Com. v. Gray, M. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
MATTHEW GRAY,
Appellant No. 2379 EDA 2015
Appeal from the Judgment of Sentence July 14, 2015
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0004644-2015
BEFORE: BOWES, J., MUNDY, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MAY 18, 2016
Appellant, Matthew Gray, appeals from the judgment of sentence
imposed following his negotiated guilty plea to aggravated assault. 1 Counsel
has filed an Anders2 brief, and requested permission to withdraw.3 We
affirm the judgment of sentence and grant counsel’s petition to withdraw.
On July 14, 2015, Appellant entered a counseled guilty plea to
aggravated assault and agreed to the following factual basis:
[O]n February 6, 2015[,] police arrived at 1909 East Oakdale
believing they were responding to a burglary in progress. It was
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. § 2702(a).
2
Anders v. California, 386 U.S. 738 (1967).
3
Appellant has not responded to the petition to withdraw.
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determined that it was instead a disturbance at that property.
[Appellant] was attempting to get into a property where he had
once lived and he appeared to be intoxicated or under the
influence of some substance.
[Appellant] was asked to leave the area by police and was
even offered a ride out of the area by police. [Appellant] refused
and poked Police Officer Brandish in the face with his finger. At
which point police got out of the patrol vehicle and told
[Appellant] he was under arrest.
[Appellant] then attacked the officer, grabbed him by the
neck and pushed him up against the patrol vehicle[. A] struggle
ensued and [Appellant] resisted arrest by disregarding verbal
commands and pulling his arms from police grasp.
Police were eventually able to subdue [Appellant] after
several moments of resistance. Upon securing him in the back
of the vehicle [while] police [] wait[ed] for a wagon, [Appellant]
then attacked Officer Brandish by kicking him in the chest and
causing him to fall to the ground. [Appellant] sprung out of the
vehicle with handcuffs on and continued to kick the officer
numerous times in the body and chest as he was on the ground.
The officer was able to [again secure Appellant] by
deploying his Tazer one time. [Appellant] was transported to
Episcopal Hospital for treatment of injuries [suffered] during this
altercation. Police Officer Bran[d]ish did sustain bleeding to his
neck, head and chin as well as scratches.
(N.T. Plea Hearing and Sentencing, 7/14/15, at 17-18).
Prior to recitation of the facts Appellant completed and signed a
written guilty plea colloquy. The court conducted an oral colloquy during
which it referenced the written colloquy. After Appellant admitted to the
factual basis, the court accepted his plea as knowing, intelligent and
voluntary. (See id. at 18-19). The trial court then accepted and imposed
the negotiated sentence of four years of probation and 160 hours of
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community service to be completed within six months.4 (See id. at 5, 7,
19). The sentence was below the standard range. (See id. at 4).
Appellant filed a timely notice of appeal on August 7, 2015. Pursuant
to the court’s order, he filed a concise statement of errors complained of on
appeal on September 9, 2015, and filed a supplemental statement, with
leave of court, on October 5, 2015. See Pa.R.A.P. 1925(b). The trial court
filed an opinion on October 8, 2015. See Pa.R.A.P. 1925(a).
Before reaching the merits of the issue raised in the Anders brief, we
address counsel’s petition to withdraw. See Commonwealth v. Rojas, 874
A.2d 638, 639 (Pa. Super. 2005) (quoting Commonwealth v. Smith, 700
A.2d 1301, 1303 (Pa. Super. 1997)) (“When faced with a purported Anders
brief, this Court may not review the merits of the underlying issues without
first passing on the request to withdraw.”).
To withdraw pursuant to Anders, counsel must: 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 or
her of the right to obtain new counsel or file a pro se brief to raise any
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4
In exchange for his guilty plea, the Commonwealth nolle prossed
Appellant’s charges for simple assault, 18 Pa.C.S.A. § 2701(a), recklessly
endangering another person, 18 Pa.C.S.A. § 2705, and resisting arrest, 18
Pa.C.S.A. § 5104.
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additional points that the appellant deems worthy of review. See
Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super. 2010).
Thereafter, this Court independently reviews the record and issues. See id.Here, on review, it appears that counsel has substantially complied
with Anders, supra, and Commonwealth v. Santiago, 978 A.2d 349, 361
(Pa. 2009) (holding counsel must state reasons for concluding that appeal is
frivolous). Counsel has also substantially complied with Commonwealth v.
Millisock, 873 A.2d 748, 752 (Pa. Super. 2005), by filing a copy of the
notice letter advising Appellant of his rights. Therefore, we will undertake
our own independent review of the appeal to determine if it is wholly
frivolous.
In the Anders brief, Appellant’s counsel presents two issues that
might arguably support an appeal:
1. Was the guilty plea in this matter made knowingly and
voluntarily?
2. Was the sentence of [four] years[’] probation imposed by the
lower court illegal or excessive?
(Anders Brief, at 3).
In his first issue, Appellant claims that his guilty plea was not knowing
or voluntary because the court did not address all of the elements that are
essential to a valid plea colloquy during its oral colloquy of Appellant. (See
id. at 10-11). We disagree.
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Preliminarily, we note that Appellant failed to object to his plea at the
colloquy or file a timely motion to withdraw his guilty plea, and accordingly
he has waived any challenge to the plea. See Commonwealth v. Lincoln,
72 A.3d 606, 609-10 (Pa. Super. 2013), appeal denied, 87 A.3d 319 (Pa.
2014) (“A defendant wishing to challenge the voluntariness of a guilty plea
on direct appeal must either object during the plea colloquy or file a motion
to withdraw the plea within ten days of sentencing. [See] Pa.R.Crim.P.
720(A)(1), (B)(1)(a)(i). Failure to employ either measure results in waiver.”)
(case citation omitted).
Moreover, even if not waived, Appellant has not demonstrated that he
entered into an unknowing or involuntary plea.
The law does not require that a defendant be pleased with
the outcome of his decision to enter a plea of guilty. All that is
required is that the defendant’s decision to plead guilty be
knowingly, voluntarily and intelligently made.
Pennsylvania has constructed its guilty plea
procedures in a way designed to guarantee assurance that
guilty pleas are voluntarily and understandingly tendered.
The entry of a guilty plea is a protracted and
comprehensive proceeding wherein the court is obliged to
make a specific determination after extensive colloquy on
the record that a plea is voluntarily and understandingly
tendered. A guilty plea colloquy must include inquiry as to
whether (1) the defendant understood the nature of the
charge to which he is pleading guilty; (2) there is a factual
basis for the plea; (3) the defendant understands that he
has the right to a jury trial; (4) the defendant understands
that he is presumed innocent until he is found guilty; (5)
the defendant is aware as to the permissible range of
sentences; and (6) the defendant is aware that the judge
is not bound by the terms of any plea agreement unless he
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accepts such agreement. Inquiry into these six areas is
mandatory in every guilty plea colloquy.
In order for a guilty plea to be constitutionally valid, the guilty
plea colloquy must affirmatively show that the defendant
understood what the plea connoted and its consequences. This
determination is to be made by examining the totality of the
circumstances surrounding the entry of the plea. Therefore,
[w]here the record clearly demonstrates that a guilty plea
colloquy was conducted, during which it became evident that the
defendant understood the nature of the charges against him, the
voluntariness of the plea is established.
Commonwealth v. Myers, 642 A.2d 1103, 1105 (Pa. Super. 1994)
(citations and quotation marks omitted).
Here, Appellant pleaded guilty after signing a detailed written guilty
plea colloquy, in which he acknowledged that he understood the nature of
the charges against him, the factual basis for his plea, his right to a jury
trial, his presumption of innocence, the permissible sentencing range, and
that the judge was not bound by the terms of the plea bargain. (See
Written Guilty Plea Colloquy, 7/14/15, at 1-3). Additionally, the trial court
conducted an oral colloquy at the plea hearing, during which Appellant
acknowledged that he understood the rights that he was waiving, the
presumption of innocence, the maximum sentence, and the elements of the
offense, and confirmed that he had understood and signed the written
colloquy. (See N.T. Hearing, 7/14/15, at 4, 16).
The record demonstrates that the trial court complied with
Pennsylvania’s guilty plea procedures in its colloquy and Appellant
understood the natures of the charges against him. See Myers, supra at
1105. Accordingly, the record supports that Appellant’s plea was voluntary
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and knowing. See id. Appellant’s first issue is wholly frivolous and would
not merit relief.
Appellant’s second issue challenges the discretionary aspects of his
sentence. (See Anders Brief, at 12-13). It is well-established that where
an appellant challenges the discretionary aspects of a sentence there is no
automatic right to appeal, and an appellant’s appeal should be considered to
be a petition for allowance of appeal. See Commonwealth v. W.H.M., 932
A.2d 155, 163 (Pa. Super. 2007).
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
[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).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (case
citation omitted).
“The determination of whether a substantial question exists must be
determined on a case-by-case basis.” Commonwealth v. Hartman, 908
A.2d 316, 320 (Pa. Super. 2006) (citation omitted). This Court has
explained that: “[a] substantial question exists where an appellant advances
a colorable argument that the sentencing judge’s actions [were] either: (1)
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inconsistent with a specific provision of the Sentencing Code; or (2) contrary
to the fundamental norms which underlie the sentencing process.” Id.(citation omitted).
Here, Appellant has met the first prong of this test by timely filing a
notice of appeal. However, he has failed to preserve his discretionary
aspects of sentencing issue at sentencing or in a timely-filed motion to
reconsider sentence pursuant to Pa.R.Crim.P. 720 and has failed to include a
statement of reasons relied on for appeal in the Anders brief or in response
to the petition to withdraw. See Moury, supra at 170. Appellant’s claim is
waived. Moreover, “where the guilty plea agreement between the
Commonwealth and a defendant contains a negotiated sentence, as is the
case herein, 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) (citations omitted). Accordingly, Appellant’s second issue is
waived.
We agree with counsel that Appellant’s claims are wholly frivolous. On
independent review, we find no other non-frivolous issues that would merit
relief for Appellant.
Judgment of sentence affirmed. Petition to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/18/2016
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