Com. v. McMullen, E. ( 2015 )

J. S76002/14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ERIC McMULLEN, : No. 1025 WDA 2013
:
Appellant :
Appeal from the Judgment of Sentence, May 22, 2013,
in the Court of Common Pleas of Allegheny County
Criminal Division at Nos. CP-02-CR-0002118-2008,
CP-02-CR-0017000-2006, CP-02-CR-0018191-2006
BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OLSON, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 16, 2015
Eric McMullen appeals from the judgment of sentence of May 22, 2013.
We affirm.
In a prior memorandum, we described the history of this matter as
follows:
On March 2, 2010, appellant entered a
negotiated guilty plea to numerous counts at three
different informations, including robbery, aggravated
assault, criminal conspiracy, prohibited offensive
weapons, and firearms violations. A charge of
criminal attempt to commit homicide was withdrawn
in accordance with the plea agreement. Following a
thorough plea colloquy, the trial court imposed the
agreed upon sentence of 10 to 20 years’
imprisonment.[Footnote 1]
[Footnote 1] We note that appellant
faced a mandatory minimum of 10 years’
imprisonment as a second-strike
J. S76002/14
recidivist violent offender pursuant to
42 Pa.C.S.A. § 9714(a)(1). (Notes of
testimony, 3/2/10 at 33-34, 41-42.)
During the plea, appellant stated that he was
taking various prescription psychiatric medications.
(Notes of testimony, 3/2/10 at 15.) However,
appellant assured the court that he was lucid and
understood the consequences of pleading guilty.
(Id.) Appellant testified that his medication did not
affect his ability to understand the proceedings and
think clearly. (Id. at 24.)
On March 8, 2010, appellant filed a timely
post-sentence motion to withdraw his guilty plea,
asserting that he was unable to understand the
proceedings due to his mental health condition. That
same date, March 8, 2010, appellant’s post-sentence
motion was denied and court-appointed counsel was
granted permission to withdraw.[Footnote 2]
Subsequently, appellant filed a pro se motion to
withdraw guilty plea on March 22, 2010. According
to the criminal docket, this motion was denied on
March 31, 2010.[Footnote 3]
[Footnote 2] Komron Jon Maknoon, Esq.,
was appointed to represent appellant on
December 14, 2009, following the
withdrawal of Arnold I. Klein, Esq.
Attorney Maknoon entered his
appearance on December 23, 2009.
[Footnote 3] The docket indicates that
the March 31, 2010 order cannot be
located as of February 1, 2012.
No direct appeal was filed; however, on
May 21, 2010, appellant filed a pro se
PCRA[Footnote 4] petition. Counsel was appointed,
and filed an amended petition on appellant’s behalf
on January 25, 2011, alleging, inter alia, that
Attorney Maknoon was ineffective for failing to
protect appellant’s direct appeal rights. By order
filed March 2, 2011, appellant’s direct appeal rights
-2-
J. S76002/14
were reinstated nunc pro tunc, and appellant filed
notice of appeal the same day.
[Footnote 4] Post-Conviction Relief Act,
42 Pa.C.S.A. §§ 9541-9546.
Commonwealth v. McMullen, No. 422 WDA 2011, unpublished
memorandum at 1-3 (Pa.Super. filed July 17, 2012). Among appellant’s
issues on appeal was whether he was entitled to additional credit for time
served from January 7-8, 2008. Appellant was awarded credit time from
January 9, 2008; however, apparently he was arrested on January 7, 2008,
and remained incarcerated from that date until sentencing. Id. at 5. The
Commonwealth conceded that appellant was owed two additional days of
credit time towards his sentence. Id. at 6. Therefore, we vacated
appellant’s sentence and remanded with instructions to award two days’
additional credit time towards appellant’s sentence. Id. We affirmed in all
other respects. Id. at 1.
On December 27, 2012, our supreme court denied allowance of
appeal. Commonwealth v. McMullen, No. 335 WAL 2012 (per curiam).
On May 22, 2013, appellant appeared for re-sentencing. At that time,
appellant requested to withdraw his March 2, 2010 guilty plea. The trial
court denied the request and re-imposed the original negotiated sentence of
10 to 20 years’ incarceration, plus an additional two days of credit for time
served from January 7-8, 2008. (Notes of testimony, 5/22/13 at 20.) This
timely appeal followed. Appellant has complied with Pa.R.A.P.,
-3-
J. S76002/14
Rule 1925(b), 42 Pa.C.S.A., and the trial court has filed an opinion. Counsel
for appellant, Thomas N. Farrell, Esq., has filed a petition to withdraw and
accompanying Anders brief.1
Appellant has raised the following issues for this court’s review:
1. Did the trial court err in failing to grant the
motion to withdraw the guilty plea and applied
the wrong standard, when the request was
made before sentencing and the Appellant said
he was innocent?
2. Whether the trial court abused its discretion in
honoring the plea bargain and not sentencing
Appellant to a lesser sentence when he
testified against another person charged with
criminal homicide and was promised by the
police that this information would be brought
to the attention of the trial court and probably
getting time off his sentence?
Appellant’s brief at 5.
Counsel having filed a petition to withdraw, we reiterate that “[w]hen
presented with an Anders brief, this court may not review the merits of the
underlying issues without first passing on the request to withdraw.”
Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa.Super. 2010), citing
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007)
(en banc) (citation omitted).
In order for counsel to withdraw from an appeal
pursuant to Anders, certain requirements must be
met, and counsel must:
1
See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).
-4-
J. S76002/14
(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., quoting Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
Upon review, we find that Attorney Farrell has complied with all of the
above requirements. In addition, Attorney Farrell served appellant a copy of
the Anders brief, and advised him of his right to proceed pro se or hire a
private attorney to raise any additional points he deemed worthy of this
court’s review. Appellant has not responded to counsel’s motion to
withdraw. As we find the requirements of Anders and Santiago are met,
we will proceed to the issues on appeal.
In his first issue on appeal, appellant claims that the more liberal
pre-sentencing standard of “any fair and just reason” should apply to his
-5-
J. S76002/14
request to withdraw his guilty plea.2 We disagree. In Commonwealth v.
Muntz, 630 A.2d 51 (Pa.Super. 1993), we addressed this precise issue.
There, the appellant pled guilty to seven counts of robbery and two counts of
simple assault, and was sentenced to an aggregate of 8 to 16 years’
incarceration. Id. at 52. The appellant did not request allowance to
withdraw his plea before his original sentencing. Id. at 54. On appeal, this
court vacated the first sentence and remanded the matter to the trial court
for re-sentencing. Id. at 52.
At the hearing prior to re-sentencing, the appellant requested
permission to withdraw his guilty plea. Id. The trial court denied the
request and imposed a new sentence of 6 to 12 years followed by 4 years of
probation. Id. On appeal, as in the instant case, the appellant argued that
his request to withdraw his guilty plea should have been considered as a
pre-sentence motion for withdrawal. Id. at 53. This court disagreed,
stating,
here, appellant petitioned to withdraw his guilty plea
only after sentence had been imposed for the first
time. Even though appellant made his request
before his resentencing, this does not negate the fact
that appellant failed to request allowance to
withdraw his plea before his original sentencing.
Therefore, appellant’s request falls under the
scrutiny of post-sentencing standard of “manifest
2
As explained further infra, in our prior memorandum, this court remanded
for a correction of appellant’s sentence, not for appellant to revive his
previously denied motion to withdraw guilty plea. However, as this is an
Anders case, we will review the issue.
-6-
J. S76002/14
injustice” rather than the pre-sentencing standard of
“fair and just reason.”
Id. at 54 (footnote omitted).
Similarly, here, appellant did not request to withdraw his guilty plea
until after his original sentencing. Therefore, appellant must demonstrate
prejudice on the order of a manifest injustice.
“When considering a petition to withdraw a plea submitted to a trial
court after sentencing, it is well-established that a showing of prejudice on
the order of manifest injustice is required before withdrawal is properly
justified.” Commonwealth v. Byrne, 833 A.2d 729, 737 (Pa.Super. 2003),
quoting Commonwealth v. Johns, 812 A.2d 1260, 1261 (Pa.Super. 2002)
(emphasis in original).
The standard for withdrawal of a guilty plea after
imposition of sentence is much higher [than the
standard applicable to a presentence motion to
withdraw]; a showing of prejudice on the order of
manifest injustice is required before withdrawal is
properly justified. A plea rises to the level of
manifest injustice when it was entered into
involuntarily, unknowingly, or unintelligently.
Id., quoting Commonwealth v. Muhammad, 794 A.2d 378, 383
(Pa.Super. 2002) (citations and internal quotation marks omitted).
A showing of manifest injustice is required after
imposition of sentence since, at this stage of the
proceeding, permitting the liberal standard
enunciated in [the presentence setting] might
encourage the entrance of a plea as a ‘sentence
testing device.’ We note that disappointment by a
defendant in the sentence actually imposed does not
represent manifest injustice.
-7-
J. S76002/14
Id. (citations omitted).
Here, appellant falls well short of such a showing. As stated above,
the trial court conducted a thorough and probing plea colloquy on March 2,
2010, establishing that appellant was entering the plea knowingly,
intelligently, and voluntarily. Appellant’s assertions of actual innocence
directly contradict his statements during the plea colloquy. (See notes of
testimony, 3/2/10 at 24 (“Are you pleading guilty to these Informations and
to these charges because you’re in fact guilty? THE DEFENDANT: Yes.”).
See Commonwealth v. Stork, 737 A.2d 789, 790-791 (Pa.Super. 1999),
appeal denied, 764 A.2d 1068 (Pa. 2000) (“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.”),
citing Commonwealth v. Lewis, 708 A.2d 497 (Pa.Super. 1998). While
appellant may be disappointed with his sentence, this does not constitute a
“manifest injustice” permitting appellant to withdraw his plea. Byrne,
supra.In his second issue on appeal, appellant claims that the trial court
abused its discretion in re-imposing the agreed upon sentence of 10 to
20 years’ incarceration. Appellant argues that the trial court should have
taken into account his cooperation in an unrelated homicide case and
imposed a lesser sentence. According to appellant, the police promised him
-8-
J. S76002/14
time off his sentence in exchange for his truthful testimony in that case.
(Notes of testimony, 5/22/13 at 6-7.)
Before addressing the merits of this claim, we note that according to
counsel, it is superfluous to include a Rule 2119(f)3 statement in an Anders
brief because under Santiago, supra, counsel is required to explain why
the appeal is frivolous. (Appellant’s brief at 26-27.) Therefore, including a
Rule 2119(f) statement explaining why there is a substantial question as to
the appropriateness of the sentence imposed would work at cross-purposes
with counsel’s responsibilities under Santiago. (Id.) We acknowledge
counsel’s dilemma, however, it is established that even in the Anders
context, the Rule 2119(f) statement is required with respect to discretionary
sentencing challenges. Commonwealth v. Wilson, 578 A.2d 523, 525
(Pa.Super. 1990). Nevertheless, because this court has a duty to
independently review the record to determine whether, in fact, the appeal is
wholly frivolous, we will examine the merits of the issue. Id.;
3
Pa.R.A.P. 2119(f) states:
(f) Discretionary aspects of sentence. An
appellant who challenges the discretionary aspects
of a sentence in a criminal matter shall set forth in
his brief a concise statement of the reasons relied
upon for allowance of appeal with respect to the
discretionary aspects of a sentence. The statement
shall immediately precede the argument on the
merits with respect to the discretionary aspects of
sentence.
-9-
J. S76002/14
Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa.Super. 2009) (Anders
requires review of issues otherwise waived on appeal).
First, we observe that although we remanded for re-sentencing for the
award of an additional two days of credit time, we affirmed in all other
respects. McMullen, supra at 1. We characterized the purpose of remand
as “for modification of sentence.” Id. Reading the memorandum as a
whole, it seems clear that it was not our intention to remand for
re-sentencing to a new sentence but rather for a sentencing correction.4
Appellant’s negotiated sentence of 10 to 20 years, following a thorough and
complete guilty plea colloquy, stands. As such, this is not truly a
discretionary aspects of sentencing challenge.
Second, the crux of appellant’s argument, that the trial court, on
remand, should have considered his cooperation with authorities in an
unrelated homicide trial, misses the mark where his testimony in that case
occurred after his original sentencing. As the assistant district attorney
explained,
The most that I thought his testimony could ever do
to assist [appellant] was perhaps to assist him in
parole. That if the Parole Board knew that he had
cooperated in a homicide or reached out and testified
that maybe he could get paroled at his minimum, but
he had been sentenced already and I was under the
impression that was, you know, not something that
was going to change. Although I wasn’t party to the
conversations that [appellant] had with either
Detectives Leheny, Smith, or Evans.
4
In fact, this author also wrote the prior memorandum.
- 10 -
J. S76002/14
Notes of testimony, 5/22/13 at 11-12. The trial court did not abuse its
discretion in re-sentencing appellant to the bargained for sentence of 10 to
20 years, with the additional two days’ credit for time served as directed by
this court. There is no merit here.
For the reasons discussed above, we determine that appellant’s issues
on appeal are wholly frivolous and without merit. Furthermore, after our
own independent review of the record, we are unable to discern any
additional issues of arguable merit. Therefore, we will grant
Attorney Farrell’s petition to withdraw and affirm the judgment of sentence.
Petition to withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/16/2015
- 11 -
J. S76002/14
- 12 -