Com. v. Dumay, S. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
SHANNON DUMAY :
:
Appellant : No. 819 MDA 2020
Appeal from the Judgment of Sentence Entered April 8, 2020
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0003114-2019
BEFORE: LAZARUS, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY KUNSELMAN, J.: FILED: DECEMBER 20, 2021
Shannon Dumay appeals from the judgment of sentence imposed
following the entry of his guilty plea to possession of a firearm prohibited. 1
Additionally, Dumay’s appellate counsel has filed a petition to withdraw from
representation and an accompanying brief pursuant to Anders v. California,
386 U.S. 738, 744 (1967) (hereinafter the “Anders brief”). We grant
counsel’s petition and affirm the judgment of sentence.
The relevant factual and procedural history can be summarized as
follows. On February 18, 2020, Dumay pled guilty to one count of possession
of a firearm prohibited. At the time of his plea hearing, Dumay was
represented by Mark Singer, Esquire, of the Luzerne County Office of the
Public Defender. Dumay was sentenced on April 8, 2020, to five to ten years
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1 See 18 Pa.C.S.A. § 6105(a)(1).
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in prison. Dumay did not file a post-sentence motion. However, on May 8,
2020, Dumay filed a timely pro se notice of appeal, a pro se Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal, and a pro se motion for
change of counsel. The trial court granted the motion for change of counsel,
and on June 18, 2020, Matthew Kelly, Esquire, was appointed to represent
Dumay.
On June 19, 2020, the trial court ordered Dumay to file a counseled
Pa.R.A.P. 1925(b) concise statement. The order was served on both the
District Attorney’s Office and Attorney Kelly. However, Attorney Kelly did not
file a concise statement on Dumay’s behalf. The trial court then authored a
Pa.R.A.P. 1925(a) opinion in which it determined that, because Dumay was
still represented by Attorney Singer when he filed his pro se concise
statement, that statement was a legal nullity, as hybrid representation is not
permitted. The trial court further determined that, because no counseled
concise statement was filed, none of Dumay’s issues were preserved for
appellate review.
On appeal, this Court remanded for the filing of a counseled Pa.R.A.P.
1925(b) concise statement nunc pro tunc by Attorney Kelly, as well the
preparation and filing of a supplemental Pa.R.A.P. 1925(a) opinion by the trial
court addressing the merits of the counseled concise statement. Both
Attorney Kelly and the trial court complied with this Court’s directives. In the
counseled concise statement, Attorney Kelly raised the following issue:
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“Whether the trial court erred in failing to comply with Pa[.]R.C[rim].P. 590
when the Court did not conduct a full and complete plea colloquy so to ensure
that said plea was made knowingly, voluntarily and intelligently.” Concise
Statement at unnumbered 1 (unnecessary capitalization omitted). In
response, the trial court authored a revised Pa.R.A.P. 1925(a) opinion
addressing the issue raised by Attorney Kelly. Thus, the matter is now back
before this panel.
In the Anders brief, Attorney Kelly restates the issue he raised in the
concise statement as two separate issues:
I. Whether [Dumay’s] plea was knowingly, voluntarily or
intelligently entered.
II. Whether the trial court erred in conducting an inadequate plea
colloquy.
Anders Brief at 1 (issues renumbered).2
“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. Garang, 9 A.3d 237, 240 (Pa. Super. 2010)
(citation omitted). Pursuant to Anders, when counsel believes an appeal is
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2 In the Anders brief, Attorney Kelly explained that the other issues that
Dumay raised in his pro se concise statement consisted of various claims of
ineffective assistance of trial counsel. Attorney Kelly correctly noted that
ineffectiveness claims are generally not appropriate matters for consideration
on direct appeal, but rather are deferred to collateral review under the Post
Conviction Relief Act (“PCRA”). See Commonwealth v. Holmes, 79 A.3d
562 (Pa. 2013). Thus, we decline to address those claims in this appeal.
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frivolous and wishes to withdraw from representation, counsel must do the
following:
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record, counsel has
determined the appeal would be frivolous; (2) file a brief referring
to any issues that might arguably support the appeal, but which
does not resemble a no-merit letter; and (3) furnish a copy of the
brief to the defendant and advise him of his right to retain new
counsel, proceed pro se, or raise any additional points he deems
worthy of this Court’s attention.
Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006)
(citation omitted). Counsel seeking to withdraw must attach to their petitions
a copy of the letter advising their clients of the rights identified above. See
Commonwealth v. Millisock, 873 A.2d 748,752 (Pa. Super. 2005).
In Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), our
Supreme Court addressed the second requirement of Anders, i.e., the
contents of an Anders brief, and required that the brief:
(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. Once counsel has satisfied these requirements,
it is then this Court’s responsibility “to conduct a simple review of the record
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to ascertain if there appear on its face to be arguably meritorious issues that
counsel, intentionally or not, missed or misstated.” Commonwealth v.
Dempster, 187 A.3d 266, 272 (Pa. Super. 2018).
Here, Attorney Kelly filed a petition to withdraw and an Anders brief,
and sent a letter to Dumay attaching the petition and brief. However, in doing
so, Attorney Kelly failed to comply with several of the requirements of Anders.
First, in his petition to withdraw, Attorney Kelly merely indicates that he
reviewed the record but does not indicate that he conscientiously examined it
before determining that an appeal would be frivolous. This Court must be
satisfied that counsel has “fully performed his duty as [appellant’s] advocate
to independently search the record as a trained advocate with an eye to
uncovering appealable error[.]” Santiago, 978 A.2d at 360. Nevertheless,
given that the record in this particular matter is short, due to Dumay’s entry
of a guilty plea to a single charge, and Attorney Kelly has referenced both the
plea hearing and the sentencing hearing in the Anders brief, we are satisfied
that Attorney Kelly’s review of the record was thorough and conscientious.
More troubling, however, is the statement in Attorney Kelly’s petition to
withdraw that he advised Dumay that he could proceed pro se or retain private
counsel “should this Honorable Court grant the within [p]etition [to
withdraw].” Petition to Withdraw, 11/9/20, at 1. This was an inaccurate
statement of the law, as Dumay had the right to immediately proceed pro
se or retain private counsel upon the filing of the petition to withdraw. See
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Commonwealth v. Muzzy, 141 A.3d 509 (Pa. Super. 2016) (holding that
“[i]f counsel files a petition to withdraw as appellate counsel in this Court, the
letter to the client, inter alia, shall inform the PCRA petitioner that upon the
filing of counsel’s petition to withdraw, the petitioner-appellant has the
immediate right to proceed in the appeal pro se or through privately retained
counsel.”).
While Attorney Kelly omitted this contingency in his letter to Dumay,
which merely indicated that Dumay had the right to proceed pro se or retain
private counsel, Attorney Kelly nevertheless attached to that letter his petition
to withdraw, which contained the incorrect language that Dumay did not have
the right to proceed pro se or to retain private counsel unless or until this
Court granted the petition to withdraw. Notably, Dumay has not elected to
proceed pro se or retain private counsel, which may be the result of either
informed deliberation based on the information provided in the letter or
confusion due to the misinformation provided in the petition to withdraw.
Attorney Kelly’s Anders brief is also deficient. In an Anders brief,
counsel must include either a reference to anything in the record arguably
supporting the appeal, or an affirmative statement “there were no such
references for him to make.” Santiago, 978 A.2d at 360 (holding that
“[w]ithout one or the other, we are not assured, as Anders requires, that
counsel fully performed his duty as Santiago's advocate[.]”). Here, Attorney
Kelly provides neither a reference to anything in the record arguably
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supporting the appeal nor a statement that there were no such references for
him to make. Additionally, a proper Anders brief “articulates the issues in
neutral form, cites relevant legal authorities, references appropriate portions
in the record to aid our review, and concludes that, after a thorough review of
the record, the appeal is wholly frivolous.” Commonwealth v. Wrecks, 931
A.2d 717, 720 (Pa. Super. 2007). In the argument section of the Anders
brief, Attorney Kelly provides a mere two-sentence discussion of the issue,
stating: “The only remaining issue is the allegation that the trial court failed
to comply with [Pa.R.Crim.P.] 590 in conducting the plea colloquy. However,
upon review of said colloquy, it is counsel’s opinion that said claim is baseless.
(N.T. 02-18-2020 p. 2-5.)” Anders Brief at 6. Attorney Kelly does not identify
the requirements of Rule 590, discuss the particulars of the trial court’s
colloquy, cite to any controlling case law, or explain in any fashion how he
reached his conclusion that the trial court’s colloquy complied with Rule 590
such that Dumay’s plea was made knowingly, voluntarily and intelligently.
See Santiago, 978 A.2d at 361 (holding that, in the Anders brief, “[c]ounsel
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.”).
Nevertheless, when direct appeal counsel has filed an Anders brief and
is requesting permission to withdraw from representation, this Court may
overlook certain procedural deficiencies in appellate court filings to ensure that
Anders counsel has not overlooked non-frivolous issues. See
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Commonwealth v. Cox, 231 A.3d 1011, 1016 (Pa. Super. 2020). Thus,
despite the deficiencies in Attorney Kelly’s filings in this Court, we may look
beyond such deficiencies to ensure that counsel has not overlooked any non-
frivolous issues.
We note that the mere filing of an Anders brief and/or petition to
withdraw will not serve to resuscitate claims that were already waived upon
the filing of the notice of appeal. See id.; see also Pa.R.A.P. 302(a)
(providing the general rule that “[i]ssues not raised in the lower court are
waived and cannot be raised for the first time on appeal”). Consequently,
while this Court could remand the matter once again for Attorney Kelly to
address the above-described deficiencies, we decline to do so under the
particular circumstances of this case. Such action would serve no purpose
other than to delay resolution of this appeal and waste judicial resources. We
reach this conclusion because, regardless of any expanded argument that
Attorney Kelly might make regarding the adequacy of the trial court’s colloquy,
and regardless of whether Dumay elected to proceed pro se or retain private
counsel to advance legal arguments in this Court regarding the inadequacy of
the colloquy, no issue regarding the colloquy or the guilty plea was preserved
for our review.
Importantly, the proper entry of a guilty plea acts to extinguish virtually
all legal challenges that could have been brought upon the trial or appeal of
the case. See Commonwealth v. Eisenberg, 98 A.3d 1268, 1276 (Pa.
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2014) (holding that, upon entry of a guilty plea, a defendant waives all claims
and defenses other than those sounding in the jurisdiction of the court, the
validity of the plea, and what has been termed the “legality” of the sentence
imposed).3
Here, Dumay challenges the validity of his guilty plea. In regards to
such a challenge, this Court has explained:
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. Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i). Failure to
employ either measure results in waiver. 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. Lincoln, 72 A.3d 606, 609-10 (Pa. Super. 2013) (internal
quotation marks and some citations omitted). Thus, in order to preserve an
issue related to the validity of a guilty plea, a defendant must either object
during the colloquy or otherwise raise the issue at the guilty plea hearing,
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3 Although Dumay did not raise any challenge to the jurisdiction of the court
or the legality of the sentence imposed, these claims present legal challenges
which are not waived for failure to assert them in the trial court, as this Court
may sua sponte consider lack of jurisdiction or an illegal sentence. See
Commonwealth v. Parker, 173 A.3d 294, 296 (Pa. Super. 2017) (holding
that this Court may consider the issue of jurisdiction sua sponte);
Commonwealth v. Randal, 837 A.2d 1211, 1215 (Pa. Super. 2003) (holding
that challenges to the legality of a sentence can be raised sua sponte by this
Court where our jurisdiction is firm). However, upon our review, we conclude
that the trial court had proper jurisdiction over the charges against Dumay,
and Dumay received a legal sentence.
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sentencing hearing, or in post-sentence motions. See id.; see also Pa.R.A.P.
302(a).
Instantly, our review of the record reveals that Dumay did not object to
his plea during the guilty plea hearing, did not seek to withdraw his plea at
sentencing, and did not challenge the colloquy or the plea in a motion to
reconsider or modify sentence. Accordingly, he failed to preserve any
challenge to his plea for our review. Moreover, as Dumay’s claims are waived,
they are wholly frivolous as a matter of law. See Commonwealth v. Tukhi,
149 A.3d 881, 888 (Pa. Super. 2016) (holding that “[a]n issue that is waived
is frivolous.”).
Based on the foregoing, we conclude that Dumay’s claims on appeal are
frivolous. Further, in accordance with Dempster, we have independently
reviewed the certified record in order to determine if there are any non-
frivolous issues that Attorney Kelly may have overlooked. Having found no
non-frivolous issues, we are constrained to agree with Attorney Kelly’s
assessment that the appeal is wholly frivolous, albeit for a different reason.
Therefore, we grant Attorney Kelly’s petition to withdraw and affirm the
judgment of sentence.
Petition to withdraw granted. Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/20/2021
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