Com. v. Patrick, Q. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
QUINCY MICHAEL PATRICK :
:
Appellant : No. 1725 MDA 2017
Appeal from the Judgment of Sentence August 21, 2017
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0000765-2016
BEFORE: GANTMAN, P.J., OTT, J., and KUNSELMAN, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 15, 2018
Appellant, Quincy Michael Patrick, appeals from the judgment of
sentence entered in the Luzerne County Court of Common Pleas, following his
open guilty plea to possession with intent to deliver (“PWID”).1 We affirm.
The relevant facts and procedural history of this case are as follows.
After [a hearing] and a colloquy of [Appellant] to ascertain
the voluntariness of his plea, [the court] accepted his plea
to count one of the Information, PWID, on June 29, 2017.
A presentence investigation (“PSI”) was ordered to be
completed by the Luzerne County Adult Probation and
Parole Department prior to sentencing.
[Appellant] was sentenced following [a hearing] on August
21, 2017. At said hearing, upon review of the PSI and the
presentations of counsel, [the court] determined that a
standard range sentence was appropriate. [The court] then
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1 35 P.S. § 780-113(a)(30).
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sentenced [Appellant] to a minimum of nineteen (19)
[months’] to a maximum of forty (40) [months’]
incarceration to be served in a state correctional
institution.[2] [Appellant] was given credit for serving four
hundred and twenty-two (422) days of incarceration prior
to sentencing.
On August 29, 2017, [Appellant] filed Post Sentence Motions
which were denied by Order of Court on October 10, 2017.
[Appellant] filed a timely Notice of Appeal on November 6,
2017. Thereafter, on November 8, 2017, [the court]
ordered [Appellant] to file a Concise Statement of Errors
Complained of on Appeal pursuant to Pa.R.A.P. 1925(b) and
requested the Commonwealth respond thereto.
[Appellant’s] Concise Statement of [Errors] Complained of
on Appeal pursuant to Pa.R.A.P. 1925(b)[3] was filed and
received by the [c]ourt on November 21, 2017. In said
document, [Attorney Amanda Young] indicated that there
are no non-frivolous issues which can be raised on appeal
and further indicated her intent to file an Anders Brief with
[this Court].
(Trial Court Opinion, filed December 14, 2017, at 1-2) (internal citations and
footnotes omitted). On November 27, 2017, Attorney John Sobota entered
his appearance on behalf of Appellant and Attorney Young withdrew her
representation. On February 2, 2018, Attorney Robert Buttner replaced
Attorney Sobota as appellate counsel and filed an Anders brief and an
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2 With an offense gravity score (“OGS”) of six (6) and a prior record score
(“PRS”) of four (4), the standard minimum sentence range for Appellant’s
PWID conviction was fifteen (15) to twenty-one (21) months’ imprisonment.
204 Pa.Code § 303.16(a).
3 Counsel called this document a Rule 1925(b) statement, but the substance
of the document demonstrates counsel filed a statement of intent to file an
Anders brief pursuant to Pa.R.A.P. 1925(c)(4).
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application to withdraw as counsel in this Court. Appellant filed pro se a
supplemental brief in response to counsel’s Anders Brief.
As a preliminary matter, appellate counsel seeks to withdraw his
representation pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct.
1396, 18 L. Ed. 2d 493 (1967) and Commonwealth v. Santiago, 602 Pa. 159,
978 A.2d 349 (2009). Anders and Santiago require counsel to: 1) petition
the Court for leave to withdraw, certifying that after a thorough review of the
record, counsel has concluded the issues to be raised are wholly frivolous; 2)
file a brief referring to anything in the record that might arguably support the
appeal; and 3) furnish a copy of the brief to the appellant and advise him of
his right to obtain new counsel or file a pro se brief to raise any additional
points the appellant deems worthy of review. Santiago, supra at 173-79,
978 A.2d at 358-61. Substantial compliance with these requirements is
sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.
2007). “After establishing that the antecedent requirements have been met,
this Court must then make an independent evaluation of the record to
determine whether the appeal is, in fact, wholly frivolous.” Commonwealth
v. Palm, 903 A.2d 1244, 1246 (Pa.Super. 2006) (quoting Commonwealth
v. Townsend, 693 A.2d 980, 982 (Pa.Super. 1997)). See also
Commonwealth v. Dempster, 2018 Pa. Super. 121 (filed May 8, 2018) (en
banc).
In Santiago, supra, our Supreme Court addressed the briefing
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requirements, where court-appointed appellate counsel seeks to withdraw
representation:
Neither Anders nor McClendon[4] requires that counsel’s
brief provide an argument of any sort, let alone the type of
argument that counsel develops in a merits brief. To repeat,
what the brief must provide under Anders are references
to anything in the record that might arguably support the
appeal.
* * *
Under Anders, the right to counsel is vindicated by
counsel’s examination and assessment of the record and
counsel’s references to anything in the record that arguably
supports the appeal.
Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:
[I]n 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.
Id. at 178-79, 978 A.2d at 361.
Instantly, appellate counsel filed a petition for leave to withdraw. The
petition states counsel performed a conscientious review of the record and
concluded the appeal is wholly frivolous. Counsel also supplied Appellant with
a copy of the withdrawal petition, the brief, and a letter explaining Appellant’s
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4 Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).
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right to proceed pro se or with new privately-retained counsel to raise any
additional points Appellant deems worthy of this Court’s attention. In his
Anders brief, counsel provides a summary of the facts and procedural history
of the case. Counsel refers to facts in the record that might arguably support
the issues raised on appeal and offers citations to relevant law. The brief also
provides counsel’s reasons for concluding that the appeal is frivolous. Thus,
counsel has substantially complied with the requirements of Anders and
Santiago.
In addition to counsel’s Anders brief, Appellant has filed a pro se brief
with this Court. In general, when examining most non-Anders cases, this
Court will not review pro se briefs filed by appellants who have had the benefit
of appellate counsel. Commonwealth v. Nischan, 928 A.2d 349, 353
(Pa.Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).
However, Anders specifically contemplates that, after
counsel files the Anders brief, an appellant may file a pro se
brief. Indeed, …part of counsel’s duty under Anders is to
advise the appellant of the right to raise points in addition to
those in counsel’s Anders brief. Thus, when conducting an
Anders review, this Court will consider not only the brief
filed by counsel but also any pro se appellate brief.
If this Court receives a petition to withdraw and a brief, both
submitted in accord with Anders, and if we are satisfied that
counsel has complied with the three technical Anders
requirements, we will then undertake our own independent
examination of the issues raised in the Anders brief and in
any pro se brief to determine whether we agree with
counsel’s assessment that the appeal before us is frivolous.
If, after our review, we determine that the appeal is
frivolous, then we will grant counsel’s petition to withdraw
and we will affirm the judgment of sentence. However, if it
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appears that there are non-frivolous issues, we will deny the
petition to withdraw and remand the case with directions that
counsel file an advocate’s brief. An advocate’s brief must
contain fully developed arguments supporting the appellant’s
position. After the filing thereof, the Commonwealth will
have the opportunity to submit a responsive brief. Upon
receipt of the advocate’s brief and the Commonwealth’s
response, we will then decide the merits of the case.
Id. at 353-354 (citations omitted). Because Appellant has exercised his right
to file a pro se brief, we will review his issue as well.
Appellant raises the following issues for our review:
WHETHER THE IMPOSITION OF A 19-MONTH TO 40-MONTH
SENTENCE IN A STATE CORRECTIONAL INSTITUTION IS
HARSH AND EXCESSIVE WHEN APPELLANT TOOK
RESPONSIBILITY BY PLEADING GUILTY; THE OFFENSE
GRAVITY SCORE WAS INCORRECT; THE TRIAL COURT
FAILED TO CONSIDER THAT [APPELLANT] IS A FATHER;
AND APPELLANT ARGUED THAT THE DRUGS IN QUESTION
WERE NOT IN PLAIN VIEW[?]
(Anders Brief at 2).
[DID] THE TRIAL COURT [HAVE] ILL-WILL OR BIAS BY
DIMINISHING [APPELLANT’S] CHARACTER[,] FACTS OF THE
CIRCUMSTANCES[,] AND THE OFFENSE AT [SENTENCING,]
AND WAS THERE [AN ACTUAL] FACTUAL BASIS FOR THE
PLEA?
(Appellant’s Pro Se Supplemental Brief at 2, unpaginated).
In his first issue, Appellant argues the court imposed a manifestly
excessive sentence. Specifically, Appellant asserts the court used an OGS of
six (6), when the correct OGS should have been five (5). Appellant complains
the court failed to consider Appellant’s taking responsibility for his actions by
pleading guilty and Appellant’s desire to take care of his children as mitigating
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factors. As presented, Appellant challenges the discretionary aspects of his
sentence.5 See Commonwealth v. Williams, 151 A.3d 621 (Pa.Super.
2016) (stating claim that sentencing court used incorrect OGS challenges
discretionary aspects of sentencing); Commonwealth v. Lutes, 793 A.2d
949 (Pa.Super. 2002) (stating claim that sentence is manifestly excessive
challenges discretionary aspects of sentencing); Commonwealth v. Cruz-
Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa. 653, 676
A.2d 1195 (1996) (stating allegation court ignored mitigating factors
challenges discretionary aspects of sentencing).
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910
(Pa.Super. 2000). Prior to reaching the merits of a discretionary sentencing
issue:
[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
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5 “[W]hile a guilty plea which includes sentence negotiation ordinarily
precludes a defendant from contesting the validity of his...sentence other than
to argue that the sentence is illegal or that the sentencing court did not have
jurisdiction, open plea agreements are an exception in which a defendant will
not be precluded from appealing the discretionary aspects of the sentence.”
Commonwealth v. Tirado, 870 A.2d 362, 365 n.5 (Pa.Super. 2005)
(emphasis in original). “An ‘open’ plea agreement is one in which there is no
negotiated sentence.” Id. at 363 n.1. Here, Appellant’s guilty plea included
no negotiated sentence.
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from is not appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
When appealing the discretionary aspects of a sentence, an appellant
must invoke this Court’s jurisdiction by including in his brief a separate concise
statement demonstrating a substantial question as to the appropriateness of
the sentence under the Sentencing Code. Commonwealth v. Mouzon, 571
Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P. 2119(f). “The requirement that an
appellant separately set forth the reasons relied upon for allowance of appeal
furthers the purpose evident in the Sentencing Code as a whole of limiting any
challenges to the trial court’s evaluation of the multitude of factors impinging
on the sentencing decision to exceptional cases.” Commonwealth v.
Phillips, 946 A.2d 103, 112 (Pa.Super. 2008), cert. denied, 556 U.S. 1264,
129 S. Ct. 2450, 174 L. Ed. 2d 240 (2009) (quoting Commonwealth v.
Williams, 562 A.2d 1385, 1387 (Pa.Super. 1989) (en banc)) (emphasis in
original) (internal quotation marks omitted).
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830
A.2d 1013, 1018 (Pa.Super. 2003). 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
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process.” Sierra, supra at 912-13. An allegation that the sentencing court
failed to consider certain mitigating factors, absent more, does not raise a
substantial question for our review. Commonwealth v. Rhoades, 8 A.3d
912, 918-19 (Pa.Super. 2010), appeal denied, 611 Pa. 651, 25 A.3d 328
(2011), cert. denied, 565 U.S. 1263, 132 S. Ct. 1746, 182 L. Ed. 2d 536 (2012).
A claim that the sentencing court applied the incorrect OGS, however, does
raise a substantial question for our review. Commonwealth v. Lamonda,
52 A.3d 365, 371 (Pa.Super. 2012), appeal denied, 621 Pa. 677, 75 A.3d 1281
(2013).
Our standard of review concerning the discretionary aspects of
sentencing is as follows:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on
appeal absent a manifest abuse of discretion. In this
context, an abuse of discretion is not shown merely by an
error in judgment. Rather, the appellant must establish, by
reference to the record, 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.
Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa.Super. 2005), appeal
denied, 586 Pa. 723, 890 A.2d 1057 (2005).
Instantly, Appellant raised this issue in a post-sentence motion and filed
a timely notice of appeal. Appellant, however, did not set forth a separate
statement of reasons for review under Rule 2119(f) in his appellate brief,
which ordinarily waives a discretionary-aspects-of-sentencing issue, unless
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the Commonwealth fails to object to the omission. See Commonwealth v.
Saranchak, 544 Pa. 158, 675 A.2d 268 (1996) (stating court may overlook
appellant’s failure to provide Rule 2119(f) statement when appellee fails to
object, if substantial question is evident from appellant’s brief; boilerplate
assertions do not qualify as substantial questions regarding discretionary
aspects of sentencing). But see Commonwealth v. Lilley, 978 A.2d 995,
998 (Pa.Super. 2009) (noting Anders requires review of issues otherwise
waived on appeal to determine their merit in order to rule on counsel’s request
to withdraw).
Here, the Commonwealth declined to file an appellate brief and did not
object to the omission of the Rule 2119(f) statement in Appellant’s brief.
Therefore, we may overlook the omission if Appellant has raised a substantial
question in his brief. See Saranchak, supra. Moreover, counsel filed an
Anders brief, so we would review the issue in any event. Appellant’s assertion
that the sentencing court did not consider mitigating factors and imposed an
excessive sentence, however, does not raise a substantial question. See
Rhoades, supra. On the other hand, Appellant’s claim that the sentencing
court used the incorrect OGS does raise a substantial question for our review.
See Lamonda, supra.
A person is guilty of PWID if he intentionally manufactures or delivers a
controlled substance. 35 P.S. § 780-113(a)(30). The OGS for a PWID
conviction with less than one (1) gram of heroin is six (6). 204 Pa.Code §
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303.15. The standard minimum sentencing range for an offense with an OGS
of six (6) and a defendant with a PRS of four (4) is fifteen (15) to twenty-one
(21) months’ imprisonment. 204 Pa.Code § 303.16(a).
Here, Appellant pled guilty to PWID of 0.92 grams of heroin under 35
P.S. § 780-113(a)(30), which is less than one gram and carries a OGS of six
(6). The court correctly applied an OGS of six (6) when it sentenced Appellant.
See 204 Pa.Code § 303.15. Further, the court sentenced Appellant to
nineteen (19) to forty (40) months’ imprisonment, which is within the
standard sentencing range. See 204 Pa.Code § 303.16(a). Thus, the OGS
challenge to the discretionary aspects of the sentence fails.
In his pro se issue, Appellant avers he was not making excuses at
sentencing for why the drugs were in his apartment; he was stating the drugs
found in his home were not actually in plain view, when his parole officer
searched his residence. Appellant complains his parole officer removed the
drugs from containers and put them in plain view. Appellant contends he
would not have allowed his parole agent into his residence with drugs in plain
view, because that would be asking to go to jail. Appellant claims these
assertions call into question the factual basis for his guilty plea. Appellant is
upset that the factual basis for the guilty plea caused the court to apply an
unreasonable sentence. Appellant also complains the Commonwealth
assumed Appellant was just making up excuses, which led to ill will and bias
at sentencing. As a result of these errors, Appellant concludes his sentence
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is unreasonable and his guilty plea lacked an accurate factual basis. We
cannot agree.
“Where an appellant fails to challenge his guilty plea in the trial court,
he may not do so on appeal.” Commonwealth v. Tareila, 895 A.2d 1266,
1270 n.3 (Pa.Super. 2006). An appellant must either object at the sentence
colloquy or otherwise raise an issue related to the guilty plea at the sentencing
hearing or through a post-sentence motion in order to preserve it for appeal
purposes. Id. Here, Appellant did not challenge his guilty plea during his
guilty plea colloquy or at the sentencing hearing. Appellant also failed to
challenge the guilty plea in his counseled post-sentence motion. Therefore,
Appellant’s challenge to the factual basis of his guilty plea is waived for
purposes of appeal. See id.
Moreover, “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
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)). The Pennsylvania Rules of Criminal Procedure mandate that pleas be
taken in open court, and require the court to conduct an on-the-record
colloquy to ascertain whether a defendant is aware of his rights and the
consequences of his plea. Commonwealth v. Hodges, 789 A.2d 764
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(Pa.Super. 2002). Specifically, the record must affirmatively demonstrate a
defendant understood: (1) the nature of the charges to which he is pleading
guilty; (2) the factual basis for the plea; (3) his right to trial by jury; (4) the
presumption of innocence; (5) the permissible ranges of sentences and fines
possible; and (6) that the judge is not bound by the terms of the agreement
unless he accepts the agreement. Commonwealth v. Watson, 835 A.2d
786 (Pa.Super. 2003). This Court will evaluate the adequacy of the plea
colloquy and the voluntariness of the resulting plea by examining the totality
of the circumstances surrounding entry of that plea. Muhammad, supra.
“[B]efore accepting a plea of guilty, the trial court must satisfy itself that
there is a factual basis for the plea.” Commonwealth v. Fluharty, 632 A.2d
312, 315 (Pa.Super. 1993) (quoting Commonwealth v. Maddox, 450 Pa.
406, 409-10, 300 A.2d 503, 505 (1973)). The factual basis requirement,
however, does not mandate that the defendant must admit every element of
his crimes. Fluharty, supra.
In this respect, the United States Supreme Court has held:
[W]hile most pleas of guilty consist of both a waiver
of trial and an express admission of guilt, the latter
element is not a constitutional requisite to the
imposition of criminal penalty. An individual accused
of crime may voluntarily, knowingly, and
understandingly consent to the imposition of a prison
sentence even if he is unwilling or unable to admit his
participation in the acts constituting the crime.
Nor can we perceive any material difference between
a plea that refuses to admit commission of the
criminal act and a plea containing a protestation of
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innocence when, as in the instant case, a defendant
intelligently concludes that his interests require entry
of a guilty plea and the record before the judge
contains strong evidence of actual guilt.
North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160,
167, 27 L. Ed. 2d 162, 171 (1970). See Commonwealth v.
Cottrell, 433 Pa. 177, 179, 249 A.2d 294, 295 (1969)
(“[W]here there is significant evidence of guilt…and the
accused, after adequate consultation with his counsel,
decides to plead guilty, that plea is not rendered invalid
merely because the accused is unable or unwilling to detail
the occurrence in court.”).
It would appear, therefore, that a defendant may knowingly
and voluntarily enter a guilty plea as a matter of strategy or
expedience even though he…is unable or unwilling to admit
guilt.
Fluharty, supra at 315. Pennsylvania law presumes a defendant who
entered a guilty plea was aware of what he was doing and bears the burden
of proving otherwise. Commonwealth v. Pollard, 832 A.2d 517 (Pa.Super.
2003). A defendant who decides to plead guilty 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. at 523. “Our law does not require that a defendant be totally
pleased with the outcome of his decision to plead guilty, only that his decision
be voluntary, knowing and intelligent.” Id. at 524.
Here, the court conducted Appellant’s guilty plea hearing on June 29,
2016. The Commonwealth provided the factual basis for Appellant’s plea as
follows:
On February [9], 2016, the Office of State Parole was
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searching [Appellant’s] residence in Kingston. He was on
parole at that time. During that time the agent discovered
[Appellant] to be in possession of .92 grams of heroin under
the circumstances indicating an intent to deliver, including
having scales and packaging material and not having
paraphernalia commonly used to ingest heroin.
(N.T. Guilty Plea Hearing, 6/29/17, at 5). The record makes clear Appellant
understood the nature of the charges against him, the factual basis for the
plea, his right to trial by jury, the presumption of innocence, the permissible
ranges of sentences and fines possible, and the court was not bound by the
terms of the agreement unless the court accepted the agreement. See
Watson, supra. Following independent review of the record, we conclude
the appeal is otherwise wholly frivolous. See Dempster, supra; Palm,
supra. Accordingly, we affirm the judgment of sentence and grant counsel’s
petition to withdraw.
Judgment of sentence affirmed; counsel’s petition to withdraw is
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/15/2018
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