Com. v. Bressi, A. ( 2017 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
AARON JAMES BRESSI, : No. 1791 MDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, September 29, 2016,
in the Court of Common Pleas of Northumberland County
Criminal Division at Nos. CP-49-CR-0000961-2015,
CP-49-CR-0000962-2015
BEFORE: GANTMAN, P.J., SHOGAN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 25, 2017
Aaron James Bressi appeals from the September 29, 2016 judgment of
sentence entered in the Court of Common Pleas of Northumberland County
after he pled nolo contendere to one count of simple assault and one count
of harassment.1 The trial court sentenced appellant to two consecutive
one-year terms of probation. Amy Stoak, Esq., of the Northumberland
County Public Defender’s Office has filed a petition to withdraw, alleging that
the appeal is frivolous, accompanied by an Anders brief.2 We will grant
counsel’s withdrawal petition and affirm the judgment of sentence.
1 18 Pa.C.S.A. §§2701(a)(3) and 2709(a)(4), respectively.
2See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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The trial court set forth the following procedural history:
On September 29, 2016, [appellant] was before the
court whereby [appellant] entered a plea of no
contest to the offense of Simple Assault on docket
CR-2015-961 and the offense of Harassment on
docket CR-2015-962. Immediately thereafter[,
appellant] was sentenced within the standard range
to [one year of] probation on CR-2015-961 and one
year [of] probation on CR-2015-962, to be served
consecutive to CR-2015-961. Seven days later,
[appellant] filed his Motion to Withdraw Plea in which
he asserted his plea was not entered knowingly,
intelligently and/or voluntarily. The motion was
denied without a hearing on October 12th, 2016, as
there were no allegations therein that could support
this contention.
Trial court statement in lieu of opinion, 1/19/17 at 1.
The record further reflects that appellant filed a timely notice of appeal
and timely complied with the trial court’s order to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial
court then filed a statement in lieu of a Rule 1925(a) opinion.
Appellant raises the following issues for our review:3
[1.] Whether the trial court erred in finding that
[a]ppellant’s pleas were knowing, voluntary,
and intelligently entered[?]
[2.] Whether the trial court erred in denying
[a]ppellant’s post-sentence motion to withdraw
his pleas[?]
Appellant’s brief at 6.
3 We note that the Commonwealth elected against filing an appellee’s brief in
this matter.
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On July 24, 2017, Attorney Stoak filed in this court a petition to
withdraw as counsel and an Anders brief, wherein Attorney Stoak states
that there are no non-frivolous issues preserved for our review.
A request by appointed counsel to withdraw pursuant
to Anders and Santiago gives rise to certain
requirements and obligations, for both appointed
counsel and this Court. Commonwealth v.
Flowers, 113 A.3d 1246, 1247-1248 (Pa.Super.
2015).
These requirements and the significant
protection they provide to an Anders
appellant arise because a criminal
defendant has a constitutional right to a
direct appeal and to counsel on that
appeal. Commonwealth v. Woods,
939 A.2d 896, 898 (Pa.Super. 2007).
This Court has summarized these
requirements as follows:
Direct appeal counsel seeking
to withdraw under Anders
must file a petition averring
that, after a conscientious
examination of the record,
counsel finds the appeal to
be wholly frivolous. Counsel
must also file an Anders
brief setting forth issues that
might arguably support the
appeal along with any other
issues necessary for the
effective appellate
presentation thereof.
Anders counsel must also
provide a copy of the Anders
petition and brief to the
appellant, advising the
appellant of the right to
retain new counsel, proceed
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pro se or raise additional
points worthy of the Court’s
attention.
Woods, 939 A.2d at 898 (citations
omitted).
There are also requirements as to the
precise content of an Anders brief:
The 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.
Id. at 1248. If this Court determines that appointed
counsel has met these obligations, it is then our
responsibility “to make a full examination of the
proceedings and make an independent judgment to
decide whether the appeal is in fact wholly frivolous.”
Id. at 1248. In so doing, we review not only the
issues identified by appointed counsel in the Anders
brief, but examine all of the proceedings to “make
certain that appointed counsel has not overlooked
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the existence of potentially non-frivolous issues.”
Id.
Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).
Our review of Attorney Stoak’s petition to withdraw, supporting
documentation, and Anders brief reveals that she has complied with all of
the foregoing requirements. We note that counsel also furnished a copy of
the brief to appellant, advised him of his right to retain new counsel, proceed
pro se, and/or raise any additional points that he deems worthy of this
court’s attention,4 and attached to her petition to withdraw a copy of the
letter she sent to appellant as required under Commonwealth v. Millisock,
873 A.2d 748, 751 (Pa.Super. 2005). See Commonwealth v. Daniels,
999 A.2d 590, 594 (Pa.Super. 2010) (“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 Attorney Stoak has
complied with all of the requirements set forth above, we conclude that
counsel has satisfied the procedural requirements of Anders.
4 We note that appellant filed a response to Attorney Stoak’s petition to
withdraw and Anders brief. In that response, appellant again challenges his
no-contest plea. He also states that Attorney Stoak “has 2015 were [sic] it
should say 2016 and many more non true [sic] facts and mistakes that need
to be disscussed [sic] in front of a Judge in the Superior Court[.]”
(Appellant’s pro se response to Anders brief and petition to withdraw,
8/4/17.)
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Once counsel has met her obligations, as Attorney Stoak has done
here, “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. Thus, we now turn to the merits of appellant’s appeal.
At the outset, we note that appellant pled nolo contendere, rather
than guilty to the charges at issue. “[I]n terms of its effect upon a case,
[however,] a plea of nolo contendere is treated the same as a guilty plea.”
Commonwealth v. V.G., 9 A.3d 222, 226 (Pa.Super. 2010) (citation
omitted). As such, we are mindful of the following:
[A]fter the court has imposed a sentence, a
defendant can withdraw his guilty plea only where
necessary to correct a manifest injustice.
[P]ost-sentence motions for withdrawal are subject
to higher scrutiny since courts strive to discourage
the entry of guilty pleas as sentencing-testing
devices. []
To be valid, a guilty plea must be knowingly,
voluntarily and intelligently entered. [A] manifest
injustice occurs when a plea is not tendered
knowingly, intelligently, voluntarily, and
understandingly. The Pennsylvania Rules of Criminal
Procedure mandate pleas be taken in open court and
require the court to conduct an on-the-record
colloquy to ascertain whether a defendant is aware
of his rights and the consequences of his plea.
Under Rule 590, the court should confirm, inter alia,
that a defendant understands: (1) the nature of the
charges to which he is pleading guilty; (2) the
factual basis for the plea; (3) he is giving up his right
to trial by jury; (4) and the presumption of
innocence; (5) he is aware of the permissible ranges
of sentences and fines possible; and (6) the court is
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not bound by the terms of the agreement unless the
court accepts the plea. The reviewing Court will
evaluate the adequacy of the plea colloquy and the
voluntariness of the resulting plea by examining the
totality of the circumstances surrounding the entry of
that plea. Pennsylvania law presumes a defendant
who entered a guilty plea was aware of what he was
doing, and the defendant bears the burden of
proving otherwise.
Commonwealth v. Prendes, 97 A.3d 337, 352 (Pa.Super. 2014) (internal
citations and quotations omitted), appeal denied, 105 A.3d 736 (Pa. 2014).
Additionally, “a defendant is bound by the statements which he makes
during his plea colloquy.” Commonwealth v. Barnes, 687 A.2d 1163,
1167 (Pa. 1997) (citations omitted). Therefore, a defendant “may not assert
grounds for withdrawing the plea that contradict statements made when he
pled guilty,” and he cannot recant the representations he made in court
when he entered his guilty plea. Id. (citation omitted). Moreover, the law
does not require that a defendant be pleased with the outcome of his
decision to plead guilty. The law only requires that a defendant’s decision to
plead guilty be made knowingly, voluntarily, and intelligently. See
Commonwealth v. Moser, 921 A.2d 526, 528-529 (Pa.Super. 2007).
Here, appellant claims that his pleas were not knowing, voluntary, or
intelligent and, as such, the trial court erred in denying his motion to
withdraw those pleas. The record, however, belies appellant’s claim. The
record reflects that appellant read, completed, and signed an extensive
written nolo contendere plea colloquy, which is part of the certified record.
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(Appellant’s guilty plea/nolo contendere plea, 9/30/16.5) On that form,
appellant affirmed, in writing, among other things, (i) that appellant’s
decision to plead no contest was appellant’s decision and his alone; (ii) that
his lawyer explained to him the elements of the offenses to which he pled no
contest; (iii) that he understood the facts and circumstances of the charges
against him; (iv) that he understood that he did not need to enter a plea,
but was able to plead not guilty and go to trial; (v) that he fully discussed
the plea colloquy with his lawyer and was satisfied with the advice and
representation that his lawyer gave him; (vi) that no one induced his plea by
promise, threat, or anything else; and (vii) that he read the entire written
colloquy, understood its full meaning, and still wanted to enter the plea.
(Id.)
The record further reflects that the sentencing court conducted an oral
colloquy wherein appellant acknowledged that he did not wish to go to trial,
but wanted to enter his plea. (Notes of testimony, 9/29/16 at 3.) During
that colloquy, appellant acknowledged his signature on the petition for entry
of nolo contendere plea, which also included the executed plea colloquy.
(Id. at 4.) Appellant affirmed that after he spoke with his lawyer, appellant
agreed that the Commonwealth had sufficient evidence to obtain convictions,
and that appellant, therefore, wished to enter the no-contest pleas. (Id.
5 Appellant’s written guilty plea/nolo contendere plea was docketed on
September 30, 2016.
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at 6.) He further acknowledged that he was satisfied with his attorney’s
representation, was aware of the penalties he faced, was not suffering from
a mental illness, and was not under the influence. (Id. at 6-8.) Appellant
also affirmed that he understood the rights that he was giving up by
pleading no contest, including the right to a jury trial and direct-appeal
rights had a jury found him guilty. (Id. at 7.)
After thoroughly reviewing the record with respect to appellant’s
challenge to his nolo contendere pleas, we conclude that the totality of the
circumstances surrounding appellant’s entry of those pleas discloses that
appellant fully understood the nature and consequences of his pleas and that
he entered those pleas knowingly, intelligently, and voluntarily.
Additionally, our independent review of the entire record has not
disclosed any potentially non-frivolous issues. Consequently, we grant
counsel’s petition to withdraw, and we affirm the judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/25/2017
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