Com. v. Jordan, C. ( 2018 )

J-S08024-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHARLES JORDAN,
Appellant No. 990 WDA 2017
Appeal from the Judgment of Sentence entered April 13, 2017,
in the Court of Common Pleas of Erie County,
Criminal Division, at No(s): CP-25-CR-0003263-2016.
BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E,*
MEMORANDUM BY KUNSELMAN, J.: FILED MARCH 27, 2018
Charles Jordan appeals from the judgment of sentence imposed after
he pled guilty to possession with intent to deliver (cocaine), a firearm
violation, and receiving stolen property.1 Jordan’s counsel has filed a
petition to withdraw, in which she alleges that this direct appeal is wholly
frivolous. Agreeing with counsel’s assessment, we grant her petition to
withdraw and affirm Jordan’s judgment of sentence.
The Commonwealth originally charged Jordan with multiple drug,
firearm, and receiving stolen property charges following the execution of a
____________________________________________
135 P.S. § 780-113(a)(30), and 18 Pa.C.S.A. §§ 6105(a)(1), and 3925(a),
respectively.
*Former Justice specially assigned to the Superior Court.
J-S08024-18
search warrant at his residence. Prior to trial, he filed a motion to suppress,
which the trial court denied after an evidentiary hearing.
On February 27, 2017, Jordan entered a guilty plea to one count of
each charge as part of a negotiated guilty plea, in which the Commonwealth
agreed to withdraw the remaining charges. There was no agreement as to
the sentence to be imposed, although Jordan acknowledged he was facing
and aggregate maximum term of thirty years of imprisonment.
On April 13, 2017, the trial court imposed an aggregate sentence of
eight to sixteen years of imprisonment. Jordan filed a timely post-sentence
motion in which he raised challenges to his sentence. The trial court denied
Jordan’s post-sentence motion on May 5, 2017. Jordan filed a pro se notice
of appeal, and the trial court appointed counsel following this Court’s remand
for a Grazier hearing.2 Thereafter, Jordan’s counsel filed a Pa.R.A.P.
1925(b) statement in which she stated her intention to file an Anders3 brief
with this Court.
“When presented with an Anders brief, this Court 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). In Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), the
____________________________________________
2Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
3Anders v. California, 368 U.S. 738 (1967).
-2-
J-S08024-18
Pennsylvania Supreme Court explained what is required to be contained
within an Anders brief:
[T]he Anders brief that accompanies court-appointed
counsel’s petition to withdraw . . . 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.
“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 [Commonwealth v.
Millisock, 873 A.2d 748, 751 (Pa. Super. 2005)] that remain binding
precedent. Daniels, 999 A.2d at 594. Thus, counsel seeking to withdraw
on direct appeal must meet the following obligations to his or her client:
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, 880 (Pa. Super. 2014) (citation
omitted). Jordan has not filed a response.
-3-
J-S08024-18
Our review reveals that Jordan’s counsel substantially complied with
the requirements of Anders and Santiago. “Once counsel has satisfied the
above requirements, it is then this Court’s duty to conduct its own review of
the trial court’s proceedings and render an independent judgment as to
whether the appeal is, in fact, wholly frivolous.” Commonwealth v.
Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc) (citation
omitted). Stated differently, this Court must conduct an independent review
of the record to discern if there are any additional, non-frivolous issues
overlooked by counsel. Commonwealth v. Flowers, 113 A.3d 1246, 1250
(Pa. Super. 2015).
Counsel identified the following claims that Jordan indicated he wished
to raise on appeal:
1. Did [Jordan] enter a knowing, voluntary and intelligent
plea?
2. Did the trial court commit an abuse of discretion when it
imposed consecutive sentences for possession with
intent to deliver and persons not to possess firearms?
3. Did the trial court impose an illegal sentence?
4. Did the trial court err in denying [Jordan’s] motion to
suppress?
Jordan’s Brief at 8.
Jordan first asserts that his entry of the negotiated plea was not
knowing, voluntary and intelligent. As noted by counsel, Jordan failed to
challenge the validity of his plea before the trial court in open court or in a
post-sentence motion. See Pa.R.Crim.P. 720(B). Accordingly this issue is
-4-
J-S08024-18
waived for purposes of appellate review. Commonwealth v. Lincoln, 72
A.3d 606, 610 (Pa. Super. 2013). Absent waiver, we would find any such
challenge refuted by our review of Jordan’s written and oral plea colloquies.
Thus, we agree that this issue is meritless.
In his second issue, Jordan claims that the trial court abused its
discretion when it imposed consecutive sentences for possession with intent
to deliver and the firearms violation. This claim challenges the discretionary
aspects of sentence. There is no absolute right to an appeal when
challenging the discretionary aspects of a sentence. Appellant must satisfy a
four-part test to invoke this Court’s jurisdiction. See Commonwealth v.
Griffin, 65 A.3d 932, 935 (Pa. Super. 2013). An appeal is permitted only
after this Court determines that there is a substantial question that the
sentence was not appropriate under the Sentencing Code. Commonwealth
v. Tobin, 89 A.3d 663, 666 (Pa. Super. 2014) (citations omitted). Further,
in order to properly preserve such a claim for appellate review, the
defendant must present the issue in either a post-sentence motion or raise
the claim during the sentencing proceedings, and preserve the issue in a
Pa.R.A.P. 2119(f) statement. Id.“Sentencing is a matter vested in the sound discretion of the
sentencing court, and a sentence will not be disturbed on appeal absent a
manifest abuse of discretion, which in this context, is not shown merely to
be an error in judgment; rather the appellant must establish by reference to
the record, that the sentencing court ignored or misapplied the law,
-5-
J-S08024-18
exercised its judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.” Commonwealth v. Shull,
148 A.3d 820 (Pa. Super. 2016) (citation omitted).
Even if Jordan met all of the above requirements, his claim is refuted
by our review of the record. In his post-sentence motion, Jordan cited to
the court’s statement during the sentencing hearing, that the sentences it
imposed for these charges “are separate and distinct crimes, I have to make
them consecutive.” N.T., 4/13/17, at 12. Jordan then reminded the court
that it had the option of running the sentences concurrently or
consecutively. At argument on the post-sentence motion, the trial court
explained:
THE COURT: Okay. All right.
You know, your second point in here, when I said they
must be run consecutive, I didn’t mean that in a legal
sense that they were required, that was my feeling about
the - -
***
THE COURT: [T]hat’s just a question of semantics, that
was my opinion that they had to be run consecutively
because of the nature of the charges, the fact that they
were separate, distinct crimes, not because they had to be
run consecutive, you know. I know that much.
N.T., 5/5/17, at 5-6.
With these comments, the trial court clearly explained that, even
though it was aware of its sentencing options, the sentences were imposed
consecutively because it believed the separate crimes deserved separate
-6-
J-S08024-18
punishments. Moreover, although the trial court did impose these sentences
consecutively, it specifically told Jordan that each sentence it imposed fell
within the mitigated range of the Sentencing Guidelines. See N.T., 4/13/17,
at 12. Once again, we agree with appellate counsel that this issue is
meritless.
In his third issue, Jordan challenges the legality of his sentence. We
agree with appellate counsel’s determination that this issue is meritless
because, at the time of entering his plea, Jordan acknowledged that he was
facing a maximum aggregate sentence of thirty years. See N.T., 2/17/17 at
8. The aggregate maximum sixteen-year sentence he actually received fell
within the applicable statutory maximum for each charge.
Finally, in his fourth issue, Jordan claims that the trial court erred in
denying his suppression motion. We agree with appellate counsel that this
claim is meritless. “A plea of guilty constitutes a waiver of all non-
jurisdictional defects and defenses, and waives the right to challenge
anything but the legality of sentence and the validity of the plea.”
Commonwealth v. Dixon, 161 A.3d 949, 951 (Pa. Super. 2017) (citation
omitted).
In sum, we agree with counsel’s assessment that each issue Jordan
wished to raise is meritless. Furthermore, our independent review of the
record reveals no other non-frivolous bases for appeal. Flowers, supra.Thus, this appeal is “wholly frivolous.”
Petition to withdraw granted. Judgment of sentence affirmed.
-7-
J-S08024-18
Judge Lazarus joins the Memorandum.
P.J.E. Stevens concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/27/2018
-8-