Com. v. Fisher, J. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JONATHAN B. FISHER :
:
Appellant : No. 1390 MDA 2019
Appeal from the Judgment of Sentence Entered July 15, 2019
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0003305-2019
BEFORE: SHOGAN, J., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED APRIL 17, 2020
Appellant, Jonathan B. Fisher, appeals from the judgment of sentence
entered following his conviction of stalking.1 Appellate counsel has filed a
petition seeking to withdraw her representation and a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009), which govern a withdrawal from
representation on direct appeal. We grant counsel’s petition to withdraw and
affirm.
On June 2, 2019, Appellant put a bouquet of flowers in the driveway of
his estranged wife (Victim”) and placed a church brochure in her mailbox.
Victim observed Appellant at the mailbox. Appellant was on probation for
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1 18 Pa.C.S. § 2709.1(a)(1).
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three previous convictions of stalking Victim, and there was an active
protection from abuse order in effect at the time of the incident.
On July 3, 2019, the Commonwealth filed a criminal information
charging Appellant with one count of stalking, graded as a third-degree felony.
On July 5, 2019, Appellant pled guilty pursuant to a negotiated plea
agreement. At the conclusion of the guilty plea hearing, the trial court
sentenced Appellant to a term of incarceration of time served to twenty-three
months. On July 22, 2019, Appellant filed a post-sentence motion in which
he sought to withdraw his guilty plea. The trial court denied the motion on
July 23, 2019. This timely appeal followed.
Appellant’s counsel filed with the trial court a statement pursuant to
Pa.R.A.P. 1925(c)(4,) indicating her intent to seek permission to withdraw
pursuant to Anders. The trial court drafted a Pa.R.A.P. 1925(a) opinion
explaining that, in light of counsel’s statement pursuant to Pa.R.A.P.
1925(c)(4), it was deferring “issuing any substantive opinion in support of its
judgment of sentence until [Superior Court] makes a determination as to the
existence of any arguably meritorious issues for review.” Trial Court Opinion,
9/18/19, at 1.
As noted, counsel has filed a petition to withdraw from representation.
Before we address any questions raised on appeal, we must resolve appellate
counsel’s request to withdraw. Commonwealth v. Cartrette, 83 A.3d 1030
(Pa. Super. 2013) (en banc). There are procedural and briefing requirements
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imposed upon an attorney who seeks to withdraw on direct appeal. The
procedural mandates are that 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.
Id. at 1032 (citation omitted).
In this case, those directives have been satisfied. Within the petition to
withdraw, counsel averred that she conducted an extensive review of the
record and pertinent legal research. Following that review, counsel concluded
that the present appeal is wholly frivolous. Counsel sent Appellant a copy of
the Anders brief and petition to withdraw, as well as a letter, a copy of which
is attached to the petition to withdraw. In the letter, counsel advised Appellant
that he could either represent himself or retain private counsel. Appellant has
not filed any additional documents with this Court.
We now examine whether the Anders brief satisfies the Supreme
Court’s dictates in Santiago, which provide that:
in 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.
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Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361).
Counsel’s brief is compliant with Santiago. The brief sets forth the
procedural history of this case, outlines pertinent legal authority, and
discusses counsel’s conclusion that the appeal is frivolous. We thus conclude
that the procedural and briefing requirements for withdrawal have been met.
Counsel has conducted an evaluation of Appellant’s guilty plea and
sentence. Anders Brief at 9-12. First, counsel reviewed whether the guilty
plea was voluntary, intelligent, and knowing. Id. at 9-12. Counsel also
reviewed the legality of Appellant’s sentence. Id. at 12.
We begin by observing that, generally, upon entry of a guilty plea, an
appellant waives all defects and defenses except: (1) the lack of jurisdiction;
(2) the validity of the plea; and (3) the legality of the sentence.
Commonwealth v. Jones, 929 A.2d 205, 212 (Pa. 2007). A challenge to
the legality of sentence is an attack upon the power of a court to impose a
given sentence. Commonwealth v. Lipinski, 841 A.2d 537, 539 (Pa. Super.
2004).
We first review the issue of whether Appellant’s guilty plea was
voluntary, intelligent, and knowing. Specifically, we address the claim that
Appellant “was not aware of the element of a charge of Stalking [that] requires
a Defendant to admit their acts towards another person demonstrate an intent
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to cause substantial emotional distress to another person.” Post-Sentence
Motion, 7/22/19, at 1-2.2
[A] defendant who attempts to withdraw a guilty plea
after sentencing must demonstrate prejudice on the
order of manifest injustice before withdrawal is
justified. A plea rises to the level of manifest injustice
when it was entered into involuntarily, unknowingly,
or unintelligently.
Commonwealth v. Lincoln, 72 A.3d 606, 610 (Pa. Super. 2013) (citations
and quotation marks omitted).
“There is no absolute right to withdraw a guilty plea.” Commonwealth
v. Broaden, 980 A.2d 124, 128 (Pa. Super. 2009) (citations omitted). In
order to withdraw a guilty plea following the imposition of sentence, “a
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2 We observe that
Normally, issues not preserved in the trial court may
not be pursued before this Court. Pa.R.A.P. 302(a).
For example, a request to withdraw a guilty plea on
the grounds that it was involuntary is one of the claims
that must be raised by motion in the trial court in
order to be reviewed on direct appeal. ... Moreover,
for any claim that was required to be preserved, this
Court cannot review a legal theory in support of that
claim unless that particular legal theory was
presented to the trial court. Thus, even if an appellant
did seek to withdraw pleas … in the trial court, the
appellant cannot support those claims in this Court by
advancing legal arguments different than the ones
that were made when the claims were preserved.
Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008). Therefore,
we limit our review of the challenge to the validity of the guilty plea to the
legal theory preserved in Appellant’s post-sentence motion.
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defendant must demonstrate that manifest injustice would result.” Id. at 129.
“Manifest injustice may be established if the plea was not tendered knowingly,
intelligently, and voluntarily.” Id.
In considering the validity of a guilty plea colloquy, “[t]he Pennsylvania
Rules of Criminal Procedure mandate pleas be taken in open court and require
the court to conduct an on-the-record colloquy to ascertain whether a
defendant is aware of his rights and the consequences of his plea.”
Commonwealth v. Prendes, 97 A.3d 337, 352 (Pa. Super. 2014) (citations
omitted). Pursuant to Pa.R.Crim.P. 590, the trial court should inquire whether
the defendant understands, among other things, “the nature of the charges
to which he or she is pleading guilty[,]” and “the permissible range of
sentences and/or fines” possible. Pa.R.Crim.P. 590, cmt. “[N]othing in the
rule precludes the supplementation of the oral colloquy by a written colloquy
that is read, completed, and signed by the defendant and made a part of the
plea proceedings.” Commonwealth v. Bedell, 954 A.2d 1209, 1212-1213
(Pa. Super. 2008) (citation omitted).
Thereafter,
[t]he reviewing Court will evaluate the adequacy of the plea
colloquy and the voluntariness of the resulting plea by examining
the totality of the circumstances surrounding the entry of that
plea. Pennsylvania law presumes a defendant who entered a
guilty plea was aware of what he was doing, and the defendant
bears the burden of proving otherwise.
Prendes, 97 A.3d at 352 (citations omitted). Accordingly, even if there is an
omission in the oral plea colloquy, “a plea of guilty will not be deemed invalid
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if the circumstances surrounding the entry of the plea disclose that the
defendant had a full understanding of the nature and consequences of his plea
and that he knowingly and voluntarily decided to enter the plea.”
Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011)
(citation omitted).
Our review of the certified record reflects that Appellant completed a
written guilty plea colloquy on July 15, 2019. In the colloquy, Appellant
acknowledged that he can read, write, speak, and understand the English
language. Guilty Plea Colloquy, 7/15/19 at 1 ¶1.
Also on July 15, 2019, Appellant appeared at a guilty plea hearing, at
which the trial court conducted a thorough oral colloquy upon accepting
Appellant’s guilty plea. N.T., 7/15/19, at 2-10. Specifically, the following
transpired, which indicates that Appellant was made aware of all of the
elements of the crime of stalking,3 including an intent to cause substantial
emotional distress to another person:
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3 Appellant was charged with the crime of stalking pursuant to subsection
(a)(1), which is set forth under the Crimes Code as follows:
§ 2709.1. Stalking.
(a) Offense defined. — A person commits the crime of stalking
when the person either:
(1) engages in a course of conduct or repeatedly
commits acts toward another person, including
following the person without proper authority, under
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THE COURT: I’m told that you are here to plead guilty to the
offense of stalking. That is defined as engaging in a course
of conduct or repeatedly committing acts towards another
person, including following the person without proper
authority under circumstances which demonstrate either
intent to place that person in reasonable fear of bodily injury or
to cause that person substantial emotional distress.
Do you understand that?
[APPELLANT]: Yes.
THE COURT: That involves a family member. And because you
have prior convictions for this, this is graded as a felony of the
third degree, which carries up to seven years in prison and a
$15,000 fine.
Do you understand?
[APPELLANT]: Yes.
Id. at 6 (emphases added).
The portion of the oral colloquy set forth above establishes that
Appellant was presented with, and understood, both the nature of the charge
to which he was pleading guilty and the accompanying permissible range of
sentence. Hence, the dictates Pa.R.Crim.P. 590 were satisfied. Accordingly,
any claim that Appellant’s guilty plea was not tendered knowingly,
intelligently, and voluntarily lacks merit.
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circumstances which demonstrate either an intent to
place such other person in reasonable fear of bodily
injury or to cause substantial emotional distress to
such other person
18 Pa.C.S. §2709.1(a)(1).
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We next consider the issue of whether the sentence imposed upon
Appellant was legal. Anders Brief at 12. As stated above, upon entry of a
guilty plea, an appellant waives all defects and defenses except: (1) the lack
of jurisdiction; (2) the validity of the plea; and (3) the legality of the sentence.
Jones, 929 A.2d at 212. We note that “[o]ne who pleads guilty and receives
a negotiated sentence may not then seek discretionary review of that
sentence.” Commonwealth v. O'Malley, 957 A.2d 1265, 1267 (Pa. Super.
2008).
Legality of sentence issues occur generally either (1) when a trial court’s
traditional authority to use discretion in the act of sentencing is somehow
affected; and/or (2) when the sentence imposed is patently inconsistent with
the sentencing parameters set forth by the General Assembly.
Commonwealth v. Foster, 17 A.3d 332, 342 (Pa. 2011). The question of
whether a claim implicates the legality of a sentence presents a pure question
of law. Id. at 340 n.13. Issues relating to the legality of a sentence are
reviewed de novo, and our scope of review is plenary. Commonwealth v.
Infante, 63 A.3d 358, 363 (Pa. Super. 2013).
Additionally, “when a negotiated plea includes sentencing terms (or,
more properly, the Commonwealth’s commitment to recommend a certain
sentence), the defendant’s knowing and voluntary acceptance of those terms
rightly extinguishes the ability to challenge a sentence the defendant knew
was a proper consequence of his plea.” Commonwealth v. Eisenberg, 98
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A.3d 1268, 1277 (Pa. 2014); see also Commonwealth v. Reichle, 589 A.2d
1140, 1141 (Pa. Super. 1991) (stating that where the plea agreement
contains a negotiated sentence which is accepted and imposed by the
sentencing court, there is no authority to permit an excessiveness challenge).
Appellant pled guilty to the crime of stalking under 18 Pa.C.S. §
2709.1(a)(1), which is graded as a third-degree felony. 18 Pa.C.S. §
2709.1(c)(2). A person convicted of a third-degree felony may not be
sentenced to a term of imprisonment for more than seven years. 18 Pa.C.S.
§ 1103. Also, a person convicted of a third-degree felony may be sentenced
to pay a fine not exceeding $15,000.00. 18 Pa.C.S. § 1101. In addition,
pursuant to the Sentencing Guidelines, the crime of stalking carries an offense
gravity score of six. 204 Pa. Code § 303.15. The record indicates that
Appellant’s prior offense score was zero. Guilty Plea Agreement/Sentencing
Guidelines Worksheet, 7/15/19, at 2. Accordingly, under the Sentencing
Code, Appellant’s standard range minimum sentence is three to twelve
months of incarceration. 204 Pa. Code § 303.16. The aggravated/mitigated
range sentence is plus or minus six months or less. Id.
Our review of the record further indicates that Appellant entered a
negotiated guilty plea, in which he agreed to serve a term of incarceration of
time served to twenty-three months. Guilty Plea Agreement/Sentencing
Guidelines Worksheet, 7/15/19, at 1. As the Assistant District Attorney stated
at the outset of Appellant’s guilty plea and sentencing hearing, “[Appellant] is
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present in court with counsel to enter into a negotiated guilty plea, stalking,
domestic violence, a felony of the third degree, for a sentence of not less than
time served to no more than 23 months and costs.” N.T., 7/15/19, at 2.
Subsequently, Appellant was sentenced as follows:
THE COURT: What I said earlier I meant. Technically your
guidelines start at three months. This is a mitigated sentence,
which means you’re getting less than what you should have gotten
for this.
Now, I understand the facts and I understand there is an
agreement so I’m going to go along with this. …
I will accept [Appellant’s] plea of guilt pursuant to the
negotiated plea agreement.
On Count 1, [Appellant] shall receive a sentence of not less
than time served to no more than 23 months in Lancaster County
Prison plus costs. There’s no restitution owing. [Appellant] may
be paroled immediately without the necessity of a parole petition.
And although it’s academic, he’s eligible for re-entry programming
at the Lancaster County Prison. The [c]ourt notes that this is a
mitigated range sentence for the reasons stated by counsel.
N.T., 7/15/19, at 10-11.
Thus, the sentence of time served to twenty-three months of
incarceration did not exceed the statutory maximum of seven years of
incarceration authorized by the General Assembly. Furthermore, the sentence
imposed is in the mitigated sentencing guideline range. Therefore, we find
the trial court imposed a legal sentence, i.e., one which is patently consistent
with the sentencing parameters set forth by the General Assembly. Foster,
17 A.3d at 342. Accordingly, any challenge to the legality of Appellant’s
sentence lacks merit.
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Finally, we have independently reviewed the record in order to
determine whether there are any non-frivolous issues present in this case that
Appellant may raise. Commonwealth v. Yorgey, 188 A.3d 1190, 1198-
1199 (Pa. Super. 2018) (en banc). Having concluded that there are no
meritorious issues, we grant Appellant’s counsel permission to withdraw, and
we affirm the judgment of sentence.
Petition to withdraw as counsel granted. Judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/17/2020
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