Com. v. Mahendru, Y. ( 2018 )

J-A05043-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
YVETTE MAHENDRU :
: No. 2058 EDA 2017
Appellant
Appeal from the Judgment of Sentence May 23, 2017
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0000834-2017
BEFORE: DUBOW, J., MURRAY, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED MARCH 06, 2018
Appellant, Yvette Mahendru, appeals from the judgment of sentence
entered in the Court of Common Pleas of Chester County following her guilty
plea to one count of simple assault and one count of possession of an
instrument of crime.1 In addition to this appeal, appellate counsel has filed a
petition seeking to withdraw his representation and a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 602 Pa. 159, 978 A.2d 349 (2009). After a careful review, we
grant counsel’s petition to withdraw and affirm Appellant’s judgment of
sentence.
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1 18 Pa.C.S.A. §§ 2701(a)(1) and 907(a), respectively.
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* Former Justice specially assigned to the Superior Court.
J-A05043-18
The relevant facts and procedural history are as follows: Appellant was
arrested, and on May 23, 2017, represented by counsel, she entered a
negotiated guilty plea to the offenses indicated supra.2 During the guilty plea
colloquy, the Commonwealth recited the following facts underlying Appellant’s
plea:
With respect to 834 of 2017,. . .[t]he facts in support of the
plea [happened] on February 12th of 2017 at 577 East Chestnut
Street in the City of Coatesville, Pennsylvania. Coatesville police
officers were dispatched to that location for a domestic. Upon
Officer William Carter’s arrival he observed that [Appellant] had
blood about her mouth. The officer asked where the male party
was and [Appellant] said that he was not home and that nothing
happened.
At that point, the police heard a male voice from within the
apartment and they found [Appellant’s] boyfriend inside. His
name is Marcel Chambers. Mr. Chambers had a bleeding wound
on the right side of his face. It appeared to be a small slash
wound. Both parties were less than cooperative with the police.
They did tell the police that they had been arguing.
[Appellant] claimed her boyfriend had struck her. Mr. Chambers
reported that there was an argument [when] he was packing his
bag to leave the apartment and that is when [Appellant] went into
the kitchen and got a knife. Before he could react, [Appellant]
was able to cut him.
Mr. Chambers was treated and released at the Brandywine
Hospital. He received four stitches to his face. Both parties were
actually charged. Ultimately, the police did not find [Appellant’s]
version credible in light of the medical records and interviews that
were done at the hospital. And Mr. Chambers’ charges were
dropped at the preliminary hearing.
N.T., 5/23/17, at 1-2.
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2 On May 23, 2017, Appellant entered a negotiated guilty plea to charges
brought at CP-15-CR-0003091-2017 and CP-15-CR-0000834-2017.
However, Appellant filed an appeal solely from the latter.
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After accepting Appellant’s guilty plea, the trial court sentenced
Appellant in accordance with the parties’ plea agreement; namely, four
months to twenty-three months in prison for assault, to be followed by two
years of probation for possessing an instrument of crime. Thereafter, despite
being informed of her right to file a post-sentence motion, including a motion
to withdraw her guilty plea or to modify her sentence, Appellant did not file a
post-sentence motion. Instead, on June 22, 2017, Appellant filed a timely
notice of appeal to this Court. The trial court directed Appellant to file a
Pa.R.A.P. 1925(b) statement, and counsel filed a statement of intent to file an
Anders brief under Pa.R.A.P. 1925(c)(4). The trial court filed a brief opinion.
Thereafter, appellate counsel filed with this Court a petition to withdraw his
representation, and he submitted an Anders brief.
When faced with a purported Anders brief, this Court may not review
the merits of the issues raised therein without first passing on the request to
withdraw. Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.Super. 2005).
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 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.
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Santiago, 602 Pa. at 178-79, 978 A.2d at 361. Counsel must also provide
the appellant with a copy of the Anders brief, together with a letter that
advises the appellant of his or her 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. Nischan, 928 A.2d 349,
353 (Pa.Super. 2007) (citation omitted).
Instantly, appellate counsel provided a summary of the history of the
case, referred to anything in the record that he believed arguably supports
the appeal, set forth his conclusion that the appeal is frivolous, and stated in
detail his reasons for so concluding. Moreover, counsel has provided this
Court with a copy of the letter, which counsel sent to Appellant informing her
of her right to retain new counsel, proceed pro se, or raise any points Appellant
deems worthy of this Court’s attention.3 Accordingly, we conclude counsel
has substantially complied with the requirements of Anders and Santiago.
We, therefore, turn to the issue presented in the Anders brief to make an
independent judgment as to whether the appeal is, in fact, wholly frivolous.
Commonwealth v. Bynum-Hamilton, 135 A.3d 179 (Pa.Super. 2016).
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3 Appellant has filed neither a pro se brief nor a counseled brief with new,
privately-retained counsel.
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On appeal, the sole issue presented by Appellant is whether she should
be permitted to withdraw her guilty plea since it was unknowingly and
involuntarily entered. As indicated supra, Appellant did not move to withdraw
her guilty plea or file any post-sentence motion to preserve her claim in the
court below. Therefore, Appellant has waived this issue for appellate review.
See Pa.R.A.P. 302 (issues not presented to the trial court cannot be raised for
the first time on appeal); Commonwealth v. D'Collanfield, 805 A.2d 1244,
1246 (Pa.Super. 2002) (issues related to deficiency of guilty plea waived by
failing to object at the time of the sentencing hearing or through a post-
sentence motion).
For all of the foregoing reasons, and after an independent review, we
conclude Appellant is not entitled to relief and we grant counsel's petition to
withdraw his representation.
Judgment of Sentence Affirmed. Petition to Withdraw as Counsel
Granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/6/18
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