Com. v. Reed, N. ( 2020 )

J-S14024-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
NATHAN REED :
:
Appellant : No. 2956 EDA 2019
Appeal from the Judgment of Sentence Entered September 9, 2019
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0004156-2019
BEFORE: BOWES, J., KING, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY KING, J.: FILED AUGUST 14, 2020
Appellant, Nathan Reed, appeals from the judgment of sentence entered
in the Delaware County Court of Common Pleas, following his guilty plea to
failure to comply with registration requirements.1 We affirm and grant
counsel’s petition to withdraw.
The relevant facts and procedural history of this case are as follows. In
2004, Appellant pled guilty to one count of aggravated indecent assault of a
person less than sixteen years of age. The court sentenced Appellant to six
(6) to twenty-four (24) months’ imprisonment and required him to register as
a sex offender for life.
In June 2019, police discovered Appellant had been staying at his
____________________________________________
1 18 Pa.C.S.A. § 4915.1(a)(1).
J-S14024-20
girlfriend’s home, rather than at his registered address. On August 7, 2019,
the Commonwealth charged Appellant with three counts of failing to update
his information. On September 9, 2019, Appellant entered a negotiated guilty
plea to one count of failure to comply with registration requirements, per 18
Pa.C.S.A. § 4915.1(a)(1). 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 same day to fifteen (15) to thirty (30) months’
imprisonment. Appellant did not file a post-sentence motion.
On October 9, 2019, Appellant timely filed a notice of appeal. The court
ordered Appellant on October 11, 2019, to file a concise statement of errors
complained of on appeal per Pa.R.A.P. 1925(b). On November 8, 2019,
counsel filed a statement under Pa.R.A.P. 1925(c)(4) of his intent to file a
brief pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18
L. Ed. 2d 493 (1967). Counsel filed a petition to withdraw and an Anders brief
in this Court on January 23, 2020.
As a preliminary matter, counsel seeks to withdraw representation
under Anders 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
-2-
J-S14024-20
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
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:
-3-
J-S14024-20
[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, appellate 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 on appeal 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 history of this case. Counsel’s argument refers to relevant
law that might possibly support Appellant’s issue. Counsel further states the
reasons for counsel’s 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:
Whether the negotiated guilty plea entered in this matter
was knowing and voluntary[?]
-4-
J-S14024-20
(Anders Brief at 5).
“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).
Instantly, Appellant did not seek to withdraw his guilty plea at any time
orally on the record during the plea colloquy or by filing a timely post-sentence
motion. Therefore, his issue on appeal is waived. See id.; Lincoln, supra.
Following our independent review of the record, we agree the appeal is
frivolous.2 See Dempster, supra; Palm, supra. Accordingly, we affirm and
____________________________________________
2 During our review of this case, we discovered that the Commonwealth
mischarged Appellant under Section 4915.1, when in fact, Appellant should
have been charged under Section 4915.2. Compare 18 Pa.C.S.A. § 4915.1
(applying to individuals who committed offense on or after December 20,
2012) with 18 Pa.C.S.A. § 4915.2 (pertaining to individuals who committed
crime on or after April 22, 1996, but before December 20, 2012). As a result,
Appellant entered a negotiated guilty plea to failure to register per Section
4915.1 (Revised Subchapter H of SORNA II), rather than Section 4915.2
(Subchapter I of SORNA II). Although we conclude Appellant has waived any
challenge to the validity of his guilty plea on direct review, our disposition does
not preclude Appellant from pursuing a claim challenging the ineffective
-5-
J-S14024-20
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: 8/14/20
____________________________________________
assistance of counsel on collateral review for failing to object to the
Commonwealth’s charging error. See Commonwealth v. Grant, 572 Pa. 48,
67, 813 A.2d 726, 738 (2002) (stating: “as a general rule, a petitioner should
wait to raise claims of ineffective assistance of trial counsel until collateral
review”).
-6-