Com. v. Martin, G. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GERALD ROBERT MARTIN :
:
Appellant : No. 795 MDA 2021
Appeal from the Judgment of Sentence Entered May 24, 2021
In the Court of Common Pleas of Bradford County Criminal Division at
No(s): CP-08-CR-0000362-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GERALD ROBERT MARTIN :
:
Appellant : No. 796 MDA 2021
Appeal from the Judgment of Sentence Entered May 24, 2021
In the Court of Common Pleas of Bradford County Criminal Division at
No(s): CP-08-CR-0000214-2020
BEFORE: BOWES, J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED DECEMBER 13, 2022
Appellant, Gerald Robert Martin, appeals from the judgments of
sentence imposed following his entry of a nolo contendere plea to possession
of a controlled substance with intent to deliver (methamphetamine, less than
two and one-half grams) and a guilty plea to possession of drug
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* Retired Senior Judge assigned to the Superior Court.
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paraphernalia.1 Following prior remands to ensure that Appellant’s counsel
properly sought to withdraw from his representation, we are tasked with
reviewing a petition to withdraw as counsel and an accompanying brief
pursuant to Anders v. California, 386 U.S. 738 (1967). After protracted
review, we grant the petition to withdraw as counsel and affirm the judgments
of sentence.
On or about August 29, 2018, the state police arranged through a
confidential informant to purchase a controlled substance from Appellant. N.T.
1/12/21, 9. The informant met with Appellant and another person named
Amanda Wilcox in Athens Township in Bradford County. Id. The informant
purchased less than two and one-half grams of methamphetamine from them.
Id. Ms. Wilcox was the driver of a car at that location and Appellant was in
the front passenger seat. Id. Appellant conducted the conversation to
arrange the transaction and Ms. Wilcox was the one who completed the
exchange with the informant. Id. The methamphetamine sold to the
informant weighed .79 grams. Id. After the police stopped a car transporting
Appellant on March 29, 2020, they found Appellant in possession of a
hypodermic needle. Id. at 8.
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1 35 P.S. § 780-113(a)(30), (32).
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On January 12, 2021, Appellant entered his pleas to the above-
referenced charges.2 N.T. 1/12/21, 1-10. The parties did not reach an
agreement on a sentencing recommendation, but the Commonwealth agreed
to nolle prosse additional charges in exchange for the entry of the pleas.3 Id.
at 1-2; N.T. 5/24/21, 8. Sentencing was deferred for the preparation of a
pre-sentence investigation report. N.T. 1/12/21, 9.
On May 24, 2021, the court imposed an aggregate imprisonment term
of sixteen to sixty months, including consecutive prison terms of fifteen to
forty-eight months for possession of a controlled substance with intent to
deliver and one to twelve months for possession of drug paraphernalia.4 N.T.
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2 The drug possession charge was docketed at CP-08-CR-0000214-2020, and
the paraphernalia charge was docketed at CP-08-CR-0000362-2020. This
Court consolidated these cases, sua sponte, pursuant to Pa.R.A.P. 513. See
Order, 8/3/21 (per curiam).
3 The additional charges included two counts of criminal conspiracy (for
delivery of methamphetamine and heroin), an additional count of possession
of a controlled substance with intent to deliver (heroin), and single counts of
criminal use of a communication facility and false identification to a law
enforcement officer. Bills of Information, CP-08-CR-0000362-2020, 8/5/20,
1; Bills of Information, CP-08-CR-0000214-2020, 5/5/20, 1-2.
4 The Sentencing Guidelines recommended minimum imprisonment terms of
fifteen to twenty-one months, plus or minus six months for aggravating or
mitigating circumstances, for possession of a controlled substance with intent
to deliver, and restorative sanctions to four months, plus three months for
aggravating circumstances, for possession of drug paraphernalia. See 204
Pa. Code § 303.15 (7th ed., amend. 4 supp.-amend. 5; comprehensive offense
listing) (providing offense gravity scores of six for possession of a controlled
substance with intent to deliver and one for possession of drug paraphernalia);
204 Pa. Code § 303.16(a) (7th ed., amend. 4-amend. 5; basic sentencing
matrix); N.T. 5/24/21, 2 (noting the applicable guideline ranges and that
Appellant had a prior record score of four).
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5/24/21, 6-9; Sentencing Order, CP-08-CR-0000214-2020, 5/24/21, 1;
Sentencing Order, CP-XX-XXXXXXX-2020, 5/24/21, 1. Appellant did not file
post-sentence motions and filed timely notices of appeals in each of the
underlying cases. Notice of Appeal, CP-08-CR-0000214-2020, 6/21/21;
Notice of Appeal, CP-08-CR-000362-2020, 6/21/21, 1.
Appellant’s counsel filed an Anders brief for these consolidated appeals
but failed to file a petition to withdraw as counsel along with a required notice
letter advising Appellant of his rights under Anders and enclosing copies of
the brief and the petition to withdraw as counsel. After two orders directing
counsel to provide proof that Appellant was properly advised of his rights went
unanswered, we remanded this case for the purposes of allowing the plea
court to hold a hearing to determine whether counsel had abandoned
Appellant. Commonwealth v. Martin, 2022 WL 2764211, *2 (Pa. Super.,
filed July 15, 2022) (unpublished memorandum). Appellant’s counsel
subsequently filed a petition to withdraw as counsel with this Court, and the
plea court informed this Court of its findings that counsel had not abandoned
his client and had filed the withdrawal motion to “cure the identified
deficiencies” that were addressed in our former memorandum. Order, CP-08-
CR-0000214-2020 & CP-08-CR-000362-2020, 8/8/22, ¶¶ 3-5; Application to
Withdraw as Counsel, 7/29/22.
Upon further review, we remanded a second time because we noticed
that the certified record did not contain a proof of service reflecting counsel’s
service of the Anders brief on Appellant. Commonwealth v. Martin, 2022
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WL 7275655, *3 (Pa. Super., filed Oct. 13, 2022). At our direction, Appellant’s
counsel cured this omission by refiling copies of the Anders brief, the petition
to withdraw as counsel, and the letter advising Appellant of his rights to
proceed pro se or with new retained counsel, along with a new proof of service
reflecting service on Appellant. Anders Brief, 10/20/22; Petition to Withdraw
as Counsel, 10/20/22; Correspondence to Appellant, 7/28/22; Proof of
Service, 10/20/22. We may now proceed with substantive review.
Counsel’s Anders brief identifies three issues:
1. Whether the Appellant’s plea was knowing, voluntary[,] and
intelligent.
2. Whether the sentence imposed was appropriate given the
circumstances of this case.
3. Whether the Appellant’s sentence was legal and within
Sentencing Guidelines for the Commonwealth of
Pennsylvania.
Anders brief, at 3.
Prior to addressing the issues identified in the Anders brief, we must
first resolve counsel’s petition to withdraw. Commonwealth v. Goodwin,
928 A.2d 287, 290 (Pa. Super. 2007) (en banc). An attorney seeking to
withdraw on appeal pursuant to Anders must take the following actions:
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.
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Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc) (citation omitted). Our Supreme Court has also stated that a proper
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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Counsel also
must provide the appellant with a copy of the Anders brief, together with a
letter that advises 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 the Anders requirements is sufficient.” Commonwealth v.
Redmond, 273 A.3d 1247, 1252 (Pa. Super. 2022) (citation omitted).
Counsel filed an Anders brief and a petition to withdraw as counsel.
The Anders brief substantially complies with the requirements set forth in
Santiago, although we note that the summary of the procedural history and
facts in the brief does not contain citations to the certified record and the
“Order in Question” section of the brief contains nothing after a heading for
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that section. Anders brief, at v, 4-9. The withdrawal petition states that
counsel has conducted conscientious examination of the record and
determined that the appeal is without merit. Petition to Withdraw as Counsel,
10/20/22, ¶ 2. Counsel has also provided this court with his correspondence
to Appellant explaining Appellant’s right to retain new counsel or to proceed
pro se to raise additional issues that Appellant deems worthy of this Court’s
attention. Therefore, counsel has substantially complied with the technical
requirements for withdrawal under Anders and Santiago.5
By entering guilty and nolo contendere pleas without an agreement as
to a sentencing recommendation, Appellant limited the cognizable issues on
appeal to those involving the validity of the pleas, the lower court’s
jurisdiction, the discretionary aspects of the sentence, and the legality of the
sentence. See Commonwealth v. Eisenberg, 98 A.3d 1268, 1275 (Pa.
2014) (“[U]pon 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”)
(citation omitted); Commonwealth v. DiClaudio, 210 A.3d 1070, 1074 n.5
(Pa. Super. 2019) (“Because Appellant entered an open guilty plea as to the
sentence imposed, he is not precluded from appealing the discretionary
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5 We note that, as of the filing of this memorandum, more than thirty days
has passed since counsel demonstrated his service of the Anders brief and
the petition to withdraw as counsel and that Appellant has not filed any
responsive pleadings as a pro se litigant and that there have been no filings
reflecting the entry of an appearance for any privately-retained counsel.
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aspects of his sentence.”) (citation omitted). Here, Appellant’s counsel
addresses the voluntariness of the plea, and the discretionary aspects and
legality of the sentence.6
As to the validity of the pleas, counsel concludes that there was no claim
of arguable merit to raise because the plea court’s oral plea colloquy
addressed all the necessary elements for a valid plea and the court’s
questioning of Appellant established the voluntariness of the pleas. Anders
Brief at 12-14. We agree with counsel, but additionally note that Appellant
waived any hypothetical challenge to the validity of his pleas by not objecting
to the pleas at the plea hearing or filing a timely motion to withdraw his pleas.
See Commonwealth v. Lincoln, 72 A.3d 606, 609-10 (Pa. Super. 2013) (“A
defendant wishing to challenge the voluntariness of a guilty plea on direct
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6 To the extent that counsel declined to address the jurisdiction of the lower
court, we do not discern any claim of merit that could have been raised: the
record demonstrates that Appellant’s crimes took place within Bradford
County, Appellant had adequate notice of his criminal charges, and the plea
court, as a judge sitting for the Bradford County Court of Common Pleas, was
competent to accept Appellant’s pleas to offenses under the Crimes Code.
N.T. 1/12/21, 8-9 (Appellant not contesting the summary of the facts
presented at his plea hearing); see also Commonwealth v. Jones, 929 A.2d
205, 210 (Pa. 2007) (noting that “courts of common pleas have statewide
jurisdiction in all cases arising under the Crimes Code); Commonwealth v.
Goldblum, 447 A.2d 234, 244 (Pa. 1982) (“Subject matter jurisdiction in the
trial court exists by virtue of the presentation of prima facie evidence that a
criminal act occurred within the jurisdiction of the court.”); Commonwealth
v. McNeil, 665 A.2d 1247, 1251 (Pa. Super. 1995) (“Personal jurisdiction in
a criminal matter is secured through the defendant’s presence within the
territorial jurisdiction of the court.”).
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appeal must either object during the plea colloquy or file a motion to withdraw
the plea within ten days of sentencing.”).
Assuming that waiver was inapplicable, we agree with counsel that any
challenge to the validity of the pleas would have been frivolous. There are six
elements essential to a valid plea colloquy that are outlined in the comment
to Pa.R.Crim.P. 590(A)(2) as follows:
(1) Does the defendant understand the nature of the charges to
which he or she is pleading guilty or nolo contendere?
(2) Is there a factual basis for the pleas?
(3) Does the defendant understand that he or she has the right
to trial by jury?
(4) Does the defendant understand that he or she is presumed
innocent until found guilty?
(5) Is the defendant aware of the permissible range of
sentences and/or fines for the offenses charged?
(6) Is the defendant aware that the judge is not bound by the
terms of any plea agreement tendered unless the judge
accepts such agreement.
Pa.R.Crim.P. 590, Comment.7 The plea court covered the first five elements
in its oral plea colloquy and the sixth element was not applicable where there
was no negotiated plea agreement. See N.T. 1/12/21 4 (presumption of
innocence), 4-5 (rights to a trial by jury), 6-7 (elements of the offenses along
with exposure to sentences and fines), 7-9 (factual basis for both pleas).
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7 A seventh element involving pleas to murder generally is not applicable in
this case.
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With respect to the discretionary aspects of the sentence, Appellant’s
counsel concludes that any sentencing claim would be meritless because
Appellant could not prove that the plea court abused its discretion where,
following its review of a pre-sentence investigation report, it imposed terms
at the “low end” of the standard guideline ranges and the overall sentencing
scheme “does not appear to be unduly harsh or excessive.” Anders Brief at
14-17. We agree with counsel’s merits analysis.8 Counsel correctly calculates
that the individual terms of sentence were within the standard ranges
recommended by the Sentencing Guidelines. See supra note 4. Because the
terms were within the standard range, they are presumed to have been
reasonable. See Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super.
2010) (“[W]here a sentence is within the standard range of the guidelines,
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8 Ordinarily, we would have found that this claim was waived for lack of
preservation because Appellant did not object to his sentence at the
sentencing hearing or file a post-sentence motion for reconsideration of
sentence. See Commonwealth v. Hartman, 908 A.2d 316, 319 (Pa. Super.
2006) (Hartman waived a discretionary sentencing claim by not preserving it
at sentencing or in a timely post-sentence motion). In this instance, however,
we would be unable to rest on waiver because the plea court misadvised
defendant as to his post-sentence motion rights and falsely gave Appellant
the impression that a sentencing claim could have been preserved either in a
post-sentence motion or on appeal, whereas in reality, preservation in a post-
sentence motion would have been a prerequisite for appellate review of a
sentencing claim. N.T. 5/24/21, 10 (“THE COURT: Very good. Mr. Martin
there’s two ways you can challenge the sentence. You can file a motion with
me, you have to do that in ten (10) days. You can file an appeal, you have to
do that within thirty (30) days.…”); see, e.g., Commonwealth v. Malovich,
903 A.2d 1247, 1252 (Pa. Super. 2006) (declining to find waiver of sentencing
claims where a probation revocation court failed to advise Malovich of his right
to file post-sentence motions).
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Pennsylvania law views the sentence as appropriate under Sentencing Code”)
(citation omitted). Moreover, because the plea court reviewed a pre-sentence
investigation report prior to imposing the terms, the court is presumed to have
been aware of the relevant sentencing factors and properly weighed them,
and thus Appellant could not overcome the presumption of the reasonableness
of his sentence by alleging that the court misapplied the relevant factors for
sentencing. See Commonwealth v. Bonner, 135 A.3d 592, 605 (Pa. Super.
2016) (“Where [a PSI] exist[s], we [ ] presume that the [trial court] was
aware of relevant information regarding the defendant’s character and
weighed those considerations along with mitigating statutory factors. A [PSI]
constitutes the record and speaks for itself.”) (citation omitted).
In these particular circumstances, we also would not conclude that the
plea court committed an abuse of discretion by imposing consecutive
imprisonment sentences. See Commonwealth v. Austin, 66 A.3d 798, 808
(Pa. Super. 2013) (“Generally, Pennsylvania law affords the sentencing court
discretion to impose its sentence concurrently or consecutively to other
sentences being imposed at the same time or to sentences already imposed.”)
(citation omitted).
Appellant’s counsel concludes the Anders brief by noting that a
challenge to the legality of the sentence would fail because the terms of
imprisonment had to be legal because they were within the standard range
recommended by the Sentencing Guidelines. Anders Brief at 17. We agree
with counsel that the sentence is legal. Both terms of imprisonment were
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within the maximum limits for the classes of the offenses, and there is no
apparent issue with the court’s authority to impose the sentences.9 See N.T.
1/12/21, 6-7 (plea court notifying Appellant of the maximum possible prison
terms for his convictions including ten years for possession of a controlled
substance with intent to deliver and one year for possession of drug
paraphernalia); 35 P.S. § 780-113(f)(1.1) (setting the maximum
imprisonment limit for Appellant’s conviction for possession of a controlled
substance with intent to deliver at ten years); 35 P.S. § 780-113(i) (setting
the maximum imprisonment limit for Appellant’s conviction for possession of
drug paraphernalia at one year).
Our independent review of the record confirms Appellant’s counsel’s
conclusion that there were no claims of arguable merit that could be raised on
Appellant’s behalf. Judgments of sentence affirmed. Petition to withdraw as
counsel granted.
Judge Nichols joins the memorandum.
Judge Bowes concurs in the result.
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9 While a trial court’s failure to make a statutorily required determination of a
defendant’s eligibility for a minimum sentence under the Recidivism Risk
Reduction Inventive (“RRRI”) program implicates the legality of the sentence
imposed, see Commonwealth v. Robinson, 7 A.3d 868, 871 (Pa. Super.
2010), we note that the plea court properly assessed Appellant’s RRRI
eligibility. N.T. 5/24/21, 7 (THE COURT: “So we’ll indicate the defendant is
RRRI eligible and eligible for the State Drug Treatment Program.”).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/13/2022
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