Com. v. Lott, W. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
WILLIAM JOHN LOTT, :
:
Appellant : No. 148 EDA 2015
Appeal from the Judgment of Sentence entered on December 11, 2014
in the Court of Common Pleas of Delaware County,
Criminal Division, No. CP-23-CR-0005833-2014
BEFORE: BOWES, OTT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED JULY 07, 2015
William John Lott (“Lott”) appeals from the judgment of sentence
imposed following his guilty plea to recklessly endangering another person
and fleeing and eluding police.1 Additionally, Lott’s counsel, Patrick J.
Connors, Esquire (“Attorney Connors”), has filed a Petition to Withdraw as
counsel and an accompanying brief pursuant to Anders v. California, 386
U.S. 738, 744 (1967). We grant Attorney Connors’s Petition and affirm the
judgment of sentence.
The trial court set forth the relevant factual and procedural history as
follows:
[Lott] entered a negotiated guilty plea to recklessly
endangering another person and fleeing and eluding police on
December 14, 2014[,] and on the same day he was sentenced to
an aggregate [term] of six to twenty-three months of
1
See 18 Pa.C.S.A. § 2705; 75 Pa.C.S.A. § 3733(a).
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incarceration[,] to be followed by one year of probation. The
sentence imposed was in accordance with the terms of the
negotiated plea agreement. On January 7, 2015[, Lott] filed a
timely Notice of Appeal.
The Affidavit of Probable Cause that sets forth the factual
basis for [Lott’s] plea states that on September 5, 2014[, Lott]
drove through a steady red light at a speed that caused a
crossing guard to jump from the roadway to the sidewalk. After
witnessing the event[,] a patrol officer activated his overhead
lights and siren[] and attempted to apprehend [Lott]. [Lott]
fled. Eventually, he was intercepted by a second patrol officer[,]
who successfully stopped [Lott] in his vehicle. At the time of the
stop[, Lott] admitted that he fled because his license was
suspended.
[Lott] was ordered to file a [c]oncise [s]tatement of
[m]atters [c]omplained of on [a]ppeal on January 13, 2015. In
response to this Order[,] Attorney Connors has stated his intent
to file an Anders brief in the Superior Court.
Trial Court Opinion, 2/5/15, at 1-2 (citations omitted).
Lott’s counsel, Attorney Connors, has filed a brief pursuant to Anders
that raises the following issue on appeal: “Whether [] Lott entered a
knowing, voluntary and intelligent guilty plea?” Anders Brief at 1. Attorney
Connors also filed a Petition to Withdraw as counsel with this Court on April
24, 2015. Lott filed neither a pro se brief, nor retained alternate counsel for
this appeal.
Before addressing Lott’s issues on appeal, we must determine whether
Attorney Connors has complied with the dictates of Anders and its progeny
in petitioning to withdraw from representation. See Commonwealth v.
Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012). Pursuant to Anders,
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when counsel believes that an appeal is frivolous and wishes to withdraw
from representation, he or she must do the following:
(1) petition the court for leave to withdraw[,] stating that after
making a conscientious examination of the record and
interviewing the defendant, counsel has determined the appeal
would be frivolous, (2) file a brief referring to any issues in the
record of arguable merit, and (3) furnish a copy of the brief to
defendant and advise him of his right to retain new counsel or to
raise any additional points that he deems worthy of the court’s
attention. The determination of whether the appeal is frivolous
remains with the appellate court.
Id. Additionally, the Pennsylvania Supreme Court has explained 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 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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
Here, we conclude that Attorney Connors has substantially complied
with each of the requirements of Anders. See Commonwealth v.
Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007) (stating that counsel must
substantially comply with the requirements of Anders). Attorney Connors
indicates that he has made a conscientious examination of the record and
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determined that an appeal would be frivolous. Further, Attorney Connors’
Anders brief comports with the requirements set forth by the Supreme
Court of Pennsylvania in Santiago. Also, the record contains a copy of the
letter that Attorney Connors sent to Lott, advising him of his right to proceed
pro se or retain alternate counsel and file additional claims, and stating
Attorney Connors’ intention to seek permission to withdraw. Thus, Attorney
Connors has complied with the procedural requirements for withdrawing
from representation. We next examine the record and make an independent
determination of whether Lott’s appeal is, in fact, wholly frivolous.
Lott contends that he did not knowingly enter the guilty plea because
the oral guilty plea colloquy with the judge was not substantial. Anders
Brief at 3-4.
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). 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?
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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?
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.; 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). “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). Moreover, the oral colloquy may
be supplemented by a written colloquy that is read, completed, and signed
by the defendant and made a part of the plea proceedings.
Commonwealth v. Morrison, 878 A.2d 102, 108 (Pa. Super. 2005).
Here, the trial court orally conducted a plea colloquy and prior to Lott’s
entry of his guilty plea, Lott completed a written guilty plea colloquy. Based
on our independent review of the written and oral guilty plea colloquies, we
conclude that Lott’s claim is frivolous. Lott indicated that at the time of his
plea, he understood the English language, that he was not under the
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influence of alcohol or drugs, and that he did not suffer from any mental
illnesses. See N.T., 12/11/14, at 6-8; Written Plea Colloquy, 12/11/14, at 2
(unnumbered). Lott 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., 12/11/14, at 5-8; Written Plea Colloquy,
12/11/14, at 1-4 (unnumbered). Lott also acknowledged that by pleading
guilty, he understood that he was foregoing certain rights, including, inter
alia, the presumption of innocence, the right to file pre-trial motions and the
right to a jury trial. Written Plea Colloquy, 12/11/14, at 2-3 (unnumbered).
Based upon the foregoing, we conclude that Lott’s guilty plea was knowingly,
voluntarily and intelligently given. 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).
Further, our independent review discloses no other non-frivolous
issues that Lott could raise on appeal. Accordingly, we grant Attorney
Connors’ Petition to Withdraw, and affirm Lott’s judgment of sentence.
Petition to Withdraw granted; judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/7/2015
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