Com. v. Dinkins, F. ( 2018 )

J-S46040-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
FRANCIS SHARIDE DINKINS :
: No. 407 MDA 2017
Appellant
Appeal from the Judgment of Sentence February 3, 2017
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0003121-2016,
CP-36-CR-0003454-2016
BEFORE: BOWES, OLSON, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 05, 2018
Appellant Francis Sharide Dinkins appeals from the judgment of
sentence entered in the Court of Common Pleas of Lancaster County on
February 3, 2017, following a negotiated guilty plea. Appellant’s counsel also
has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967) and
its Pennsylvania counterpart Commonwealth v. Santiago, 602 Pa. 159, 978
A.2d 349 (2009) (hereinafter “Anders brief”) together with a petition to
withdraw as counsel.1 After a full examination of all the proceedings, we find
this appeal is frivolous. Accordingly, we grant counsel’s petition to withdraw
and affirm the judgment of sentence.
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* Former Justice specially assigned to the Superior Court.
1 Anders set forth the requirements for counsel to withdraw from
representation on direct appeal, and our Supreme Court applied Anders in
Santiago.
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Appellant was charged on two separate criminal dockets with various
offenses. On February 2, 2017, Appellant entered a negotiated plea of guilty
to two counts of aggravated assault, three counts of recklessly endangering
another person, one count of discharging a firearm into an occupied structure,
two counts of persons not to possess a firearm, one count of possession with
intent to deliver controlled substance (marijuana) and possession of drug
paraphernalia.2 Also on that date and in open court, the trial court sentenced
Appellant to the negotiated, aggregate term of ten (10) years to twenty (20)
years in prison. The sentencing order was entered on February 3, 2017.
Prior to imposing its sentence, the trial court informed Appellant that
before accepting his plea, it would ask him a series of questions to ensure he
understood all of the rights he would be foregoing and that he had entered
the plea freely. Appellant acknowledged signing each page of a written plea
agreement, that he understood the elements of each charge brought against
him, and that he could receive a maximum term of ninety-seven (97) years
in prison along with a fine of $157,500.00. N.T., 2/2/17, at 4-11, 14-15.
Appellant also admitted committing the acts on June 10, 2016, as described
by the district attorney. Id. at 11-13. Upon finding Appellant’s plea to be
voluntarily and knowingly entered, the trial court sentenced Appellant in
accordance with the plea agreement. Id. at 17-18. Appellant indicated to the
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218 Pa.C.S.A. §§ 2702(a)(1); 2705; 2707.1; 6105 and 35 Pa.C.S.A. §§ 780-
113(a)(30); 780-113(a)(32), respectively.
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trial court that he had reviewed with counsel the explanation of his appellate
rights located in his guilty plea colloquy and that he understood the same. Id.
at 18.
On February 21, 2017, Appellant filed a pro se letter addressed to the
trial court wherein he asked whether “there is any possible chance to have
[his] sentence adjusted.” A counseled notice of appeal was filed on Monday,
March 6, 2017, and on March 8, 2017, the trial court entered an Order
pursuant to Pa.R.A.P. 1925(b) directing Appellant to file a concise statement
of matters complained of on appeal within twenty-one days. Instead, on
March 28, 2017, Appellant’s counsel filed a statement of intent to file an
Anders brief with this Court pursuant to Pa.R.A.P. 1925(c)(4). On May 30,
2017, counsel filed her Anders brief and Application to Withdraw Appearance
with this Court. Appellant filed no further submissions either pro se or through
privately-retained counsel. The Commonwealth filed a statement with this
Court on May 31, 2017, indicating it did not intend to file an appellate brief. 3
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3 In a Memorandum decision filed on July 6, 2017, this Court granted counsel’s
petition to withdraw and quashed the appeal. See Commonwealth v.
Dinkins, 2017 WL 2895019 (Pa.Super. 2017) (unpublished memorandum).
In doing so, we found that Appellant had failed to file his notice of appeal
within thirty days of the imposition of his sentence, and, as a result, we lacked
jurisdiction to hear it. On July 21, 2017, Appellant filed a counseled
Application for Reargument En Banc or for Reconsideration with this Court
requesting us to reconsider our decision. In a Per Curiam Order entered on
September 19, 2017, this Court granted Appellant’s motion.
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Prior to addressing any question raised on appeal, we must first resolve
counsel's petition to withdraw. Commonwealth v. Goodwin, 928 A.2d 287,
290 (Pa.Super. 2007) (en banc). See also Commonwealth v. Rojas, 874
A.2d 638, 639 (Pa.Super. 2005) (citation omitted) (stating “[w]hen 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.”). There
are procedural and briefing requirements imposed upon an attorney who
seeks to withdraw on appeal pursuant to which counsel must:
1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the brief to the defendant; and 3) advise the defendant that he
or she has the right to retain private counsel or raise additional
arguments that the defendant deems worthy of the court's
attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en
banc) (citation omitted). In addition, our Supreme Court in Santiago stated
that an Anders brief 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.
Santiago, supra at 178-79, 978 A.2d at 361. Counsel also must provide the
appellant with a copy of the Anders brief, together with a letter that advises
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the appellant of his or her 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.” Commonwealth v. Nischan, 928 A.2d 349,
353 (Pa.Super. 2007) (citation omitted). Substantial compliance with these
requirements is sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290
(Pa.Super. 2007).
Herein, counsel contemporaneously filed her Application for Leave to
Withdraw as Counsel and Anders brief. In her petition, counsel states that
after a careful and conscientious examination of the record she has
determined that an appeal herein is wholly frivolous. See Application to
Withdraw Appearance at ¶ 9. The petition further explains that counsel notified
Appellant of the withdrawal request and forwarded a copy of the Anders brief
to Appellant together with a letter explaining his right to proceed pro se or
with new, privately-retained counsel to raise any additional points or
arguments that Appellant believed had merit. See id. at ¶¶ 11-12; see also
attached Letter to Appellant. The petition indicates that a copy of the
Application to Withdraw Appearance, Anders brief, and notice letter were
served on Appellant, and these documents correctly inform Appellant of his
rights.
In the Anders brief, counsel provides a summary of the facts and
procedural history of the case with citations to the record, refers to evidence
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of record that might arguably support the issue raised on appeal challenging
the discretionary aspects of the sentence, provides citations to relevant case
law, and states her reasoning and conclusion that the appeal is wholly
frivolous. See Anders Brief at 7-9. Accordingly, counsel has complied with
all of the technical requirements of Anders and Santiago. As Appellant filed
neither a pro se brief nor a counseled brief with new, privately-retained
counsel, we proceed to examine the issue of arguable merit counsel identified
in the Anders brief and to conduct a full examination of the proceedings
pursuant to Anders in an effort to discern whether any non-frivolous issues
are evident on appeal. Commonwealth v. Dempster, 2018 WL 2111634,
at *4 (Pa.Super. May 8, 2018) (en banc).
In her Anders brief, counsel presents a challenge to the consecutive
nature of Appellant’s sentence, which implicates the discretionary aspects of
that sentence. Anders brief at 7; Commonwealth v. Zirkle, 107 A.3d 127,
131 (Pa.Super. 2014). However, before we address the merits of this claim,
we must first determine the timeliness of this appeal as it affects our
jurisdiction. Commonwealth v. Ivy, 146 A.3d 241, 255 (Pa.Super. 2016)
(citing Commonwealth v. Yarris, 557 Pa. 12, 731 A.2d 581, 587 (1999))
(appellate courts may consider the issue of jurisdiction sua sponte).
“Jurisdiction is vested in the Superior Court upon the filing of a timely notice
of appeal.” Commonwealth v. Nahavandian, 954 A.2d 625, 629 (Pa.Super.
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2008) (citing Commonwealth v. Miller, 715 A.2d 1203, 1205 (Pa.Super.
1998)).
As noted, Appellant received his sentence in open court on February 2,
2017. N.T., 2/2/17, at 17-18. This Court has explained that the date of
imposition of sentence in open court is the reference point for computing time
for purposes of post–sentence motions and direct appeals, not the date upon
which the sentencing order is docketed. Nahavandian, 954 A.2d at 630.
Thus, Appellant's sentencing in open court on February 2, 2017, constitutes
the reference point for determining the timeliness of his purported post–
sentence motion and notice of appeal.4
Pennsylvania Rule of Criminal Procedure 720 reads, in relevant part, as
follows:
Rule 720. Post–Sentence Procedures; Appeal
(A) Timing.
(1) Except as provided in paragraphs (C) [after-discovered
evidence] and (D) [summary case appeals], a written post-
sentence motion shall be filed no later than 10 days after
imposition of sentence.
***
(3) If the defendant does not file a timely post-sentence motion,
the defendant's notice of appeal shall be filed within 30 days of
imposition of sentence, except as provided in paragraph (A)(4)
[addressing a Commonwealth motion to modify sentence].
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4 We note that although the cover page of the transcripts from the guilty
plea/sentencing proceeding indicates that the day was Friday, February 2,
2017, February 2, 2017, fell on a Thursday.
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Pa.R.Crim.P. 720(A)(1), (3).
Herein, Appellant had to file a timely post-sentence motion within ten
days of the trial court’s imposition of his sentence, or by February 13, 2017.5
Pa.R.Crim.P. 720(A)(1). Appellant did not file his purported post-sentence
motion until February 21, 2017. See Letter filed February 21, 2017. That
motion failed to preserve his discretionary sentencing claim for two reasons.
First, Appellant had no right to file a pro se motion because he was
represented by counsel. Commonwealth v. Ellis, 534 Pa. 176, 180, 626 A.2d
1137, 1139 (1993). This means that his pro se, post-sentence motion was a
nullity, having no legal effect. Nischan, supra, 928 A.2d at 355.
Notwithstanding, even if Appellant had filed a counselled post-sentence
motion on February 21, 2017, it would have been untimely. As Appellant’s
purported post-sentence motion was a legal nullity and untimely filed, it did
not toll Appellant's direct appeal period. Commonwealth v. Felmlee, 828
A.2d 1105, 1107 n. 1 (Pa.Super. 2003).
In order to be timely, Appellant's notice of appeal must have been filed
within thirty days of the imposition of his sentence, or by Monday, March 6,
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5 February 12, 2017, fell on a Sunday. Accordingly, Appellant had until
February 13, 2017, to file his post-sentence motion. See 1 Pa.C.S.A. § 1908.
(stating that, for computations of time, whenever the last day of any such
period shall fall on Saturday or Sunday, or a legal holiday, such day shall be
omitted from the computation.); Commonwealth v. Green, 862 A.2d 613,
618 (Pa.Super. 2004).
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2017, because the thirty-day period expired on Sunday, March 5, 2017. See
Pa.R.A.P. 903(a) (stating notice of appeal shall be filed within thirty days of
the order from which appeal is taken); Pa.C.S.A. § 1908. Appellant filed his
notice of appeal on that date; therefore, we will proceed to a consideration of
the merits of the claim he presents therein.
Generally, upon the entry of a guilty plea, a defendant waives all claims
and defenses other than those sounding in the jurisdiction of the court, the
validity of the plea, and what has been termed the “legality” of the sentence
imposed. See Commonwealth v. Eisenberg, 626 Pa. 512, 527, 98 A.3d
1268, 1276 (2014) (holding that the proper entry of a guilty plea acts to
extinguish virtually all legal challenges that could have been brought upon the
trial or appeal of the case). Herein, Appellant pled guilty to the
aforementioned charges, and the trial court entered an agreed upon sentence.
Where a defendant enters into a negotiated plea agreement that includes the
terms of the sentence, her or she may not seek a discretionary appeal relating
to those agreed-upon terms. See Commonwealth v. Brown, 982 A.2d 1017,
1019 (Pa.Super. 2009), appeal denied, 605 Pa. 692, 990 A.2d 726 (2010) see
also Commonwealth v. Dalberto, 648 A.2d 16, 20 (Pa.Super. 1994)
(citations omitted; emphasis in original) (“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
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sentence. . . permitting a discretionary appeal following the entry of a
negotiated plea would make a sham of the negotiated plea process.” ).
Appellant received the sentence to which he had agreed at the time he
entered his guilty plea; thus, he cannot now challenge the discretionary
aspects of that sentence. Accordingly, we agree with counsel that this
sentencing claim presented in the Anders brief is wholly frivolous. In light of
the foregoing, and after conducting a full examination of all the proceedings,
we discern no non-frivolous issues to be raised on appeal. Therefore, we grant
counsel’s petition to withdraw and affirm the judgment of sentence.
Petition to withdraw as counsel granted. Judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/05/2018
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