Com. v. Bacon, T. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
TYRONE BACON
Appellant No. 1541 MDA 2015
Appeal from the Judgment of Sentence September 8, 2015
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0001007-2014
BEFORE: GANTMAN, P.J., BOWES, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED MAY 24, 2016
Appellant, Tyrone Bacon, appeals from the judgment of sentence
entered in the Lackawanna County Court of Common Pleas, following his
guilty plea to robbery and persons not to possess firearms.1 We affirm and
grant counsel’s petition to withdraw.
The relevant facts and procedural history of this case are as follows.
On April 14, 2014, Appellant approached the victim, grabbed his cellphone,
and fled. When police apprehended Appellant, they conducted a pat down
and discovered a small handgun on Appellant’s person. The Commonwealth
charged Appellant with, inter alia, robbery and persons not to possess
firearms.
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1
18 Pa.C.S.A. §§ 3701(a)(1)(v) and 6105(b), respectively.
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The remaining procedural history presents a convoluted scenario,
which we attempt to clarify. Appellant filed a pro se Pa.R.Crim.P. 600
motion to dismiss on April 13, 2015, which the court denied that same day,
as counsel represented Appellant.2 Thereafter, on April 24, 2015, counsel
filed a Rule 600 motion to dismiss and a supporting memorandum, to which
the Commonwealth responded. The court denied the counseled Rule 600
motion on June 10, 2015. Following the court’s decision, Appellant filed on
September 4, 2015, a pro se notice of interlocutory appeal. Appellant
subsequently pled guilty on September 8, 2015, to robbery and persons not
to possess firearms. That same day, the court sentenced Appellant to an
aggregate term of two to four years’ imprisonment, followed by ten years’
probation.3 On December 18, 2015, counsel filed a petition to withdraw and
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2
See generally Commonwealth v. Jette, 611 Pa. 166, 23 A.3d 1032
(2011) (reiterating rule that court will not consider pro se filings of
defendant who is represented by counsel of record).
3
As a general rule, this Court has jurisdiction only over final orders.
Commonwealth v. Rojas, 874 A.2d 638 (Pa.Super. 2005). “A direct
appeal in a criminal proceeding lies from the judgment of sentence.”
Commonwealth v. Patterson, 940 A.2d 493, 497 (Pa.Super. 2007),
appeal denied, 599 Pa. 691, 960 A.2d 838 (2008). Nevertheless, “[a] notice
of appeal filed after the announcement of a determination but before the
entry of an appealable order shall be treated as filed after such entry and on
the day thereof.” Pa.R.A.P. 905(a)(5). Instantly, the court denied
Appellant’s counseled Rule 600 motion on June 10, 2015. Appellant filed on
September 4, 2015, a pro se notice of interlocutory appeal that this Court
did not dismiss. Thereafter, Appellant pled guilty and was sentenced on
September 8, 2015. Imposition of the judgment of sentence served to
revive Appellant’s premature notice of appeal, which we will relate forward
(Footnote Continued Next Page)
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an Anders brief.
As a preliminary matter, appellate counsel seeks to withdraw her
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)). In Santiago, supra, our Supreme Court addressed the
briefing requirements where court-appointed appellate counsel seeks to
_______________________
(Footnote Continued)
to September 8, 2015, to resolve any jurisdictional impediments. See id.
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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, counsel filed a petition to withdraw. The petition states
Appellant’s appeal is meritless and that counsel notified Appellant of
counsel’s request to withdraw. Counsel also supplied Appellant with a letter
explaining Appellant’s right to retain new counsel or to proceed pro se to
raise any additional points that Appellant deems worthy of this Court’s
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4
Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).
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attention. (See Letter to Appellant, dated 12/18/15, attached to Application
to Withdraw as Counsel.) In the Anders brief, counsel provides a summary
of the facts and procedural history of the case. Counsel refers to relevant
law that might arguably support Appellant’s issue raised on appeal. Counsel
further states the reasons for her conclusion that the appeal is wholly
frivolous. Therefore, counsel has substantially complied with the
requirements of Anders and Santiago. As Appellant has filed neither a pro
se brief nor a brief with privately retained counsel, we review this appeal
based on the issue raised in the Anders brief:
WHETHER THE CASE SHOULD HAVE BEEN DISMISSED FOR
VIOLATION OF RULE 600?
(Anders Brief at 4).
In the Anders brief, counsel argues Appellant’s guilty plea precludes
him from challenging any issue other than the court’s jurisdiction, his
sentence, or the voluntariness of his plea. Counsel concludes Appellant
cannot raise a Rule 600 claim on appeal. We agree.
Rule 600 provides, in pertinent part:
Rule 600. Prompt Trial
(A) Commencement of Trial; Time for Trial
* * *
(2) Trial shall commence within the following time
periods.
(a) Trial in a court case in which a written complaint
is filed against the defendant shall commence within
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365 days from the date on which the complaint is filed.
Pa.R.Crim.P. 600(A)(2)(a). “Rule 600 generally requires the Commonwealth
to bring a defendant…to trial within 365 days of the date the complaint was
filed.” Commonwealth v. Hunt, 858 A.2d 1234, 1240 (Pa.Super. 2004)
(en banc), appeal denied, 583 Pa. 659, 875 A.2d 1073 (2005). To obtain
relief, a defendant must have a valid Rule 600 claim at the time he files his
motion for relief. Id. at 1243.
Significantly, “[a] plea of guilty effectively waives all nonjurisdictional
defects and defenses.” Commonwealth v. Gibson, 561 A.2d 1240, 1242
(Pa.Super. 1989), appeal denied, 525 Pa. 642, 581 A.2d 568 (1990). A
defendant who pleads guilty may not raise a Rule 600 challenge unless he
can show the Rule 600 violation affected the voluntariness of the plea itself.
Id. Here, Appellant challenges the court’s denial of his counseled Rule 600
motion. Nevertheless, Appellant does not claim his guilty plea was coerced
by the alleged deprivation of his speedy trial rights. Therefore, Appellant’s
Rule 600 claim is waived. See id. 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.
Judge Musmanno joins this memorandum.
Judge Bowes files a concurring statement.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/24/2016
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