Com. v. Garner, R. ( 2014 )

J-S73005-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RASHAUN D. GARNER,
Appellant No. 222 MDA 2014
Appeal from the Judgment of Sentence June 25, 2008
In the Court of Common Pleas of Susquehanna County
Criminal Division at No(s): CP-58-CR-0000418-2006
BEFORE: BOWES, WECHT, and MUSMANNO, JJ.
MEMORANDUM BY BOWES, J.: FILED DECEMBER 04, 2014
Rashaun D. Garner appeals nunc pro tunc from the June 25, 2008
judgment of sentence of twenty to forty years imprisonment that was
imposed in accordance with Appellant’s negotiated guilty plea to third-
degree murder. Appellate counsel has filed a petition seeking to withdraw
his representation and a brief pursuant to Anders v. California, 386 U.S.
738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009),
which govern a withdrawal from representation on direct appeal. We grant
the petition to withdraw and affirm.
On November 24, 2006, Appellant, who was then a juvenile, was
charged with homicide, two counts of aggravated assault, and six counts of
terroristic threats in connection with the shooting death of Stephen Smith,
Jr. Appellant asked that this matter be decertified to the juvenile court and
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received funds for psychological testing and to hire an expert witness.
Decertification was denied. After executing a written guilty plea agreement
and undergoing an extensive oral colloquy, Appellant entered a negotiated
guilty plea on June 9, 2008, to third-degree murder in exchange for a
sentence of twenty to forty years imprisonment and withdrawal of the
remaining charges. N.T. Plea, 6/9/08, at 2.1
Appellant did not file a direct appeal, but he filed a timely PCRA
petition on June 12, 2009. Counsel was appointed and filed an amended
petition. The court conducted a PCRA hearing and denied relief. In a nunc
pro tunc appeal from the denial of PCRA relief, we rejected Appellant’s
claims that plea counsel rendered ineffective assistance by coercing him to
enter a plea arrangement and by failing to investigate a claim of self-
defense. Commonwealth v. Garner, 87 A.3d 889 (Pa.Super. 2013)
(unpublished memorandum). However, we noted the following. In his
counseled PCRA petition, Appellant averred that counsel failed to file a
requested direct appeal from the judgment of sentence. At the PCRA
hearing, Appellant likewise testified that he asked his plea counsel to file an
appeal but none was filed. We accordingly determined that Appellant was
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1
Appellant admitted that he shot the victim in the abdomen on SR 92 in
Lenox Township and left him on the roadway. He was thereafter sentenced
in accordance with the plea agreement.
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entitled to reinstatement of his direct appeal rights and remanded.
Appellant’s direct appeal rights were reinstated, and this appeal followed.
Before we address the questions raised on appeal, we first must
resolve appellate counsel’s request to withdraw. Commonwealth v.
Cartrette, 83 A.3d 1030 (Pa.Super. 2013) (en banc). There are procedural
and briefing requirements imposed upon an attorney who seeks to withdraw
on appeal. The procedural mandates are that counsel must
1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the brief to the defendant; and 3) advise the defendant that
he or she has the right to retain private counsel or raise
additional arguments that the defendant deems worthy of the
court's attention.
Id. at 1032. (citation omitted).
In this case, counsel has satisfied those directives. In a petition to
withdraw, counsel averred that he conscientiously reviewed Appellant's
entire record and that, following that review, the instant appeal is wholly
frivolous. Attached to the petition to withdraw is a copy of a letter that
counsel sent to Appellant. Counsel forwarded to Appellant a copy of the
Anders brief and petition to withdraw. Additionally, counsel informed
Appellant that he had the right to retain a different attorney or to proceed by
himself as a pro se litigant. Appellant filed an extension of time to file a
response to the petition to withdraw and to file a pro se brief. Those
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extensions were granted, but Appellant has filed no brief within the time
frame permitted by the orders granting extensions.
We now examine whether counsel’s brief comports with the Supreme
Court’s dictates in Santiago, supra, which provides that
in 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.
Cartrette, supra at 1032 (quoting Santiago, supra at 361).
Counsel’s brief is compliant with Santiago. It sets forth the factual
and procedural history of this case and establishes why Appellant’s issue
lacks merit. Applicable legal authority is provided. We now examine the
merits of the issue raised, and we then will independently review the record
in order to determine if counsel’s assessment about the frivolity of the
present appeal is correct. Cartrette, supra. The issue raised in the brief
is: “I. Did the lower court err by accepting the guilty plea entered by
appellant as voluntarily and knowingly given?” Appellant’s brief at 4.
We observe the following. “A defendant wishing to challenge the
voluntariness of a guilty plea on direct appeal must either object during the
plea colloquy or file a motion to withdraw the plea within ten days of
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sentencing. Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i). Failure to employ either
measure results in waiver.” Commonwealth v. Lincoln, 72 A.3d 606, 610-
11 (Pa.Super. 2013). Herein, our review of the record establishes that no
objection was raised at the colloquy and that no post-sentence motion was
filed. Furthermore, the trial court delineated that Appellant had the right to
file a post-sentence challenge to his plea. N.T. Sentencing, 6/25/08, at 27.
Appellant failed to do so. Hence, any objection to the validity of the plea
cannot be raised in this appeal. Id. Likewise, since Appellant entered a
negotiated guilty plea to a sentence that did not exceed the lawful
maximum, he can raise no challenge to the propriety of the sentence
imposed. Commonwealth v. Reichle, 589 A.2d 1140 (Pa.Super. 1991).
Hence, all issues are waived for purposes of direct appeal.
We do note that Appellant did not aver that he asked counsel to file a
post-sentence motion, and Appellant is not automatically entitled to
reinstatement of that privilege merely because he asked for a direct appeal.
Commonwealth v. Liston, 977 A.2d 1089, 1100 (Pa. 2009). While
Appellant may contend that he received ineffective assistance in that counsel
did not file such a motion, claims of ineffective assistance of counsel will not
be entertained on direct appeal and must be deferred to collateral review
absent certain circumstances that did not occur herein. Commonwealth v.
Holmes, 79 A.3d 562 (Pa. 2013); see generally Commonwealth v.
Grant, 813 A.2d 726, 738 (Pa. 2002).
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There are no issues that can be raised in this appeal because none was
preserved. Hence, our independent review confirms that this appeal is
wholly frivolous.
The petition of Brianna M. Strope, Esquire, to withdraw as counsel is
granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/4/2014
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