Com. v. Lopez, E. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ERIC JAMES LOPEZ
Appellant No. 591 WDA 2014
Appeal from the Judgment of Sentence March 11, 2014
In the Court of Common Pleas of Potter County
Criminal Division at No(s): CP-53-CR-0000011-2013
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED DECEMBER 22, 2014
Appellant, Eric James Lopez, appeals the judgment of sentence
entered in the Potter County Court of Common Pleas, following his
negotiated guilty plea to one count of simple assault and one count of
recklessly endangering another person (“REAP”).1 We affirm and grant
counsel’s petition to withdraw.
The relevant facts and procedural history of this case are as follows.
Appellant entered into a plea agreement on March 6, 2014, on charges
arising from an incident on December 9, 2012, in which Appellant pushed
the victim to the ground and struck her repeatedly in the face. The victim
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1
18 Pa.C.S.A. §§ 2701(a), 2705.
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*Retired Senior Judge assigned to the Superior Court.
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suffered a broken nose, broken jaw, broken cheekbone, and numerous
lacerations and abrasions. The trial court, however, later determined that
the sentence the Commonwealth had recommended actually exceeded the
statutory maximum sentence. Subsequently, the court allowed Appellant to
revoke the earlier plea and enter a new negotiated and binding plea
agreement. Appellant entered the new plea on March 11, 2014, to one
count of simple assault and one count of REAP. The new plea agreement
specifically provided that Appellant would not receive credit for time served.
Counsel explained the provisions of the plea agreement to Appellant, and the
court reiterated them when Appellant entered his new plea. At the plea
hearing, Appellant stated on the record that he understood the plea
agreement and wished to proceed with it. The court imposed the agreed-
upon sentence immediately following the plea proceedings.2
Appellant timely filed notice of appeal on April 7, 2014. On April 10,
2014, the court ordered Appellant to file a Rule 1925(b) statement. On April
16, 2014, the court ordered Appellant to file a corrective Rule 1925(b)
statement. On April 22, 2014, Appellant’s counsel filed a Rule 1925(c)(4)
statement of his intent to file an Anders brief.
As a preliminary matter, appellate counsel seeks to withdraw his
representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.
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2
Counsel filed a petition with the trial court to withdraw as counsel on April
1, 2014, which the court denied on April 9, 2014.
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1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Santiago, 602 Pa.
159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: 1)
petition the Court for leave to withdraw, certifying that after a thorough
review of the record, counsel has concluded the issues to be raised are
wholly frivolous; 2) file a brief referring to anything in the record that might
arguably support the appeal; and 3) furnish a copy of the brief to the
appellant and advise him of his right to obtain new counsel or file a pro se
brief to raise any additional points the appellant deems worthy of review.
Santiago, supra at 173-79, 978 A.2d at 358-61. Substantial compliance
with these requirements is sufficient. Commonwealth v. Wrecks, 934
A.2d 1287, 1290 (Pa.Super. 2007). “After establishing that the antecedent
requirements have been met, this Court must then make an independent
evaluation of the record to determine whether the appeal is, in fact, wholly
frivolous.” Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super.
2006) (quoting Commonwealth v. Townsend, 693 A.2d 980, 982
(Pa.Super. 1997)).
In Santiago, supra, our Supreme Court addressed the briefing
requirements where court-appointed appellate counsel seeks to withdraw
representation:
Neither Anders nor McClendon[3] requires that counsel’s
brief provide an argument of any sort, let alone the type of
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3
Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).
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argument that counsel develops in a merits brief. To
repeat, what the brief must provide under Anders are
references to anything in the record that might arguably
support the appeal.
* * *
Under Anders, the right to counsel is vindicated by
counsel’s examination and assessment of the record and
counsel’s references to anything in the record that
arguably supports the appeal.
Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:
[I]n the Anders brief that accompanies court-appointed
counsel’s petition to withdraw, 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
record, controlling case law, and/or statutes on point that
have led to the conclusion that the appeal is frivolous.
Id. at 178-79, 978 A.2d at 361.
Instantly, counsel filed a petition for leave to withdraw representation.
The petition states counsel reviewed the record and determined the appeal is
wholly frivolous. Counsel indicates he notified Appellant of the withdrawal
request. Counsel also supplied Appellant with a copy of the brief and a letter
explaining Appellant’s right to proceed pro se or with new privately retained
counsel to raise any additional points or arguments that Appellant believes
have merit. In his Anders brief, counsel provides a short summary of the
facts and procedural history of the case with reference to the record.
Counsel also refers to evidence in the record that may arguably support the
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appeal, and he provides citations to sentencing law. Counsel also states the
reasons for his conclusion that the appeal is wholly frivolous. Thus, counsel
has complied with the requirements of Anders and Santiago.
As Appellant has filed neither a pro se brief nor a counseled brief with
new privately retained counsel, we review this appeal on the basis of the
issues raised in the Anders brief:
WHETHER AN APPLICATION TO WITHDRAW AS COUNSEL
SHOULD BE GRANTED WHERE COUNSEL HAS
INVESTIGATED THE POSSIBLE GROUNDS OF APPEAL AND
FINDS THE APPEAL FRIVOLOUS?
WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY
IMPOSING [A] SENTENCE THAT DID NOT GIVE CREDIT
FOR TIME SERVED?
(Anders Brief at 4).
Appellant argues his sentence should be reduced with proper credit for
time served. Appellant claims he is entitled to nearly fifteen months of
credit for time he spent incarcerated on the offenses. Appellant concludes
the trial court erred in failing to give Appellant the credit he claims he
deserves. We disagree.
As a general rule, the entry of a guilty plea constitutes a waiver of all
defects and defenses except lack of jurisdiction, invalidity of the plea, and
illegality of the sentence. Commonwealth v. Main, 6 A.3d 1026(Pa.Super. 2010). “We have recognized the importance of the plea
bargaining process as a significant part of the criminal justice system.”
Commonwealth v. Byrne, 833 A.2d 729, 735 (Pa.Super. 2003). “We are
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aware of no authority that provides an impediment to a defendant’s express,
knowing, and voluntary waiver of a statutory right if that waiver is key in
obtaining a bargained-for exchange from the Commonwealth.” Id. at 736.
Case law supports the conclusion that a defendant can waive his right to
credit for time served as part of a negotiated plea bargain. Id.In the instant case, Appellant entered a negotiated and binding guilty
plea. The record makes clear Appellant understood the terms of the plea
agreement, which included no credit for time served. Appellant made no
claim that his plea was unknowing, involuntary, or unintelligent. Because
the sentence imposed was lawful, we see no reason to disturb it.
Accordingly, we affirm and grant counsel’s petition to withdraw.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2014
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