Com. v. Clay, S. ( 2019 )

J-S01035-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHARIEF CLAY :
:
Appellant : No. 1583 MDA 2018
Appeal from the Judgment of Sentence Entered June 28, 2018
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0000477-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHARIEF CLAY :
:
Appellant : No. 1584 MDA 2018
Appeal from the Judgment of Sentence Entered June 28, 2018
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0000660-2018
BEFORE: PANELLA,P.J., MURRAY, J., and PELLEGRINI*, J.
MEMORANDUM BY PELLEGRINI, J.: FILED FEBRUARY 05, 2019
Sharief Clay (Clay) appeals from the judgment of sentence entered after
his negotiated plea. Also before us is counsel’s petition to withdraw. We grant
counsel’s petition to withdraw and affirm Clay’s judgment of sentence.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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Clay pled guilty to two counts of delivering less than one gram of heroin,
one count of possession with intent to sell a controlled substance (heroin),
and possession of a firearm by a minor. In accordance with the plea
agreement, the trial court imposed an aggregate sentence of between three-
and-one-half years to seven years. Clay then filed a post-sentence motion in
which he sought modification of his sentence and argued in the alternative
that his plea was not knowing, intelligent or voluntary. Clay timely appealed
the denial of the motion.
His appellate counsel, William J. Miele, Esq., has petitioned to withdraw
from representation in this consolidated appeal and has submitted a brief
pursuant to Anders v. California, 386 U.S. 738 (1967) and Commonwealth
v. Santiago, 978 A.2d 349 (Pa. 2009). Before we address the merits, we
must first rule on counsel’s petition to withdraw. See Commonwealth v.
Daniels, 999 A.2d 590, 593 (Pa. Super. 2010) (“When presented with an
Anders brief, this Court may not review the merits of the underlying issues
without first passing on the request to withdraw.”).
I.
Anders requires court-appointed appellate counsel to “petition the court
for leave to withdraw and state that after making a conscientious examination
of the record, [s]he has determined that the appeal is frivolous.”
Commonwealth v. Martuscelli, 54 A.3d 940, 947 (Pa. Super. 2012)
(quoting Santiago, 978 A.2d at 361). Counsel must then file an Anders brief
which includes the following contents:
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(1) a summary of the procedural history and facts, with citations
to the record;
(2) reference to anything in the record that counsel believes
arguably supports the appeal;
(3) counsel's conclusion that the appeal is frivolous; and
(4) 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.
When an Anders brief is filed, counsel must furnish a copy to the client.
Commonwealth v. Orellana, 86 A.3d 877, 879–80 (Pa. Super. 2014).
Counsel must also attach a letter to the brief advising of the right to (1) retain
new counsel to pursue the appeal; (2) proceed pro se on appeal; or (3) raise
additional meritorious issues that the appellant deems worthy of the court’s
attention but which were not included in the Anders brief. Id.
In this case, counsel stated in the petition to withdraw that he reviewed
the file and the record, consulted with trial counsel, advised Clay of his
appellate rights, and notified Clay of the petition’s filing. As to the other
requirements for the Anders brief which have been enumerated above, we
find that counsel has substantially complied. Counsel summarized the
pertinent case facts and procedural history. Clay was furnished a copy of the
brief which outlines parts of the record which might arguably support the
appeal. Counsel explained in the brief why those grounds are wholly frivolous,
warranting counsel’s withdrawal.
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Once the reviewing court concludes that counsel has met the technical
obligations to withdraw, the court must “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. The issues raised
in the present Anders brief are rephrased as follows:
A. Whether the trial court ignored statutorily required
sentencing factors when imposing an aggregate term of between
three and one half years to seven years;
B. Whether the sentence was excessively harsh; and
C. Whether Clay knowingly, intelligently, and voluntarily
entered his negotiated plea in light of his age, mental health, and
inability to consult his family.
II.
The first two issues raised above go to whether the trial court’s sentence
was appropriate so they will be considered together.
Generally, a trial court has discretion in sentencing matters, and only a
manifest abuse of that discretion may warrant appellate relief.
Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006). An abuse
of discretion is not shown by an error in judgment. Id. To make out an abuse
of discretion, an appellant must identify record evidence showing that the
sentencing court ignored or misapplied the law, exercised its judgment for
reasons of partiality, prejudice, bias, or ill will, or arrived at a manifestly
unreasonable decision. Id.
“A challenge to the discretionary aspects of sentencing is not
automatically reviewable as a matter of right.” Commonwealth v. Grays,
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167 A.3d 793, 815 (Pa. Super. 2017). To assess whether this Court has
jurisdiction to reach the merits of a discretionary sentencing claim,
[w]e conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence, see
[Pa.R.Crim.P. 720]; (3) whether appellant’s brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
question that the sentence appealed from is not appropriate under
the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Grays, 167 A.3d at 815-16 (citation omitted).
In this case, because Clay timely filed a notice of appeal and arguably
preserved his present claims in a post-sentence motion, and Counsel’s
Anders brief comports with all procedural requirements, the only issue is
whether Clay has presented a substantial question of whether his sentence
was appropriate under the Sentencing Code.
Courts evaluate the existence of a substantial question on a case-by-
case basis. Commonwealth v. Battles, 169 A.3d 1086, 1090 (Pa. Super.
2017). “A substantial question exists only when the appellant advances a
colorable argument that the sentencing judge's actions were either: (1)
inconsistent with a specific provision of the Sentencing Code; or (2) contrary
to the fundamental norms which underlie the sentencing process.” Id.
(citation omitted). Merely claiming that a sentence is excessive or
unreasonable does not raise a substantial question. Commonwealth v.
Hornaman, 920 A.2d 1282, 1284 (Pa. Super. 2007).
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Moreover, “where the guilty plea agreement between the
Commonwealth and a defendant contains a negotiated sentence . . . and
where that negotiated sentence is accepted and imposed by the court, a
defendant is not allowed to challenge the discretionary aspects of the
sentence.” Commonwealth v. Byrne, 833 A.2d 729, 735 (Pa. Super 2003)
(citing Commonwealth v. Reichle, 589 A.2d 1140 (Pa. Super. 1991)).
Clay does not identify how his sentence runs afoul of the Sentencing
Code. He does not explain how the trial court’s acceptance of the negotiated
plea was contrary to the norms which underlie the sentencing process. Clay
negotiated a specific sentencing range with the Commonwealth and the trial
court sentenced him in line with that agreement. On these facts, there is no
substantial question as to whether the trial court acted within its discretion
when imposing sentence. See Byrne, 833 A.2d at 735; Reichle, 589 A.2d
at 1141.
III.
As to Clay’s final claim that his plea was involuntary, we conclude that
he is not entitled to relief. “It is well-settled that the decision whether to
permit a defendant to withdraw a guilty plea is within the sound discretion of
the trial court.” Commonwealth v. Hart, 174 A.3d 660, 664 (Pa. Super.
2017). “[A] defendant who attempts to withdraw a guilty plea after
sentencing must demonstrate prejudice on the order of manifest injustice
before withdrawal is justified.” Commonwealth v. Pantalion, 957 A.2d
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1267, 1271 (Pa. Super. 2008). “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)).
Pleas must be taken in open court and the trial judge must conduct an
on-the-record colloquy to confirm that a defendant is aware of his rights and
the consequences of his plea. The trial court must affirmatively demonstrate
that a defendant understands: (1) the nature of the guilty plea; (2) the factual
basis for the plea; (3) his right to trial by jury; (4) the presumption of
innocence; (5) the permissible range of sentences and possible fines; and (6)
that the judge is not bound by the terms of the agreement unless he accepts
them. Commonwealth v. Watson, 835 A.2d 786, 796-97 (Pa. Super.
2003).
The reviewing court will consider the totality of the circumstances when
evaluating the adequacy of the plea colloquy and the voluntariness of the
resulting plea. Muhammad, 794 A.2d at 383-84. A plea will be deemed valid
if the circumstances surrounding the plea show that the defendant fully
understood the nature and consequences of his plea such that he knowingly
and intelligently entered the plea. Commonwealth v. Rush, 909 A.2d 805
(Pa. Super. 2006). A defendant who pleads guilty carries the burden of
proving that he was unaware of what he was doing. Commonwealth v.
Pollard, 832 A.2d 517, 523 (Pa. Super. 2003). A defendant who pleads guilty
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is bound by the statements he makes while under oath, “and he may not later
assert grounds for withdrawing the plea which contradict the statements he
made at his plea colloquy.” Id.
In view of the totality of the circumstances in this case, including those
already discussed above, Clay cannot carry his burden of proving that he
involuntarily entered his plea. In the written plea colloquy, he communicated
his wish to enter a plea under the terms he had negotiated with the
Commonwealth. He took responsibility for the crimes he was pleading guilty
to and he stated that his plea was voluntary. He also indicated that he
understood the rights he would be foregoing, including the right to a trial by
jury, the Commonwealth’s burden of proof, and his right to an appeal.
Clay said that after thoroughly discussing the case with trial counsel, he
wanted to plead guilty because it was his best option. Although Clay briefly
noted that he suffered mental and emotional problems, this was the sole
evidence that he was less than fully competent to proceed. During the plea
colloquy, he denied being under any treatment for such issues and the trial
court inquired at length regarding his competence. The record in no way calls
into question the voluntariness of Clay’s plea.
To conclude, we agree with counsel’s assessment that this appeal is
wholly frivolous, and our independent review of the record shows that there
are no issues of arguable merit which would pose a substantial question or
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otherwise entitle Clay to relief. Counsel’s petition to withdraw is granted and
the judgment of sentence is affirmed.
Petition to withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/05/2019
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