Com. v. Myers, C. ( 2019 )


Menu:
  • J-S39009-19
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    Appellee                :
    :
    v.                             :
    :
    CHRISTOPHER MYERS                          :
    :
    Appellant               :       No. 573 EDA 2019
    Appeal from the Judgment of Sentence Entered November 21, 2017
    In the Court of Common Pleas of Chester County
    Criminal Division at No(s): CP-15-CR-0000112-2017
    BEFORE:      GANTMAN, P.J.E., STABILE, J., and STEVENS*, P.J.E.
    MEMORANDUM BY GANTMAN, P.J.E.:                      FILED NOVEMBER 19, 2019
    Appellant, Christopher Myers, appeals nunc pro tunc from the judgment
    of sentence entered in the Chester County Court of Common Pleas, following
    his negotiated guilty plea to three counts of burglary.1 We affirm and grant
    counsel’s petition to withdraw.
    The relevant facts and procedural history of this case are as follows. On
    November 21, 2017, Appellant entered a negotiated guilty plea to three counts
    of burglary. Before accepting the plea, Appellant completed a written guilty
    plea colloquy and the court conducted an oral plea colloquy to confirm
    Appellant’s plea was knowing, intelligent, and voluntary. The court sentenced
    Appellant that day to the negotiated aggregate sentence of 6½ to 13 years’
    ____________________________________________
    1   18 Pa.C.S.A. § 3502(a)(1).
    ____________________________________
    * Former Justice specially assigned to the Superior Court.
    J-S39009-19
    imprisonment, plus five years’ probation. Appellant did not file post-sentence
    motions or a direct appeal.
    On September 21, 2018, Appellant filed a pro se petition under the Post
    Conviction Relief Act (“PCRA”).2 In his petition, Appellant alleged counsel was
    ineffective for failing to file requested post-sentence motions and a requested
    direct appeal.     Specifically, Appellant claimed he wanted to challenge the
    discretionary aspects of his sentence, which required preservation in the trial
    court. Appellant sought reinstatement of his post-sentence motion and direct
    appeal rights nunc pro tunc. The court appointed counsel on September 25,
    2018. On January 24, 2019, with agreement from the Commonwealth, the
    court restored only Appellant’s direct appeal rights nunc pro tunc.
    Appellant timely filed a notice of appeal nunc pro tunc on February 22,
    2019. On February 25, 2019, the court ordered Appellant to file a concise
    statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
    Counsel subsequently filed a statement of intent to file a petition to withdraw
    and Anders3 brief, per Pa.R.A.P. 1925(c)(4).
    As a preliminary matter, appellate counsel seeks to withdraw her
    representation pursuant to Anders and Commonwealth v. Santiago, 
    602 Pa. 159
    , 
    978 A.2d 349
    (2009). Anders and Santiago require counsel to: 1)
    ____________________________________________
    2   42 Pa.C.S.A. §§ 9541-9546.
    3   Anders v. California, 
    386 U.S. 738
    , 
    87 S. Ct. 1396
    , 
    18 L. Ed. 2d 493
    (1967).
    -2-
    J-S39009-19
    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).
    In 
    Santiago, supra
    , our Supreme Court addressed the briefing
    requirements where court-appointed appellate counsel seeks to withdraw
    representation:
    Neither Anders nor McClendon4 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
    ____________________________________________
    4   Commonwealth v. McClendon, 
    495 Pa. 467
    , 
    434 A.2d 1185
    (1981).
    -3-
    J-S39009-19
    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. After confirming 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).
    Instantly, appellate counsel has filed an amended petition to withdraw.5
    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 proper letter explaining Appellant’s immediate
    right to retain new counsel or proceed pro se to raise any additional issues
    Appellant deems worthy of this Court’s attention. In the Anders brief, counsel
    provides a summary of the facts and procedural history of the case and refers
    ____________________________________________
    5 Counsel initially filed an Anders brief on May 29, 2019, but her letter
    advising Appellant of his rights was deficient. Consequently, this Court denied
    counsel’s withdrawal petition and remanded the matter briefly with
    instructions for counsel to file an amended petition to withdraw including a
    new letter to Appellant advising him of his immediate right, either pro se or
    with privately retained counsel, to file a brief on any additional points
    Appellant deemed worthy of review.          On September 3, 2019, counsel
    complied.
    -4-
    J-S39009-19
    to relevant law that might arguably support Appellant’s issue. 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.
    Counsel raises the following issue on Appellant’s behalf:
    DID APPELLANT ENTER HIS GUILTY PLEA KNOWINGLY,
    VOLUNTARILY AND INTELLIGENTLY?
    (Anders Brief at 4).6
    In general, “[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   days   of   sentencing.”
    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).               See also Pa.R.Crim.P.
    720(A)(1), (B)(1)(a)(i) (stating post-sentence motion challenging validity of
    guilty plea shall be filed no later than 10 days after imposition of sentence).
    Where the court reinstates direct appeal rights nunc pro tunc, the
    defendant is not automatically entitled to reinstatement of his post-sentence
    rights nunc pro tunc as well. Commonwealth v. Liston, 
    602 Pa. 10
    , 977
    ____________________________________________
    6Appellant has not responded by the deadline to the Anders brief, either pro
    se or with new counsel.
    -5-
    J-S39009-19
    A.2d 1089 (2009). Nevertheless, a PCRA court can reinstate a defendant’s
    post-sentence rights nunc pro tunc if the defendant successfully pleads and
    proves he was deprived of the right to file and litigate post-sentence motions
    as a result of ineffective assistance of counsel. 
    Id. at 19
    n.9, 977 A.2d at
    1094 
    n.9 (noting counsel may be deemed ineffective for failing to file post-
    sentence motions when claim asserted requires preservation in trial court for
    purposes of appellate review).
    Instantly, Appellant entered a guilty plea on November 21, 2017, to
    three counts of burglary in exchange for the negotiated sentence of 6½ to 13
    years’ imprisonment, plus five years’ probation.      The court immediately
    imposed the negotiated sentence.       Appellant did not file post-sentence
    motions or a direct appeal.
    On September 21, 2018, Appellant timely filed a pro se PCRA petition
    requesting reinstatement of his post-sentence motion and direct appeal rights
    nunc pro tunc. Significantly, Appellant did not contend that he wanted to
    challenge the validity of his guilty plea. Rather, Appellant claimed only that
    he wanted to challenge the discretionary aspects of the sentence imposed,
    although the negotiated plea agreement effectively precluded that claim. See
    Commonwealth v. Reid, 
    117 A.3d 777
    (Pa.Super. 2015) (holding appellant
    was prohibited from challenging discretionary aspects of sentence where court
    imposed negotiated sentence following appellant’s guilty plea; one who pleads
    guilty and receives negotiated sentence may not then seek discretionary
    -6-
    J-S39009-19
    review of that sentence).      The Commonwealth agreed to reinstate only
    Appellant’s direct appeal rights nunc pro tunc.       Given the issue Appellant
    asserted as the basis for his post-sentence motion, the court had no reason
    to reinstate post-sentence-motion rights nunc pro tunc. See 
    Liston, supra
    .
    Compare Commonwealth v. Rivera, 
    154 A.3d 370
    (Pa.Super. 2017) (en
    banc), appeal denied, 
    642 Pa. 121
    , 
    169 A.3d 1072
    (2017) (affirming
    reinstatement of post-sentence-motion rights nunc pro tunc because issue
    appellant sought to raise, regarding withdrawal of his plea, required
    preservation in trial court). Absent a challenge in the trial court to the validity
    of his guilty plea, Appellant has no viable claim for appeal.       See Lincoln,
    supra; Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i).         Following our independent
    review of the record, we agree the appeal is frivolous. See 
    Palm, supra
    .
    Accordingly, we affirm and grant counsel’s amended petition to withdraw.
    Judgment of sentence affirmed; counsel’s amended petition to withdraw
    is granted.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 11/19/19
    -7-
    

Document Info

Docket Number: 573 EDA 2019

Filed Date: 11/19/2019

Precedential Status: Precedential

Modified Date: 11/19/2019