Com. v. Richardson, M. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
MARK KEITH RICHARDSON
Appellant No. 3763 EDA 2015
Appeal from the Judgment of Sentence November 16, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0005941-2015
BEFORE: PANELLA, J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, J. FILED JULY 25, 2016
Appellant, Mark Keith Richardson, appeals from the judgment of
sentence entered November 16, 2015, in the Court of Common Pleas of
Delaware County. Additionally, Appellant’s court-appointed counsel, Patrick
J. Connors, Esquire, has filed an application to withdraw as counsel pursuant
to Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009). We affirm the judgment of sentence
and grant counsel’s petition to withdraw.
On November 16, 2015, Appellant entered a negotiated guilty plea to
open lewdness and possession of drug paraphernalia.1 The trial court
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. § 5901 and 35 P.S. § 780-113(a)(32), respectively.
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sentenced Appellant, according to the terms of the negotiated plea
agreement, to time served to 12 months’ incarceration for open lewdness,
followed by 12 months’ probation for possession of drug paraphernalia.
Appellant did not file a post-sentence motion challenging his sentence. This
timely appeal followed.
As noted, Attorney Connors has requested to withdraw and has
submitted an Anders brief in support thereof contending the appeal is
frivolous. The Pennsylvania Supreme Court has articulated the procedure to
be followed when court-appointed counsel seeks to withdraw from
representing an appellant on direct appeal.
[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.
Santiago, 978 A.2d at 361. Once counsel has met his 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.” Id. at 355 n.5 (citation omitted).
Counsel has complied with the technical requirements of Anders as
articulated in Santiago. Additionally, counsel confirms that he sent a copy
of the Anders brief to Appellant, as well as a letter explaining that Appellant
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has the right to proceed pro se or the right to retain new counsel. Counsel
has appropriately appended a copy of the letter to the motion to withdraw.
See Commonwealth v. Daniels, 999 A.2d 5990, 594 (Pa. Super. 2010);
Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super. 2005). Appellant
has not filed a response to the petition.
We now proceed to examine the issue counsel sets forth in the Anders
brief: “Whether the [l]ower [c]ourt erred when it accepted the present plea
of guilt and imposed the negotiated sentence without inquiring into Mr.
Richardson’s background?” Anders Brief at 1.
Turning to the merits, we observe that “[t]he 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, 1028 (Pa. Super. 2010) (citation omitted). Furthermore,
Appellant may not challenge the discretionary aspects of the sentence,
where the terms of the sentence were made part of the negotiated plea. See
Commonwealth v. Baney, 860 A.2d 127, 131 (Pa. Super. 2004).
Here, the trial court imposed the recommended sentence that
Appellant negotiated with the Commonwealth.
When a negotiated plea includes sentencing terms (or, more
properly, the Commonwealth’s commitment to recommend a
certain sentence), the defendant’s knowing and voluntary
acceptance of those terms rightly extinguishes the ability to
challenge a sentence the defendant knew was a proper
consequence of his plea.
Commonwealth v. Eisenberg, 98 A.3d 1268, 1276 (Pa. 2014).
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Counsel is thus correct that Appellant’s challenge to the trial court's
imposition of the negotiated sentence is frivolous. After all, Appellant
received exactly what he expressly bargained for.
Our independent review of the record does not reveal any non-
frivolous arguments available to Appellant. We therefore affirm the judgment
of sentence and grant counsel's petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/25/2016
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