Com. v. Fisher, R. ( 2016 )


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  • J-S61040-16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA              :       IN THE SUPERIOR COURT OF
    :             PENNSYLVANIA
    v.                            :
    :
    RYAN DAVID FISHER,                        :
    :
    Appellant               :            No. 348 WDA 2016
    Appeal from the Judgment of Sentence February 4, 2016
    in the Court of Common Pleas of Butler County,
    Criminal Division, No(s): CP-10-CR-0001490-2015
    BEFORE: PANELLA, LAZARUS and MUSMANNO, JJ.
    MEMORANDUM BY MUSMANNO, J.:                        FILED AUGUST 16, 2016
    Ryan David Fisher (“Fisher”) appeals from the judgment of sentence
    imposed following his guilty plea to organized retail theft. See 18 Pa.C.S.A.
    § 3929(3)(a).     Additionally, Jeffrey M. Thompson, Esquire (“Attorney
    Thompson”), Fisher’s counsel, has filed a Petition to Withdraw as Counsel
    and an accompanying brief pursuant to Anders v. California, 
    386 U.S. 738
    (1967).   We grant Attorney Thompson’s Petition to Withdraw and affirm
    Fisher’s judgment of sentence.
    In June 2015, Fisher was charged with corrupt organizations, criminal
    conspiracy, organized retail theft, access device fraud, retail theft, theft by
    deception, and receiving stolen property.1       Thereafter, pursuant to an
    agreement with the Commonwealth, Fisher waived his preliminary hearing in
    exchange for the immediate withdrawal of the corrupt organizations charge
    1
    18 Pa.C.S.A. §§ 911(b)(3); 903(a)(1); 3929(3)(a); 406(a)(2); 3939(a)(1);
    3922(a)(1); 3925(a).
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    and a reduction in the grading of the criminal conspiracy charge from felony
    1 to felony 3, with all other counts remaining as charged. On November 4,
    2015, Fisher entered into a plea agreement, in which he pled guilty to
    organized retail theft in exchange for a term of 90-180 days in prison, 30
    months of probation, and $12,661.14 in restitution, with no further penalty
    for the remaining charges. The trial court accepted the plea and sentenced
    Fisher in accordance with the terms of the plea agreement. On February 16,
    2016, Attorney Thompson filed a Motion to Withdraw as Counsel, which the
    trial court denied.
    Fisher filed a timely Notice of Appeal. Attorney Thompson subsequently filed
    a Pa.R.A.P. 1925(c)(4) Notice of Intent to file an Anders brief. On May 9,
    2016, Attorney Thompson filed a Petition to Withdraw as Counsel.       Fisher
    filed neither a pro se brief, nor retained alternate counsel.
    In his Anders brief, Attorney Thompson has raised the following
    questions for our review:
    I. Did the trial court have subject matter jurisdiction over
    the offenses charged?
    II. Was Fisher’s guilty plea knowingly, voluntarily, and
    intelligently made?
    III. Did the trial court impose an illegal sentence?
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    Anders Brief at 4.2
    We must first determine whether Attorney Thompson has complied
    with the dictates of Anders in petitioning to withdraw from representation.
    See Commonwealth v. Goodwin, 
    928 A.2d 287
    , 290 (Pa. Super. 2007)
    (stating that “[w]hen faced with a purported Anders brief, this Court may
    not review the merits of any possible underlying issues without first
    examining counsel’s request to withdraw.”). Pursuant to Anders, when an
    attorney believes that an appeal is frivolous and wishes to withdraw as
    counsel, he or she must
    (1) [p]etition the court for leave to withdraw stating that after
    making a conscientious examination of the record, counsel has
    determined the appeal would be frivolous; (2) file a brief
    referring to any issues that might arguably support the appeal,
    but which does not resemble a no-merit letter; and (3) furnish a
    copy of the brief to the defendant and advise him of his right to
    retain new counsel, proceed pro se, or raise any additional points
    he deems worthy of this Court’s attention.
    Commonwealth v. Burwell, 
    42 A.3d 1077
    , 1083 (Pa. Super. 2012)
    (citation omitted).
    Additionally, the Pennsylvania Supreme Court has determined that a
    proper Anders brief 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
    2
    “Upon entering a guilty plea, a defendant waives his right to challenge on
    appeal all non-jurisdictional defects except the legality of his sentence and
    the validity of his plea.” Commonwealth v. Passmore, 
    857 A.2d 697
    ,
    708-09 (Pa. Super. 2004).
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    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 the record,
    controlling case law, and/or statutes on point that have led to
    the conclusion that the appeal is frivolous.
    Commonwealth v. Santiago, 
    978 A.2d 349
    , 361 (Pa. 2009).
    Here, Attorney Thompson has complied with the requirements set
    forth in Anders by indicating that he has conscientiously examined the
    record and determined that an appeal would be frivolous. Further, Attorney
    Thompson provided a letter to Fisher, informing him of counsel’s intention to
    withdraw and advising Fisher of his rights to retain new counsel, proceed pro
    se, and file additional claims.   Finally, Attorney Thompson’s Anders brief
    meets the standards set forth in Santiago by providing a factual summary
    of Fisher’s case, with support for Attorney Thompson’s conclusion that
    Fisher’s plea was knowingly, voluntarily, and intelligently made, that the trial
    court did not impose an illegal sentence and had subject matter jurisdiction
    over Fisher’s offenses, rendering his appeal wholly frivolous.         Because
    Attorney Thompson has complied with the procedural requirements for
    withdrawing from representation, we will independently review the record to
    determine whether Fisher’s appeal is, in fact, wholly frivolous.
    In his first claim, Fisher contends that the trial court did not have
    subject matter jurisdiction over the offenses charged. Anders Brief at 12.
    Subject matter jurisdiction regards the competency of a court to hear
    and decide the type of issues presented. See Commonwealth v. Bethea,
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    828 A.2d 1066
    , 1074 (Pa. 2003).           All courts of common pleas have
    statewide subject matter jurisdiction in cases arising under the Crimes Code.
    See 
    id.
    Here, Fisher’s guilty plea to organized retail theft was filed in the Court
    of Common Pleas of Butler County. Thus, the trial court had subject matter
    jurisdiction over the charges filed against Fisher, and this claim is wholly
    frivolous. See 
    id.
    In his second claim, Fisher argues that his guilty plea was not
    knowingly, voluntarily, or intelligently made. Anders Brief at 14.
    Our law is clear that, to be valid, a guilty plea must be
    knowingly, voluntarily and intelligently entered. There is no
    absolute right to withdraw a guilty plea, and the decision as to
    whether to allow a defendant to do so is a matter within the
    sound discretion of the trial court. To withdraw a plea after
    sentencing, a defendant must make a showing of prejudice
    amounting to “manifest injustice.” A plea rises to the level of
    manifest injustice when it was entered into involuntarily,
    unknowingly, or unintelligently. A defendant’s disappointment in
    the sentence imposed does not constitute “manifest injustice.”
    Commonwealth v. Bedell, 
    954 A.2d 1209
    , 1212 (Pa. Super. 2008)
    (citation omitted). In order to ensure a voluntary, knowing, and intelligent
    plea, trial courts are required to ask the following questions in the guilty plea
    colloquy:
    1) Does the defendant understand the nature of the charges to
    which he or she is pleading guilty or nolo contendere?
    2) Is there a factual basis for the plea?
    3) Does the defendant understand that he or she has the right to
    a trial by jury?
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    4) Does the defendant understand that he or she is presumed
    innocent until found guilty?
    5) Is the defendant aware of the permissible ranges of sentences
    and/or fines for the offenses charged?
    6) Is the defendant aware that the judge is not bound by the
    terms of any plea agreement tendered unless the judge
    accepts such agreement?
    
    Id.
     (citation omitted); see also Pa.R.Crim.P. 590, cmt. “Once a defendant
    has entered a plea of guilty, it is presumed that he was aware of what he
    was doing, and the burden of proving involuntariness is upon him.”
    Commonwealth v. Stork, 
    737 A.2d 789
    , 790 (Pa. Super. 1999) (citation
    and brackets omitted). “In determining whether a guilty plea was entered
    knowingly and voluntarily, … a court is free to consider the totality of the
    circumstances surrounding the plea.”    Commonwealth v. Flanagan, 
    854 A.2d 489
    , 513 (Pa. 2004) (citation and quotation marks omitted).
    Fisher indicated that at the time of his plea, he understood the English
    language and he was not under the influence of alcohol or drugs. See N.T.,
    11/04/15, at 2; Written Plea Colloquy, 11/04/15, at 1. Fisher confirmed that
    he knew and understood the nature of the charges, the factual basis for the
    plea, the permissible range of sentences and fines, and that the judge was
    not bound by the terms of the plea agreement. See N.T., 11/04/15, at 3-4;
    Written Plea Colloquy, 11/04/15, at 2-4. Fisher also acknowledged that by
    pleading guilty, he was foregoing certain rights, including, inter alia, the
    presumption of innocence, the right to file pre-trial motions and the right to
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    a jury trial. See N.T., 11/04/15, at 4-5; Written Plea Colloquy, 11/04/15, at
    2-3.   Based upon the foregoing, we conclude that Fisher’s guilty plea was
    knowingly, voluntarily and intelligently made.     See Commonwealth v.
    Kelly, 
    5 A.3d 370
    , 382 n.11 (Pa. Super. 2010) (stating that “[a] defendant
    is bound by the statements he makes during his plea colloquy, and may not
    assert grounds for withdrawing the plea that contradict statements made
    when he pled.”) (citation omitted).
    Lastly, Fisher challenges the legality of his sentence. Anders Brief at
    15.
    Initially, “any claim, which asserts that a sentence exceeds the lawful
    maximum, implicates the legality of the sentence.” Commonwealth v.
    Foster, 
    17 A.3d 332
    , 336 (Pa. 2011).        A challenge to the legality of a
    sentence can be raised as a matter of right and is non-waivable.
    Commonwealth v. Munday, 
    78 A.3d 661
    , 664 (Pa. Super. 2013).
    Whether a sentence is illegal presents a question of law, and our standard of
    review is plenary. Commonwealth v. Orie, 
    88 A.3d 983
    , 1020 (Pa. Super.
    2014).
    Here, Fisher pled guilty to a felony 3 crime: organized retail theft. A
    felony of the third degree carries a maximum sentence of seven years in
    prison and a fine of $15,000. See 18 Pa.C.S.A. § 1103(3). The trial court
    sentenced Fisher to serve a term of 90 to 180 days in prison, which falls well
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    within the permissible range. Thus, the trial court did not impose an illegal
    sentence, and Fisher’s claim is without merit.
    Further, our independent examination of the record indicates that
    there are no other claims of arguable merit. See Anders, 
    386 U.S. at
    744-
    45. Accordingly, we conclude that Fisher’s appeal is wholly frivolous, and
    Attorney Thompson is entitled to withdraw as counsel.
    Petition to Withdraw as Counsel granted;       judgment of sentence
    affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 8/16/2016
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