Com. v. Brye, S. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
Appellee
v.
SEAN BRYE,
Appellant No. 1813 EDA 2014
Appeal from the Judgment of Sentence of June 9, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007174-2013
BEFORE: DONOHUE, OLSON AND MUSMANNO, JJ.
MEMORANDUM BY OLSON, J.: FILED APRIL 27, 2015
Appellant, Sean Brye, appeals from the judgment of sentence entered
on June 9, 2014. On this direct appeal, Appellant’s court-appointed counsel
filed both a petition to withdraw as counsel and an accompanying brief
pursuant to Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981),
and its federal predecessor, Anders v. California, 386 U.S. 738 (1967).
We conclude that Appellant’s counsel has complied with the procedural
requirements necessary to withdraw. Furthermore, after independently
reviewing the record, we conclude that the appeal is wholly frivolous. We,
therefore, grant counsel’s petition to withdraw and affirm the judgment of
sentence.
The factual background of this case is as follows. On November 28,
2010, Appellant accosted Brian Posada (“Brian”) in the 1800 block of East
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Harold Street. Appellant demanded money that he contended Brian owed
him. Appellant left, came back, and began to threaten to kill Brian.
Appellant then grabbed Brian, began choking him, and threw him into a car.
Appellant retrieved a knife from his pocket and stabbed Brian in the back.
Brian’s mother, Soth Posada, attempted to disarm Appellant and she was
stabbed in the hand.
The procedural history of this case is as follows. On June 7, 2013,
Appellant was charged via criminal information with aggravated assault. 1 On
February 10, 2014, Appellant pled guilty to that lone charge. On June 9,
2014, Appellant was sentenced to an aggregate term of three to ten years’
imprisonment. The timely appeal followed.2
Appellant’s counsel raises four issues in her Anders brief:
1. Whether the trial court had jurisdiction over this case?
2. Whether Appellant’s plea was entered into knowingly and
voluntarily?
3. Whether plea counsel provided ineffective assistance?
4. Whether Appellant’s sentence was illegal?
See generally Anders Brief at 7-9.
1
18 Pa.C.S.A. § 2702(a)(1).
2
On June 17, 2014, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On July 10, 2014, Appellant’s counsel filed notice of her
intent to file an Anders brief with this Court. See Pa.R.A.P. 1925(c)(4). On
September 3, 2014, the trial court issued a statement in lieu of an opinion.
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Before reviewing the merits of this appeal, this Court must first
determine whether counsel has fulfilled the necessary procedural
requirements for withdrawing as counsel. See Commonwealth v.
Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en banc). To withdraw
under Anders, court-appointed counsel must satisfy certain technical
requirements. First, counsel must “petition the court for leave to withdraw
and state that after making a conscientious examination of the record, [s]he
has determined that the appeal is frivolous.” Commonwealth v.
Martuscelli, 54 A.3d 940, 947 (Pa. Super. 2012), quoting Commonwealth
v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Second, counsel must file an
Anders brief, in which counsel:
(1) provide[s] a summary of the procedural history and facts,
with citations to the record;
(2) refer[s] to anything in the record that counsel believes
arguably supports the appeal;
(3) set[s] forth counsel’s conclusion that the appeal is frivolous;
and
(4) state[s] 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.
Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014), quoting
Santiago, 978 A.2d at 361.
Finally, counsel must furnish a copy of the Anders brief to her client
and “advise[] him of his right to retain new counsel, proceed pro se[,] or
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raise any additional points that he deems worthy of the court’s attention,
and attach[] to the Anders petition a copy of the letter sent to the client.”
Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010) (citation
omitted).
If counsel meets all of the above 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, quoting
McClendon, 434 A.2d at 1187. It is only when both the procedural and
substantive requirements are satisfied that counsel will be permitted to
withdraw. In the case at bar, counsel has met all of the above procedural
obligations. We now turn to whether this appeal is wholly frivolous.
The first issue raised in counsel’s Anders brief is whether the trial
court possessed jurisdiction over this case. “Jurisdiction relates to the
court’s power to hear and decide the controversy presented. All courts of
common pleas have statewide subject matter jurisdiction in cases arising
under the Crimes Code.” Commonwealth v. Gross, 101 A.3d 28, 32 (Pa.
2014) (internal citation, quotation marks, and alteration omitted). In this
case, the aggravated assault occurred in Philadelphia County, which is in the
Commonwealth of Pennsylvania. Therefore, all courts of common pleas in
the Commonwealth, including the Court of Common Pleas of Philadelphia
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County, possessed jurisdiction over this case. Accordingly, the first issue
raised in counsel’s Anders brief is frivolous.
The second issue raised in counsel’s Anders brief is whether Appellant
entered his plea knowingly and voluntarily. The trial court conducted a full
colloquy with Appellant at the guilty plea hearing. Appellant stated, under
oath, that he was pleading guilty of his own free will. N.T., 2/10/14, at 5.
He further stated that no one had threatened or coerced him into pleading
guilty. Id. Appellant stated that he was not promised anything for his guilty
plea. Id. He stated that he had reviewed the case with his attorney and
that he was satisfied with his attorney’s representation. Id. at 5-6.
Appellant stated that he reviewed the written guilty plea colloquy with his
attorney and understood its contents, including the rights he was giving up
by pleading guilty. Id. at 4. He stated he was not under the influence of
drugs or alcohol. Id. He stated that he did not suffer from any mental
illness. Id. at 4-5. The trial court apprised him of the maximum penalty he
could face. Id. at 3. Appellant thereafter pled guilty to aggravated assault.
Thus, it is obvious from the record that Appellant knowingly and intelligently
chose to plead guilty to aggravated assault. Therefore, the second issue
contained in counsel’s Anders brief is frivolous.
The third issue raised in counsel’s Anders brief is whether Appellant’s
plea counsel rendered ineffective assistance. A claim that plea counsel was
ineffective, however, may only be raised via a petition filed pursuant to the
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Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. See
Commonwealth v. Rigg, 84 A.3d 1080, 1087 (Pa. Super. 2014). Such a
claim may not be raised on direct appeal. See id. Accordingly, the third
issue raised in counsel’s Anders brief is frivolous for purposes of direct
appeal.3
The final issue raised in counsel’s Anders brief is whether Appellant’s
sentence was illegal. Appellant was convicted of aggravated assault, a first-
degree felony. The statutory maximum for aggravated assault is 20 years’
imprisonment. Commonwealth v. Hill, 66 A.3d 365, 371 (Pa. Super.
2013), citing 18 Pa.C.S.A. § 107(b)(2). Appellant was sentenced to three to
ten years’ imprisonment, well below the statutory maximum. Therefore, his
sentence was legal and the fourth issue contained in counsel’s Anders brief
is frivolous.
In sum, we conclude that all four issues raised in counsel’s Anders
brief are frivolous. Furthermore, after an independent review of the entire
record, we conclude that no other issue of arguable merit exists. Therefore,
we will grant counsel’s request to withdraw. Having determined that the
issues raised on appeal are frivolous, or may not be pursued on direct
appeal, we will affirm the judgment of sentence.
3
We express no view as to the alleged ineffectiveness of Appellant’s plea
counsel.
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Petition for Leave to withdraw as Counsel granted. Judgment of
sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/27/2015
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