Com. v. Ransome, D. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
DAQUASIA K. RANSOME, : No. 3411 EDA 2013
:
Appellant :
Appeal from the Judgment of Sentence, October 30, 2013,
in the Court of Common Pleas of Lehigh County
Criminal Division at Nos. CP-39-CR-0000274-2012,
CP-39-CR-0000436-2012, CP-39-CR-0000438-2012
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND STABILE, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 16, 2015
Appellant, Daquasia K. Ransome, appeals from the judgment of
sentence entered on October 30, 2013, in the Court of Common Pleas of
Lehigh County. Appointed counsel, Sean T. Poll, Esq., has filed a petition to
withdraw accompanied by an Anders brief.1 We grant counsel’s withdrawal
petition and affirm.
The facts of this matter, as aptly summarized by the trial court, are as
follows:
On December 22, 2011, members of the
Whitehall Police Department responded to Macy’s
Department Store, located at the Lehigh Valley Mall,
Whitehall, Lehigh County, Pennsylvania for the
report of a retail theft. Members of the loss
1
See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).
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prevention department had observed a female actor,
later identified as [appellant], select items of clothing
offered for sale while carrying what appeared to be
an empty purse. They observed [appellant] take
those items to a fitting room and later exit the fitting
room without any clothing in hand and the purse
visibly filled. She then exited the store, passing all
points of sale without rendering payment. She was
stopped by loss prevention and the items were
recovered, totaling $840.40.
From September 28, 2012 through October 2,
2012, [appellant] had access to Marcia Leishman’s
computer and used Ms. Leishman’s Visa Debit
account to make unauthorized online purchases,
including ordering pizza from Domino’s and to pay
for a room at the Staybridge Suites, located on
Airport Road, Allentown, Lehigh County,
Pennsylvania. [] Appellant also used Ms. Leishman’s
credit card to reserve a room at the Homewood
Suites in Allentown, Lehigh County, Pennsylvania.
The total value of all purchases made without
authorization was $1,125.00.
On October 3, 2012, shortly after 2 p.m.,
[appellant] and her co-defendants, Denisse Guzman
and Angel Gil, were in the area of Jefferson
Elementary School, in Emmaus, Lehigh County,
Pennsylvania. Mr. Gil had driven [appellant] and
Ms. Guzman in his sand-colored car. While in the
area, [appellant] saw a 16 year old female, later
identified as K.D., and directed Mr. Gil to pull the
vehicle over. Mr. Gil backed the car into an alley to
conceal his license plate. [Appellant] approached
K.D., while Mr. Gil and Ms. Guzman waited in the
car.
The victim related to the police that an
individual, later identified as [appellant], had a knife
with an extended blade in her hand and told K.D.
either “Give me the phone or I’ll stab you” or “Give
me the phone or I’ll cut you.” K.D. handed her black
IPhone 4S, valued at approximately $200.00, to
[appellant].
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Once [appellant] obtained the phone, she then
demanded the pass lock code and threatened the
juvenile again. This was witnessed by other
juveniles in the area. [Appellant] then ran back to
Mr. Gil’s car and the three actors fled the area.
Trial court opinion, 4/4/14 at 3-4 (citations omitted).
On August 6, 2013, appellant entered a negotiated guilty plea before
the Honorable Kelly L. Bannach. In case number 274 of 2012, appellant
pled guilty to retail theft; in case number 436 of 2013, appellant pled guilty
to one count of access device fraud; and in case number 438 of 2013,
appellant pled guilty to robbery and criminal conspiracy to commit robbery.2
On October 30, 2013, Judge Bannach sentenced appellant to an aggregate
term of four to eight years’ incarceration pursuant to the plea agreement.
On November 7, 2013, appellant filed a motion to modify sentence, which
was denied on November 18, 2013. (Docket #31, 32.)
Counsel filed a motion for leave to withdraw his appearance and a
timely notice of appeal on November 27, 2013. The trial court denied
counsel’s motion. Thereafter, counsel complied with the trial court’s order to
file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A. On January 17, 2014, trial counsel
was permitted to withdraw and Sean T. Poll, Esq., was appointed.
2
The Commonwealth withdrew the remaining charges and agreed that
appellant’s minimum sentence would not exceed four years.
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Subsequently, Attorney Poll filed a petition for leave to withdraw and
an Anders brief with this court. As counsel indicated in the letters to
appellant that, if allowed to withdraw, appellant has the right to represent
herself or hire private counsel, a per curiam order was entered on July 24,
2014, permitting appellant to file a response to counsel’s petition to
withdraw, either pro se or via privately retained counsel, within 30 days.
Appellant filed a pro se letter dated August 4, 2014, stating she is not
certain how to respond and she wants to proceed pro se.
“When presented with an Anders brief, this [c]ourt may not review
the merits of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa.Super.
2010), citing Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super.
2007) (en banc) (citation omitted).
In order for counsel to withdraw from an appeal
pursuant to Anders, certain requirements must be
met, and 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
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record, controlling case law, and/or
statutes on point that have led to the
conclusion that the appeal is frivolous.
Id., quoting Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
Our review of Attorney Poll’s application to withdraw, supporting
documentation, and Anders brief reveals that he has complied with all of
the foregoing requirements. We note that counsel also furnished a copy of
the brief to appellant. While counsel did not clearly advise appellant of her
right to retain new counsel, proceed pro se, or raise any additional points
that she deems worthy of this court’s attention, by per curiam order, this
court so advised to make sure appellant knew her rights. Appellant filed a
pro se response indicating she wanted the appeal to continue. Additionally,
counsel attached to the Anders petition a copy of the letter sent to
appellant as required under Commonwealth v. Millisock, 873 A.2d 748,
751 (Pa.Super. 2005). See Daniels, 999 A.2d at 594 (“While the Supreme
Court in Santiago set forth the new requirements for an Anders brief,
which are quoted above, the holding did not abrogate the notice
requirements set forth in Millisock that remain binding legal precedent.”).
As we find the requirements of Anders and McClendon are met, we will
proceed with our review.
Appellant challenges the discretionary aspects of her sentence. “It is
firmly established that a plea of guilty generally amounts to a waiver of all
defects and defenses except those concerning the jurisdiction of the court,
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the legality of the sentence and the validity of the guilty plea.”
Commonwealth v. Dalberto, 648 A.2d 16, 18 (Pa.Super. 1994) (emphasis
in original). Thus, when a defendant pleads guilty pursuant to a plea
agreement that includes a negotiated sentence, the defendant may not seek
a discretionary appeal as to the agreed-upon sentence. (Id. at 20-21.)
Permitting such an appeal would make a sham of the negotiated plea
process, thus depriving the Commonwealth from the benefit of the bargain,
and giving the defendant a second bite at the sentencing process. (Id. at
19-21.)
Appellant agreed to enter the above-stated guilty pleas, and in
exchange, the Commonwealth withdrew the remaining charges and agreed
that appellant’s minimum sentence would not exceed four years. (Notes of
testimony, 8/6/13 at 2, 6-7, 9-10; 10/30/13 at 2, 39-40.) The court noted
appellant received a substantial benefit from the plea bargain, as this
sentence was lower than what the guidelines called for (54-66 months’
incarceration). (Notes of testimony, 10/30/13 at 40.) The plea agreement
was accepted by the trial court, and appellant was sentenced in accordance
with the plea agreement. Therefore, appellant received the benefit of her
bargain, and she cannot now seek a discretionary appeal of her agreed-upon
penalties. Commonwealth v. Reichle, 589 A.2d 1140, 1141 (Pa.Super.
1991) (“This court has no authority to permit a discretionary appeal of a
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negotiated sentence agreed upon by the parties and accepted by the
court.”). We therefore affirm judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/16/2015
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