Com. v. Slider, R. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
RICHARD SLIDER
Appellant No. 587 WDA 2016
Appeal from the Judgment of Sentence April 5, 2016
in the Court of Common Pleas of Erie County Criminal Division
at No(s): CP-25-CR-0002332-2015
BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD,* J.
MEMORANDUM BY FITZGERALD, J.: FILED: October 14, 2016
Appellant, Richard Slider, appeals from the judgment of sentence
entered in the Erie County Court of Common Pleas following his guilty plea
to retail theft.1 Appellant’s counsel, Tina M. Fryling, Esq., has filed a petition
to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981). Counsel’s brief
presents the sole issue of whether Appellant’s plea was invalid due to his
lack of representation by counsel. We affirm and grant counsel’s petition to
withdraw.
The relevant facts and procedural history of this case are as follows.
On July 6, 2015, Appellant stole a mountain bike, valued at $179, from a
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 3929(a)(1). The offense was graded as a misdemeanor of the
second degree. See id. § 3929(b)(1)(ii).
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Walmart in Erie. Appellant appeared pro se at his guilty plea proceeding on
February 16, 2016. Following an on-the-record colloquy and Appellant’s
signing a statement waiving his right to counsel, Appellant pled guilty to
retail theft. On April 5, 2016, Appellant again waived his right to counsel
and appeared pro se at sentencing, at which the court imposed a sentence
of two to twenty-three-and-one-half months’ imprisonment. On April 12,
2016, Appellant filed a pro se motion to withdraw his guilty plea,2 as well as
a request for the appointment of counsel. The court denied Appellant’s
motion the following day, but appointed the Erie County Public Defender’s
Office to represent Appellant. Appellant timely filed a notice of appeal on
April 25, 2016. The court ordered Appellant on April 26, 2016, to file a
concise statement of errors complained of on appeal, and counsel timely
filed a statement of intent to file an Anders brief.
Counsel filed an Anders brief and a petition for leave to withdraw with
this Court. As a prefatory matter, we examine whether counsel complied
with the requirements of Anders and McClendon, as clarified by the
2
In Commonwealth v. Lincoln, 72 A.3d 606 (Pa. Super. 2013), this Court
opined:
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).
Id. at 609–10.
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Pennsylvania Supreme Court in Commonwealth v. Santiago, 978 A.2d
349 (Pa. 2009).
This Court must first pass upon counsel’s petition to
withdraw before reviewing the merits of the underlying
issues presented by [the appellant].
Prior to withdrawing as counsel on a direct appeal under
Anders, counsel must file a brief that meets the
requirements established by our Supreme Court in
Santiago. The brief 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 reasons for concluding 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. 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, 879-80 (Pa. Super. 2014)
(some citations omitted). If counsel complies with these requirements, “we
will make a full examination of the proceedings in the lower court and render
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an independent judgment [as to] whether the appeal is in fact ‘frivolous.’”
Id. at 882 n.7 (citation omitted).
Instantly, counsel provided a factual and procedural summary of the
case with citations to the record. Anders Brief at 2. Counsel explained the
relevant law, discussed why Appellant’s issue is meritless, and determined
the appeal is frivolous. Id. at 2-4. Counsel provided Appellant with a copy
of the Anders brief and a letter advising Appellant of his right to retain new
counsel, proceed pro se, and raise additional issues in this Court. See
Orellana, 86 A.3d at 879-80; Counsel’s Pet. to Withdraw, 8/5/16. In light
of the foregoing, we hold counsel has complied with the requirements of
Santiago. See Orellana, 86 A.3d at 879-80. Appellant has not filed a pro
se or counseled brief. We now examine the record to determine whether the
appeal is wholly frivolous. See id. at 882 n.7.
The Anders brief raises the following issue for our review: whether
Appellant’s plea was “invalid based on the fact that he was unrepresented by
counsel when he entered his plea[.]” Anders Brief at 1. Following a review
of the record, counsel determined Appellant knowingly waived his right to
counsel and entered his guilty plea. Id. at 3-4.
In Commonwealth v. Muntz, 630 A.2d 51 (Pa. Super. 1993), this
court opined:
A significant distinction exists between a pre-sentence
request to withdraw a guilty plea and a post-sentence
request to do so.
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The standard for allowing withdrawal of a guilty plea
prior to sentence was articulated in Commonwealth v.
Forbes, [ ] 299 A.2d 268, 271 ([Pa.] 1973) wherein we
quoted with approval the following:
Before sentence, the court in its discretion may allow
the defendant to withdraw his plea for any fair and
just reason unless the prosecution has been
substantially prejudiced by reliance upon the
defendant’s plea. Because the plea involves the
simultaneous waiver of so many constitutional rights,
a request to withdraw prior to sentencing is liberally
allowed.
When considering a petition to withdraw a guilty plea
submitted to a trial court after sentencing, however,
it is well-established that a showing of prejudice on
the order of manifest injustice, is required before
withdrawal is properly justified. Post-sentencing
attempts to withdraw a guilty plea must sustain this
more substantial burden because of the recognition
that a plea withdrawal can be used as a sentence-
testing device. If a plea of guilty could be retracted
with ease after sentencing, the accused might be
encouraged to plea[d] guilty to test the weight of
potential punishment, and withdraw the plea if the
sentence were unexpectedly severe.
Id. at 53 (some citations and quotation marks omitted).
In Commonwealth v. Muhammad, 794 A.2d 378 (Pa. Super. 2002),
this Court held that:
to establish manifest injustice, [the defendant] must show
that his plea was entered in an involuntary, unknowing, or
unintelligent manner. To ascertain whether [the
defendant] acted in such manner, we must examine the
guilty plea colloquy. The colloquy must inquire into the
following areas: (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. This Court evaluates the
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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.
Id. at 383–84 (citations and quotation marks omitted).
Moreover,
A criminal defendant’s right to counsel under the Sixth
Amendment includes the concomitant right to waive
counsel’s assistance and proceed to represent oneself at
criminal proceedings. Faretta v. California, 422 U.S. 806[ ] (1975). The right to appear pro se is guaranteed as
long as the defendant understands the nature of his
choice. In Pennsylvania, Rule of Criminal Procedure 121
sets out a framework for inquiry into a defendant’s request
for self-representation. Pa.R.Crim.P. 121. Where a
defendant knowingly, voluntarily, and intelligently seeks to
waive his right to counsel, the trial court, in keeping with
Faretta, must allow the individual to proceed pro se. See
Commonwealth v. Starr, [ ] 664 A.2d 1326, 1335 ([Pa.]
1995) (holding that a defendant must demonstrate a
knowing waiver under Faretta). See also
Commonwealth v. McDonough, [ ] 812 A.2d 504, 508
([Pa.] 2002) (concluding that Faretta requires an on-the-
record colloquy in satisfaction of Pa.R.Crim.P. 121, which
colloquy may be conducted by the court, the prosecutor, or
defense counsel.)[.]
Commonwealth v. El, 977 A.2d 1158, 1162-63 (Pa. 2009) (some citations
and footnotes omitted).
Pa.R.Crim.P. 121(A) provides in pertinent part:
(2) To ensure that the defendant’s waiver of the right to
counsel is knowing, voluntary, and intelligent, the judge or
issuing authority, at a minimum, shall elicit the following
information from the defendant:
(a) that the defendant understands that he or she
has the right to be represented by counsel, and the
right to have free counsel appointed if the defendant
is indigent;
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(b) that the defendant understands the nature of
the charges against the defendant and the elements
of each of those charges;
(c) that the defendant is aware of the permissible
range of sentences and/or fines for the offenses
charged;
(d) that the defendant understands that if he or she
waives the right to counsel, the defendant will still be
bound by all the normal rules of procedure and that
counsel would be familiar with these rules;
(e) that the defendant understands that there are
possible defenses to these charges that counsel
might be aware of, and if these defenses are not
raised at trial, they may be lost permanently; and
(f) that the defendant understands that, in addition
to defenses, the defendant has many rights that, if
not timely asserted, may be lost permanently; and
that if errors occur and are not timely objected to, or
otherwise timely raised by the defendant, these
errors may be lost permanently.
Pa.R.Crim.P. 121(A)(2)(a)-(f).
Here, prior to Appellant’s entry of his guilty plea, the Commonwealth
read to him, inter alia, a defendant’s rights concerning representation by
counsel:
[Commonwealth]: Now, if you’re here representing
yourself, there’s a right to counsel waiver form. . . . But
you have to fill this out if you’re going to enter a guilty
plea. Essentially it’s saying you know you have the right
to an attorney, the right to a free attorney if you could not
afford one and you qualified with the Public Defender’s
Office, but for whatever reason you are giving up your
right to an attorney just for today’s proceedings and
today’s proceedings only.
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If, for whatever reason, there’s another proceeding in
your case and you wish to hire an attorney or apply with
the Public Defender, you would have the opportunity to do
so. But for today’s purposes if you’re representing
yourself, we’re going to have a right to counsel waiver
form for you to fill out.
The correct answers, just so you know, one through
nine are “yes.” Question ten is asking if anybody is forcing
you or pressuring you to proceed without an attorney, and
that should be “no.”
* * *
So now that I’ve went over that, . . . you have been
charged with crimes, you’ve received Criminal
Informations, you’ve had the opportunity to go over that
with an attorney if you’ve chose to hire an attorney or
qualify for the Public Defender’s Office, and then you must
understand that when you sign a Statement of
Understanding of Rights Prior to Entering a Guilty Plea that
you’re signing it knowingly, voluntarily, and intelligently
without any pressure or promise that’s not reflected in the
four corners of this document. You must understand that
when you sign this. Okay?
N.T. Plea, 2/16/16, at 3-5.
The Commonwealth then went on to colloquy Appellant regarding his
guilty plea:
[Commonwealth]: . . . Now, [Appellant], you were present
when I went over the rights you have and you give up
when you enter a guilty plea; is that correct?
[Appellant]: Yes, sir.
[Commonwealth]: Did you understand those rights?
[Appellant]: Yes, sir.
[Commonwealth]: Okay. Here at Count 1 you face up to
$5,000 in fines and two years of incarceration. Is that
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your understanding of the maximum penalty that can be
imposed by pleading guilty today?
[Appellant]: Yes, sir.
[Commonwealth]: And then the terms of the plea are that
you will plead guilty as charged, is that your understanding
as well?
[Appellant]: Yes, sir.
[Commonwealth]: Do you have any other questions
regarding these rights?
[Appellant]: No, sir.
[Commonwealth]: Okay. And for the record, you have
correctly filled out your right to counsel waiver form. And
is anybody forcing you or pressuring you to proceed
without an attorney today?
[Appellant]: No, sir.
[Commonwealth]: Does the [c]ourt accept his waiver, first
of all?
The Court: The [c]ourt hereby finds that he’s voluntarily,
knowingly, and understandingly waived his right to
counsel.
Id. at 9-10.
In addition to his colloquy, Appellant completed and signed a
“Statement of Understanding of Rights” before entering his guilty plea. In
this Statement, Appellant acknowledged that he had a right to an attorney,
including one free of charge, and that he was waiving his right to counsel
during plea proceedings. Therefore, Appellant knowingly, voluntarily, and
intelligently waived his right to counsel when he entered his guilty plea. See
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El, 977 A.2d at 1162-63. Thus, Appellant cannot show prejudice on the
order of manifest injustice, which is required to justify the withdrawal of a
guilty plea after sentencing. See Muhammad, 794 A.2d at 383-84; Muntz,
630 A.2d at 53.
Our independent review of the record reveals no other issues of
arguable merit. See Orellana, 86 A.3d at 882 n.7. Accordingly, we grant
counsel’s petition for leave to withdraw and affirm the judgment of sentence.
Counsel’s petition to withdraw granted. Judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2016
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