Com. v. Bowman, R. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
RAYMOND NAVARO BOWMAN,
Appellant No. 577 MDA 2014
Appeal from the Judgment of Sentence Entered March 3, 2014
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0004042-2011
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 22, 2014
Appellant, Raymond Navaro Bowman, appeals from the judgment of
sentence of an aggregate term of five to ten years’ incarceration, imposed
after he pled guilty to possession with intent to deliver, possession of drug
paraphernalia, and two counts of person not to possess a firearm. Appellant
essentially seeks to argue on appeal that his plea counsel provided him with
incorrect information and deceived him into pleading guilty. Additionally,
Appellant’s current counsel, Christopher P. Lyden, Esq., seeks permission to
withdraw his representation of Appellant pursuant to Anders v. California,
386 U.S. 738 (1967), as elucidated by our Supreme Court in
Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), and amended
in Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After careful
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review, we affirm Appellant’s judgment of sentence and grant counsel’s
petition to withdraw.
Appellant entered a negotiated guilty plea to the above stated offenses
on March 3, 2014.1 He was sentenced in accordance with his plea
agreement to an aggregate term of five to ten years’ incarceration.
Appellant did not file a post-sentence motion. On March 6, 2014, Appellant
filed a pro se “Motion to Appeal Guilty Plea.” Therein, he stated that he
wished to appeal because (1) his plea counsel “deceived him” during the
plea process, (2) counsel failed to help “him form a more solid decision”
regarding whether to plead guilty, (3) Appellant “was not given information
that could have [aided] him if in fact he chose to go forward with a trial[,]”
(4) Appellant was not provided with “sound counsel,” and (5) his plea
counsel “played on [Appellant’s] ignorance [in] the law and misinformed him
about search warrants and how they are to be applied and carried out.”
Motion to Appeal, 3/6/14, at 1-2 (unnumbered). Attorney Lyden was
thereafter appointed to represent Appellant and he filed a timely notice of
appeal on March 26, 2014.2 However, Attorney Lyden subsequently filed a
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1
At the same time, Appellant pled guilty to possession with intent to deliver
and possession of drug paraphernalia in an unrelated case, docketed at 4437
of 2012. He was sentenced in that case to an aggregate term of
incarceration of two to four years, which was imposed to run concurrently
with the sentence imposed in the instant case, docketed at 4042 of 2011.
2
Attorney Lyden only filed a notice of appeal in the case docketed at 4042 of
2011, not in the case docketed at 4437 of 2012.
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petition to withdraw and Anders brief with this Court, claiming that an
appeal on Appellant’s behalf is utterly frivolous.
“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.” Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super.
2005) (quoting Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa.
Super. 1997)). In Santiago, our Supreme Court altered the requirements
for counsel to withdraw under Anders. Thus, pursuant to
Anders/Santiago, in order to withdraw from an appeal, counsel now 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.
Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super. 2010) (citing
Santiago, 978 A.2d at 361). “Counsel also must provide a copy of the
Anders brief to his client.” Commonwealth v. Orellana, 86 A.3d 877, 880
(Pa. Super. 2014).
Attending the brief must be a letter that advises the client of his
right to: “(1) retain new counsel to pursue the appeal; (2)
proceed pro se on appeal; or (3) raise any points that the
appellant deems worthy of the court[']s attention in addition to
the points raised by counsel in the Anders brief.”
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Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super.
2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).
Orellana, 86 A.3d at 880. Once we are satisfied that counsel has met these
technical requirements, this Court must then conduct its own review of the
record and independently determine whether the appeal is, in fact, wholly
frivolous. See Daniels, 999 A.2d at 594.
Instantly, Attorney Lyden’s Anders brief substantially complies with
the above-stated requirements for withdrawal. While Attorney Lyden
provides few citations to the record or pertinent legal authority, he does
provide an adequate summary of the procedural history of Appellant’s case
and a brief discussion of the issues raised in Appellant’s pro se “Motion to
Appeal Guilty Plea.” Ultimately, Attorney Lyden concludes that Appellant’s
issues, and any other claims regarding the validity of his guilty plea, must be
framed as ineffective assistance of counsel claims and raised on collateral
review pursuant to Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002).
Accordingly, Attorney Lyden asserts that a direct appeal on Appellant’s
behalf is frivolous. Additionally, Attorney Lyden attached to his petition to
withdraw a copy of a letter he sent to Appellant advising him that he has the
right to retain new counsel, proceed pro se, and/or raise any issues he
deems worthy of this Court’s examination. Because Attorney Lyden
substantially complied with the requirements for withdrawal, we will now
independently review Appellant’s claims, and also determine whether there
are any other issues he could arguably present on appeal. See Daniels,
999 A.2d at 594.
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Initially, we agree with Attorney Lyden that the arguments Appellant
raised in his pro se “Motion to Appeal Guilty Plea” are properly construed as
challenges to the adequacy of his plea counsel’s representation. Recently, in
Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), our Supreme Court
reaffirmed its prior holding in Grant that, absent certain circumstances,
claims of ineffective assistance of counsel should be deferred until collateral
review under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-
9546. Holmes, 79 A.3d at 576. While the Court did identify specific
circumstances under which ineffectiveness claims may be addressed on
direct appeal, such circumstances are not present in the instant case. See
id. at 577-78 (holding that the trial court may address claim(s) of
ineffectiveness where they are “both meritorious and apparent from the
record so that immediate consideration and relief is warranted,” or where
the appellant’s request for review of “prolix” ineffectiveness claims is
“accompanied by a knowing, voluntary, and express waiver of PCRA
review”). Accordingly, the claims Appellant raised in his pro se “Motion to
Appeal Guilty Plea” may only be presented in a PCRA petition after the
conclusion of this appeal.
Additionally, our review of the guilty plea/sentencing transcript reveals
no other issues that Appellant could raise on direct appeal. Appellant’s plea
counsel did not object to the validity of Appellant’s plea during the oral
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colloquy or in a post-sentence motion. Thus, Appellant has not preserved
any challenge to the validity of his plea for our review.3 Moreover, Appellant
entered a negotiated plea agreement, and the court imposed the agreed-
upon sentence. Thus, Appellant has waived his right to challenge the
discretionary aspects of his sentence. See Commonwealth v. Dalberto,
648 A.2d 16, 20 (Pa. Super. 1994) (citing Commonwealth v. Reichle, 589
A.2d 1140, 1141 (Pa. Super. 1991) (“Where the plea agreement contains a
negotiated sentence which is accepted and imposed by the sentencing court,
there is no authority to permit a challenge to the discretionary aspects of
that sentence.”)). Finally, we ascertain nothing illegal about the sentence
Appellant received. Accordingly, we affirm Appellant’s judgment of sentence
and grant counsel’s petition to withdraw.
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3
See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.”); Commonwealth Lincoln,
72 A.3d 606, 610 (Pa. Super. 2013) (indicating challenges to the validity of
a guilty plea “must be raised by motion in the trial court in order to be
reviewed on direct appeal”) (quoting Commonwealth v. Rush, 959 A.2d
945, 949 (Pa. Super. 2008)).
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Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/22/2014
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