Com. v. Kiefer, V. ( 2023 )

J-A08013-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
VOLKER KIEFER :
:
Appellant : No. 1519 WDA 2021
Appeal from the Judgment of Sentence Entered October 19, 2021
In the Court of Common Pleas of Cameron County
Criminal Division at No.: CP-12-CR-0000018-2021
BEFORE: STABILE, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY STABILE, J.: FILED: July 27, 2023
Appellant Volker Kiefer appeals from the October 19, 2021 judgment of
sentence entered in the Court of Common Pleas of Cameron County (“trial
court”), following his guilty plea to four counts of possession of child
pornography under Section 6312(d) of the Crimes Code, 18 Pa.C.S.A.
§ 6312(d). His counsel has filed a brief and an application to withdraw
pursuant to Anders v. California, 386 U.S. 738 (1969), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we
affirm the judgment of sentence and grant counsel’s application to withdraw.
The facts and procedural history of this case are undisputed. Briefly, in
connection with possession of child pornography, Appellant pled guilty to the
aforementioned crimes on July 7, 2021. The trial court, on October 19, 2021,
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* Retired Senior Judge assigned to the Superior Court.
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sentenced Appellant to an aggregate term of 3 to 10 years’ imprisonment.1
On October 29, 2021, Appellant filed a post-sentence motion, challenging only
his sentence. The trial court denied the motion on November 3, 2021.
Appellant timely appealed. On February 9, 2022, the trial court directed
Appellant to file a Pa.R.A.P. 1925(b) statement of errors complained of on
appeal. Appellant failed to comply.
On November 16, 2022, Appellant’s counsel filed in this Court an
Anders brief, wherein counsel principally challenged the validity of Appellant’s
guilty plea. Anders Brief at 7-11. On January 25, 2023, Appellant’s counsel
filed an application to withdraw as counsel.
On May 24, 2023, we directed Appellant’s counsel to comply with the
trial court’s February 9, 2022 order by either filing a Rule 1925(b) statement
or a statement of intent to withdraw under Pa.R.A.P. 1925(c)(4).2 On June
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1 Consistent with the terms of the plea agreement, the trial court imposed
concurrent sentences for each count. See N.T., Guilty Plea, 7/7/21, at 5
(noting that “the Commonwealth has agreed to run those counts concurrent
with one another.”); see also N.T., Sentencing, 10/19/21, at 15 (“The
agreement that the Commonwealth entered with [Appellant] was that the
Commonwealth would agree that those charges – or to request that those
charges be run concurrently with one another.”).
2 Rule 1925(c)(4) provides:
In a criminal case, counsel may file of record and serve on the
judge a statement of intent to file an [Anders] brief in lieu of filing
a Statement. If, upon review of the [Anders] brief, the appellate
court believes that there are arguably meritorious issues for
review, those issues will not be waived; instead, the appellate
court may remand for the filing of a Statement, a supplemental
(Footnote Continued Next Page)
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14, 2023, Appellant’s counsel filed a notice of intent to file Anders/Santiago
brief pursuant to Pa.R.A.P. 1925(c)(4). The court then filed a Pa.R.A.P.
1925(a) opinion.
When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first examining counsel’s petition to
withdraw. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.
2007) (en banc). It is well-established that, in requesting a withdrawal,
counsel must satisfy the following procedural requirements: 1) petition the
court for leave to withdraw stating that, after making a conscientious
examination of the record, counsel has determined that the appeal would be
frivolous; 2) provide a copy of the brief to the defendant; and 3) advise the
defendant that he or she has the right to retain private counsel, proceed pro
se or raise additional arguments that the defendant considers worthy of the
court’s addition. Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.
2009).
Instantly, counsel’s application to withdraw from representation
provides that counsel reviewed the record and concluded that the appeal is
frivolous. Furthermore, counsel notified Appellant that he was seeking
permission to withdraw and provided Appellant with copies of the petition to
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opinion pursuant to Rule 1925(a), or both. Upon remand, the trial
court may, but is not required to, replace appellant’s counsel.
Pa.R.A.P. 1925(c)(4).
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withdraw and his Anders brief. Counsel also advised Appellant of his right to
retain new counsel, proceed pro se, or raise any additional points he deems
worthy of this Court’s attention. Accordingly, we conclude that counsel has
satisfied the procedural requirements of Anders.
We next must determine whether counsel’s Anders brief complies with
the substantive requirements of Santiago, wherein our Supreme 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.
Santiago, 978 A.2d at 361. Here, our review of counsel’s brief indicates that
he has complied with the briefing requirements of Santiago. We, therefore,
conclude that counsel has satisfied the minimum requirements of
Anders/Santiago.
Once counsel has met his obligations, “it then becomes the responsibility
of the reviewing court to make a full examination of the proceedings and make
an independent judgment to decide whether the appeal is in fact wholly
frivolous.” Santiago, 978 A.2d at 355 n.5.; see Commonwealth v. Yorgey,
188 A.3d 1190, 1195 (Pa. Super. 2018) (en banc) (noting this Court’s
responsibility to conduct “a full examination of all the proceedings, to decide
whether the case is wholly frivolous.”) (quotation omitted).
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We now turn to the merits of Appellant’s appeal, wherein he challenges
the validity of his guilty plea. This issue, however, is waived. Appellant did
not object to the guilty plea during the plea colloquy or file any post-sentence
motions seeking to withdraw his guilty plea. See Commonwealth v.
Lincoln, 72 A.3d 606, 610-11 (Pa. Super. 2013) (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), appeal denied,
87 A.3d 319 (Pa. 2014); Commonwealth v. D’Collanfield, 805 A.2d 1244,
1246 (Pa. Super. 2002) (noting that the appellant’s claim challenging the
validity of guilty plea was waived because the appellant neither objected
during colloquy nor challenged it in a post-sentence motion); see also
Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i) (stating post-sentence motion
challenging validity of plea of guilty or nolo contendere shall be filed no later
than 10 days after imposition of sentence). Accordingly, Appellant is not
entitled to relief.3
Even if this issue were not waived, Appellant still would not obtain relief.
To be valid, a plea must be voluntary, knowing, and intelligent.
Commonwealth v. Persinger, 615 A.2d 1305, 1307 (Pa. 1992). To ensure
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3 Separately, to the extent there is any suggestion that the trial court abused
its sentencing discretion, we disagree. Possession of child pornography under
Section 6312(d) is graded as a felony of the second degree. 18 Pa.C.S.A. §
6312(d.1). The statutory maximum sentence for a felony of the second
degree is 10 years’ imprisonment. 18 Pa.C.S.A. § 1103(2). The parties agree
that a standard range sentence would be 22 to 36 months’ imprisonment. The
trial court, here, sentenced Appellant to a minimum of 36 months’ (3 years)
and a maximum of 120 months’ (10 years) imprisonment.
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these requirements are met, Rule 590 of the Pennsylvania Rules of Criminal
Procedure requires that a trial court conduct a separate inquiry of the
defendant before accepting a guilty plea. It first requires that a guilty plea be
offered in open court. The rule then provides a procedure to determine
whether the plea is voluntarily, knowingly, and intelligently entered. As the
Comment to Rule 590 provides, at a minimum, the trial court should ask
questions to elicit the following information:
(1) Does the defendant understand the nature of the charges to
which he or she is pleading guilty or nolo contendere?
(2) Is there a factual basis for the plea?
(3) Does the defendant understand that he or she has the right to
trial by jury?
(4) Does the defendant understand that he or she is presumed
innocent until found guilty?
(5) Is the defendant aware of the permissible range or sentences
and/or fines for the offenses charged?
(6) Is the defendant aware that the judge is not bound by the
terms of any plea agreement tendered unless the judge accepts
such agreement?
Pa.R.Crim.P. 590, Comment.4 In Commonwealth. v. Yeomans, 24 A.3d
1044 (Pa. Super. 2011), this Court explained:
In order for a guilty plea to be constitutionally valid, the guilty
plea colloquy must affirmatively show that the defendant
understood what the plea connoted and its consequences. This
determination is to be made by examining the totality of the
circumstances surrounding the entry of the plea. Thus, even
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4The Comment also includes a seventh question, which is applicable only
when a defendant pleads guilty to murder generally.
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though there is an omission or defect in the guilty plea colloquy,
a plea of guilty will not be deemed invalid if the circumstances
surrounding the entry of the plea disclose that the defendant had
a full understanding of the nature and consequences of his plea
and that he knowingly and voluntarily decided to enter the plea.
Yeomans, 24 A.3d at 1047 (Pa. Super. 2011) (citation omitted).
The longstanding rule of Pennsylvania law is that a defendant may
not challenge his guilty plea by asserting that he lied while under
oath, even if he avers that counsel induced the lies. A person who
elects to plead guilty is bound by the statements he makes in open
court while under oath and may not later assert grounds for
withdrawing the plea which contradict the statements he made at
his plea colloquy. . . . [A] defendant who elects to plead guilty
has a duty to answer questions truthfully.
Id. “The law does not require that [the defendant] be pleased with the
outcome of his decision to enter a plea of guilty: All that is required is that
[his] decision to plead guilty be knowingly, voluntarily and intelligently made.”
Commonwealth v. Yager, 685 A.2d 1000, 1004 (Pa. Super. 1996) (en banc)
(citations and internal quotation marks omitted).
Here, our review of the written and oral colloquies reveals that
Appellant’s guilty plea was valid, i.e., entered knowingly, voluntarily and
intelligently. At the time of the colloquy, Appellant was 56 years old, had
completed high school, and served in law enforcement. He affirmed that he
was able to read, write and understand English. Appellant agreed with the
factual basis proffered by the Commonwealth to bring the underlying charges.
N.T., Guilty Plea, 7/7/21, at 9-10 (Appellant “was in possession of four images
that depicted children under the age of 18 years in a state of nudity and/or
engaging in sexual activity which depicted indecent contact.”). Appellant
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agreed he could face a maximum prison term of 10 years and a maximum fine
of $25,000. Appellant further agreed that by pleading guilty he also was
giving up his pretrial rights. Appellant also agreed that he understood the
consequences of relinquishing his right to a trial by a judge or a jury and that
at trial he would be presumed innocent until proven guilty by the
Commonwealth beyond a reasonable doubt. Moreover, Appellant agreed that
by pleading guilty he would be giving up his right to trial and accepting limited
appeal rights following imposition of sentence. He affirmed that he was
pleading guilty on his own volition and that he understood the terms and
consequences of doing so. Appellant further stated that no one promised or
threatened him to plead guilty. Appellant agreed that he has had sufficient
time to discuss the terms of the plea with his counsel and that he was satisfied
by his counsel’s representation in this case. Thus, based upon our review of
the record, Appellant’s claim that his guilty plea was involuntary, unintelligent,
or unknowing lacks merit and is belied by his written and oral colloquies.
Finally, after reviewing the issue contained in the Anders brief, we
agree with counsel that the instant appeal is wholly frivolous. Furthermore,
“after conducting a full examination of all the proceedings as required
pursuant to Anders, we discern no non-frivolous issues to be raised on
appeal.” Yorgey, 188 A.3d at 1195. We, therefore, grant counsel’s
application to withdraw and affirm the judgment of sentence.
Judgment of sentence affirmed. Application to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/27/2023
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