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Com. v. Lugowski, C. ( 2017 )


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  • J. S20029/17
    NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA           :     IN THE SUPERIOR COURT OF
    :           PENNSYLVANIA
    v.                 :
    :
    CHRISTOPHER JOHN LUGOWSKI,             :         No. 3549 EDA 2016
    :
    Appellant    :
    Appeal from the Judgment of Sentence, October 12, 2016,
    in the Court of Common Pleas of Delaware County
    Criminal Division at No. CP-23-CR-0007169-2015
    BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E.
    MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED MAY 16, 2017
    Christopher John Lugowski appeals from the October 12, 2016
    judgment of sentence after he pled guilty to conspiracy to commit murder
    and conspiracy to commit aggravated assault.1     The trial court sentenced
    him to an aggregate term of 10 to 20 years’ incarceration. Michael J. Harper
    (“Attorney Harper”), appellant’s counsel, has filed a petition to withdraw,
    alleging that the direct appeal is wholly frivolous, accompanied by an
    Anders brief.2      We grant counsel’s withdrawal petition and affirm the
    judgment of sentence.
    1
    18 Pa.C.S.A. § 903.
    2
    See Anders v. California, 
    386 U.S. 738
    (1967), and Commonwealth v.
    Santiago, 
    978 A.2d 349
    (Pa. 2009).
    J. S20029/17
    The trial court provided the following factual history set forth in the
    affidavit of probable cause and stipulated to by the parties:
    On October 16, 2016 [appellant], his
    co-defendant Wydell Bronson and a female
    companion were at the Waterford Inn in Upper
    Darby, PA. Four other individuals were also at the
    bar. One of these individuals advised the bartender
    that she had been in a physical altercation with
    [appellant] and Bronson previously. The bartender
    told [appellant] and his companions to leave the bar.
    They left at about 2:00 a.m. and returned at
    4:00 a.m. When two of the four individuals left the
    bar they were met by gunshots. They saw Bronson
    shooting from bushes that were near the bar . . . and
    ran back inside. Two of the four individuals were not
    harmed. One victim was shot in the abdomen as she
    stood inside the bar and another victim was shot in
    the left knee as he ran away from the bar and
    Bronson continued to fire.      [Appellant] gave a
    statement admitting his involvement in the shooting.
    [Appellant] filed a post sentence motion
    pro se. On November 14, 2016, the motion was
    denied and on the same day counsel filed a Notice of
    Appeal.    Trial counsel moved to withdraw her
    representation.    That motion was granted and
    appellate counsel was appointed. On December 6,
    2016 appellate counsel filed a “Statement of Matters
    Complained of on Appeal,” wherein he stated his
    intention to file an Anders brief in the Superior
    Court.
    Trial court opinion, 12/7/16 at 1-2.
    Appellant raises one issue for this court’s review:           “Whether
    [appellant] entered a knowing, voluntary and intelligent guilty plea?”
    (Appellant’s brief at 1.)
    -2-
    J. S20029/17
    On January 13, 2017, Attorney Harper filed in this court a petition to
    withdraw as counsel and an Anders brief, wherein Attorney Harper states
    that there are no non-frivolous issues preserved for our review on direct
    appeal.
    A request by appointed counsel to withdraw pursuant
    to Anders and Santiago gives rise to certain
    requirements and obligations, for both appointed
    counsel and this Court.        Commonwealth v.
    Flowers, 
    113 A.3d 1246
    , 1247-1248 (Pa.Super.
    2015).
    These requirements and the significant
    protection they provide to an Anders
    appellant arise because a criminal
    defendant has a constitutional right to a
    direct appeal and to counsel on that
    appeal.   Commonwealth v. Woods,
    
    939 A.2d 896
    , 898 (Pa.Super. 2007).
    This Court has summarized these
    requirements as follows:
    Direct appeal counsel seeking
    to withdraw under Anders
    must file a petition averring
    that, after a conscientious
    examination of the record,
    counsel finds the appeal to be
    wholly frivolous.       Counsel
    must also file an Anders brief
    setting forth issues that might
    arguably support the appeal
    along with any other issues
    necessary for the effective
    appellate          presentation
    thereof.
    Anders counsel must also
    provide a copy of the Anders
    petition and brief to the
    appellant,    advising   the
    -3-
    J. S20029/17
    appellant of the right to retain
    new counsel, proceed pro se
    or raise additional points
    worthy     of    the     Court’s
    attention.
    
    Woods, 939 A.2d at 898
      (citations
    omitted).
    There are also requirements as to the
    precise content of an Anders brief:
    The     Anders       brief    that
    accompanies court-appointed
    counsel’s petition to withdraw
    . . . 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
    .
    
    Id. at 1248.
    If this Court determines that appointed
    counsel has met these obligations, it is then our
    responsibility “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 1248.
    In so doing, we review not only the
    issues identified by appointed counsel in the Anders
    brief, but examine all of the proceedings to “make
    -4-
    J. S20029/17
    certain that appointed counsel has not overlooked
    the existence of potentially non-frivolous issues.”
    
    Id. Commonwealth v.
    Hankerson, 
    118 A.3d 415
    , 419-420 (Pa.Super. 2015).
    Our review of Attorney Harper’s application to withdraw, supporting
    documentation, and Anders brief reveals that he has complied with all of
    the foregoing requirements. We note that counsel also furnished a copy of
    the brief to appellant; advised him of his right to retain new counsel,
    proceed pro se, and/or raise any additional points that he deems worthy of
    this court’s attention; and attached to the Anders petition a copy of the
    letter sent to appellant as required under Commonwealth v. Millisock,
    
    873 A.2d 748
    , 751 (Pa.Super. 2005).        See Commonwealth v. Daniels,
    
    999 A.2d 590
    , 594 (Pa.Super. 2010) (“While the Supreme Court in
    Santiago set forth the new requirements for an Anders brief, which are
    quoted above, the holding did not abrogate the notice requirements set forth
    in Millisock that remain binding legal precedent.”). As Attorney Harper has
    complied with all of the requirements set forth above, we conclude that
    counsel has satisfied the procedural requirements of Anders.
    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.” 
    Santiago, 978 A.2d at 355
    n.5. Thus,
    we now turn to the merits of appellant’s appeal.
    -5-
    J. S20029/17
    Appellant asserts that he did not enter a knowing, voluntary, and
    intelligent guilty plea when he agreed to enter a negotiated plea of guilty.
    This court notes that appellant failed to raise the issue of the validity
    of his plea either before the trial court in open court or in a post-sentence
    motion. Appellant’s post-sentence motion did not address the issue of his
    plea.    See Pa.R.Crim.P. 720(B); Commonwealth v. D’Collanfield, 
    805 A.2d 1244
    (Pa.Super. 2002). Accordingly, this issue is waived for purposes
    of appeal. This court agrees with Attorney Harper that this issue concerning
    his plea is frivolous.3
    Additionally, our independent review of the entire record has not
    disclosed any potentially non-frivolous issues.        Consequently, we grant
    counsel’s petition to withdraw, and we affirm the judgment of sentence.
    Judgment of sentence affirmed. Petition to withdraw granted.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 5/16/2017
    3
    Even if appellant preserved this issue, this court would agree with
    Attorney Harper that the appeal was frivolous because appellant indicated
    through an oral and written plea colloquy that he made a knowing,
    voluntary, and intelligent guilty plea.
    -6-
    

Document Info

Docket Number: Com. v. Lugowski, C. No. 3549 EDA 2016

Filed Date: 5/16/2017

Precedential Status: Precedential

Modified Date: 5/16/2017