basis of the plea; (3) the right to trial by jury; (4) the presumption
of innocence; (5) the permissible range of sentences; and (6) the judge’s
authority to depart from any recommended sentence.” Commonwealth v.
Baney, 860 A.2d 127, 132 (Pa. Super. 2004) (quoting Commonwealth v.
Muhammad, 794 A.2d 378 (Pa. Super. 2002)); Pa.R.Crim.P. 590, Comment.
On appeal, “[t]his Court evaluates the adequacy of the guilty plea colloquy
and the voluntariness of the resulting plea by examining the totality of the
circumstances surrounding the entry of that plea.” Baney, 794 A.2d at 132.
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The record in this case shows that the trial court conducted a thorough,
on-the-record inquiry during the guilty plea colloquy. The trial court covered
each of the areas required by law. Harrell’s responses to the trial court’s
inquiries were direct and unwavering. Additionally, during allocution, Harrell
informed the court that: “I believe that the judgments that I have seen are
fair. So I decided to take an open plea.” Considering the totality of the
circumstances surrounding Harrell’s plea, we conclude that Harrell entered a
knowing, voluntary, and intelligent plea of guilty, and that the trial court did
not abuse its discretion in denying his motion to withdraw.
For the foregoing reasons, we conclude that the only issue Harrell raised
in this appeal is wholly frivolous. Furthermore, after an independent review
of the entire record, we conclude that no other issue of arguable merit exists.
Dempster, supra. Therefore, we grant counsel’s request to withdraw, and
we affirm the judgment of sentence.
Petition to withdraw as counsel granted. Judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/04/2019
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