Com. v. Phyfar, D. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DOUGLAS PHYFAR :
:
Appellant : No. 3200 EDA 2018
Appeal from the Judgment of Sentence Entered September 27, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0011428-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DOUGLAS PHYFAR :
:
Appellant : No. 3201 EDA 2018
Appeal from the Judgment of Sentence Entered September 27, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0011436-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DOUGLAS PHYFAR :
:
Appellant : No. 3203 EDA 2018
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Appeal from the Judgment of Sentence Entered September 27, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0011439-2016
BEFORE: SHOGAN, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY SHOGAN, J.: FILED MARCH 11, 2020
Appellant, Douglas Phyfar, appeals from the judgments of sentence
entered following his convictions of various crimes related to multiple
robberies committed over an approximate two-month period in 2016.
Appellate counsel has filed petitions seeking to withdraw his 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 petitions
to withdraw and affirm.
The trial court set forth the procedural history of this case as follows:
Between May 16 and July 23, 2016, [A]ppellant was
involved in a string of robberies and thefts in South Philadelphia.
On June 19, 2018, [A]ppellant pled guilty to three counts of
robbery [and] three counts of possession of an instrument of
crime (PIC).[1, 2] The court deferred [A]ppellant’s sentencing and
ordered a pre-sentence investigation.
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 3701 and 907, respectively.
2We note that Appellant also pled guilty to various crimes at two additional
Philadelphia County Court of Common Plea docket numbers, i.e., CR-11437-
2016 and CR-11438-2016, which are not the subject of the within appeals.
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On September 27, 2018, this court sentenced [A]ppellant to
five (5) to twelve (12) years in prison for robbery followed by three
years’ probation, and a concurrent prison term of two-and-a-half
(2 ½) to five (5) years on the PIC bill (case booked at CR-11439-
2016). The court also imposed concurrent sentences of two-and-
a-half (2 ½) to five (5) years in prison followed by three (3) years
of probation for the other robbery bills (cases docketed at CR
114[2]8 and 11436). The court also ordered [A]ppellant to pay
restitution to his victims. No further penalty was imposed on the
remaining bills.
Appellant thereafter filed a Motion for Reconsideration of
Sentence, which this court denied on October 9, 2018.
On October 19, 2018, [A]ppellant filed … timely Notice[s] of
Appeal in Superior Court. This court subsequently granted trial
counsel’s Motion to Withdraw and appointed appellate counsel.
On December 6, 2018, the court ordered [A]ppellant to file a
Statement of Matters Complained of on Appeal pursuant to
Pa.R.A.P. 1925(b). … On April 3, 2019, appellate counsel timely
filed a Statement of Matters Complained of on Appeal in which he
stated his intent to file an Anders/McClendon brief in Superior
Court.
Trial Court Opinion, 4/26/19, at 1-2.
As noted, counsel has filed petitions to withdraw from representation.
Before we address any questions raised on appeal, we must resolve appellate
counsel’s requests to withdraw. Commonwealth v. Cartrette, 83 A.3d 1030
(Pa. Super. 2013) (en banc). There are procedural and briefing requirements
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
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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 petitions
to withdraw, counsel averred that he conducted an extensive review of the
record and pertinent legal research. Following that review, counsel concluded
that the present appeals are wholly frivolous. Counsel sent Appellant a copy
of the Anders brief and petitions to withdraw, as well as a letter, a copy of
which is attached to the petitions 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.
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 case authority, and
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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 identified the following issues that Appellant believes entitle
him to relief:
1. THE TRIAL COURT COMMITTED AN ABUSE OF
DISCRETION BY DENYING APPELLANT’S MOTION FOR
RECONSIDERATION OF SENTENCE BECAUSE THE AGGREGATE
SENTENCE IMPOSED ON APPELLANT WAS CONTRARY TO
DISCUSSIONS WHICH THE PARTIES HAD ABOUT THE SENTENCES
IMPOSED HEREIN RUNNING CONCURRENTLY WITH A FEDERAL
SENTENCE APPELLANT WAS SERVING.
2. THE TRIAL COURT COMMITTED AN ABUSE OF
DISCRETION BY DENYING APPELLANT’S MOTION FOR
RECONSIDERATION OF SENTENCE BECAUSE BY ORDERING THAT
THE SENTENCE IMPOSED BY THE COURT BE SERVED
CONSECUTIVELY TO A FEDERAL SENTENCE APPELLANT WAS
SERVING, THE COURT ESSENTIALLY CAUSED APPELLANT TO
SERVE A SENTENCE GREATER THAN THE ONE RECOMMENDED BY
THE COMMONWEALTH.
3. THE ENTRY OF APPELLANT’S GUILTY PLEAS WAS
UNKNOWONG UNINTELLIGENT, AND INVOLUNTARY BECAUSE
APPELLANT ENTERED THEM BELIEVING THAT THE SENTENCE
ULTIMATELY IMPOSED UPON HIM WAS GOING TO BE ORDERED
TO BE SERVED CONCURENTLY WITH A FEDERAL SENTENCE
APPELLANT WAS SERVING.
Anders Brief at 8, 11, and 14 (verbatim).
Appellant first argues that the sentencing court abused its discretion in
denying his motion for reconsideration of sentence. Anders Brief at 8-11.
Specifically, Appellant contends that “the parties discussed running the
sentence … concurrently with [a] federal sentence during plea negotiations
and thus, because the sentence ultimately imposed did not conform to those
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discussions[,] it violated the plea agreement and should have been vacated.”
Id. at 8-9.
When evaluating the terms of a negotiated plea agreement, we are
guided by the following long-standing principles:
Although a plea agreement occurs in a criminal context, it
remains contractual in nature and is to be analyzed under
contract-law standards. Furthermore, disputes over any
particular term of a plea agreement must be resolved by objective
standards. A determination of exactly what promises constitute
the plea bargain must be based upon the totality of the
surrounding circumstances and involves a case-by-case
adjudication.
Any ambiguities in the terms of the plea agreement will be
construed against the Government. Nevertheless, the agreement
itself controls where its language sets out the terms of the bargain
with specificity.
Commonwealth v. Kroh, 654 A.2d 1168, 1172 (Pa. Super. 1995) (internal
citations omitted).
“Plea bargains which are entered knowingly and voluntarily are viewed
with favor in this Commonwealth. If a trial court accepts a plea bargain, the
defendant who has given up his constitutional right to trial by jury must be
afforded the benefit of all promises made by the district attorney.”
Commonwealth v. Hainesworth, 82 A.3d 444, 449 (Pa. Super. 2013)
(quoting Commonwealth v. Fruehan, 557 A.2d 1093, 1094 (Pa. Super.
1989)). “Specific enforcement of valid plea bargains is a matter of
fundamental fairness.” Hainesworth, 82 A.3d at 449. “In determining
whether a particular plea agreement has been breached, we look to ‘what the
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parties to this plea agreement reasonably understood to be the terms of the
agreement.’” Id. at 447 (quoting Fruehan, 557 A.2d at 1095).
Instantly, our review of the certified record reflects that the guilty plea
agreement did not contain a negotiated term that Appellant’s sentence would
run concurrently with a federal sentence. The record reveals that, at the time
of his guilty plea, Appellant understood that he was entering an open guilty
plea. N.T., 6/19/18, at 9. The trial court specifically stated, “This is an open
guilty plea, that means the DA will recommend whatever sentence he thinks
is appropriate.” Id. The record also indicates that the trial court stated it
would not impose a sentence that was more than the Commonwealth’s
recommendation. Id. Hence, the record is devoid of any indication that
Appellant received a promise that, in exchange for a guilty plea, his sentence
would be ordered to run concurrently with a federal sentence he had received.
Accordingly, Appellant’s claim that the trial court failed to honor a sentencing
provision of a negotiated plea agreement is unsupported by the certified
record. Therefore, Appellant’s first issue lacks merit.
In his second issue, Appellant again argues that the sentencing court
abused its discretion in denying his motion for reconsideration of sentence.
Anders Brief at 11-14. Specifically, Appellant alleges the following:
[B]y ordering that the [instant] sentence … be served
consecutively to his federal sentence, the trial court committed an
abuse of discretion by not reconsidering and reducing the length
of the sentence … because[,] when the term of [A]ppellant’s
federal sentence … is added to the sentence imposed herein, the
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combined sentence exceeded the Commonwealth’s recommended
sentence in violation of the plea agreement.
Id. at 11-12. Again, our review of the certified record belies Appellant’s claim.
The record reflects the following transpired at Appellant’s guilty plea
hearing:
THE COURT: All right. This is an open guilty plea, that means the
DA will recommend whatever sentence he thinks is appropriate.
You’ve already discussed with your lawyer what you understand
the recommendation is going to be, correct?
[APPELLANT]: Yes.
THE COURT: Now, I’m not bound by that recommendation. I
want you to understand that. Theoretically, I could sentence you
up to the maximum, but as I told you …, although I don’t know
right now exactly what sentence I’m going to impose, it will not
be more than the Commonwealth’s recommendation.
That’s the ceiling. It could go lower. It wouldn’t go higher.
Do you understand that?
[APPELLANT]: Yes.
N.T., 6/19/18, at 9 (emphasis added). The trial court subsequently confirmed
the sentencing agreement as follows:
THE COURT: Has anyone tried to persuade you by promises other
than what I’ve already discussed with you? There is a
sentencing promise I’ve made to you, but except for that
promise, has anybody made any other promises to you or has
anybody tried to threaten you or force you to give up your right
to a trial in these cases?
[APPELLANT]: No.
Id. at 12 (emphasis added).
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The record also shows that the Commonwealth made the following
sentencing recommendation at Appellant’s sentencing hearing:
[ASSISTANT DISTRICT ATTORNEY]: So, you know, the
guidelines are the guidelines. And I understand that [Appellant]
has been sentenced federally and that that is going to be a
consecutive sentence. I do think that aggravation in this case
would be appropriate
I’m not going to ask for an aggravated sentence, but I think
it would be appropriate given the fact that [Appellant] was preying
on hard-working women who came to the United States trying to
earn a living.
***
Your Honor, he has a very serious history. He’s had -- I
think I saw 26 arrests and 22 convictions. He’s been committed
18 times, or something like that, based on the PSI. And that’s
why I do believe that the sentence I’m requesting is appropriate.
I am asking Your Honor – I’m actually asking you to go into
the below mitigated range. I’m asking you to deviate from
the guidelines and sentence him on the lead charge, the F1
robbery for which he was caught running from the store, to
a sentence of 6 to 12 years. That is six months below
mitigated.
And the reason why I’m doing that is because I think that’s
an appropriate sentence in this case. Six to 12 years is still a long
time. It is a long time. We don’t know, you know, if he’s going
to be paroled at his minimum. But that takes into account the
15 months that he’s going to receive in the federal system.
And I think that that total sentence, which is approximately
going to be seven years and three months, is an
appropriate sentence for what he did here.
I’d ask you to sentence him on the F2 robberies to
concurrent sentences of two and a half to five. Again, that is also
below mitigated. But there is no weapon used in those cases. He
never even touched the complainant except for maybe brushing
up against her at one point.
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I think that it would be appropriate to do no further penalty
on the other two charges, being the theft, the M3 theft and the
M2 theft in that case.
N.T., 9/27/18, at 9-12 (emphases added).
The trial court sentenced Appellant to a term of incarceration that was
below the Commonwealth’s recommendation of six to twelve years.
Specifically, the trial court sentenced Appellant to serve an aggregate prison
term of five to twelve years. N.T., 9/27/18, at 33. The trial court offered the
following reasoning for its downward departure from the Commonwealth’s
recommendation:
I want to say, first, that [the Assistant District Attorney’s]
sentencing recommendation, which is a downward departure, is
an extremely reasonable one. And the only reason that I’m
reducing the minimum still a little bit further from his
recommendation is because when we first discussed the guilty
plea, the possibility of a guilty plea, and I started to think way
back then about what an appropriate sentence might be in this
case, for whatever reason, I kind of had it in my mind that the
sentence that I imposed and the sentence that you got in your
then open federal matter would likely run at the same time, would
be concurrent.
And after hearing what [the federal court judge] did and
what he said and why he did it, as I just indicated to your Counsel,
I’m not going to run them concurrent. So I’m going to, in effect,
give you that time back by reducing the minimum here a little bit
from [the Assistant District Attorney’s], as I said, very reasonable
suggestion.
Id. at 27-28.
The record establishes that, in presenting the recommended sentence,
the Commonwealth indicated that it considered the fact that Appellant had
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been sentenced in federal court to a term of fifteen months and, therefore,
deviated downward form the mitigated range of the Sentencing Guidelines.
As the Assistant District Attorney stated, the “total sentence, which is
approximately going to be seven years and three months, is an appropriate
sentence for what he did here.” N.T., 9/27/18, at 11. Subsequently, the trial
court reduced the minimum period of incarceration by an additional twelve
months in order to make an additional accommodation for the fact that the
sentence will be served consecutively to the fifteen-month federal sentence.
As such, the trial court imposed a sentence below the Commonwealth’s
already reduced recommended sentence. Accordingly, the record belies
Appellant’s claim that the trial court exceeded the sentence recommended by
the Commonwealth.
Appellant last argues that his guilty plea was unknowingly,
unintelligently, and involuntarily entered. Anders Brief at 14-16. Appellant
asserts that “he entered [the guilty plea] believing that the plea agreement
prohibited the trial court from ordering that the sentence it imposed be served
consecutively to the federal sentence [A]ppellant was then serving.” Id. at
14.
With respect to challenges to the validity of a guilty plea on direct
appeal, this Court has stated the following:
Settled Pennsylvania law makes clear that by entering a
guilty plea, the defendant waives his right to challenge on direct
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appeal all nonjurisdictional defects except the legality of the
sentence and the validity of the plea.
Indeed, a defendant routinely waives a plethora of
constitutional rights by pleading guilty, including the
right to a jury trial by his peers, the right to have the
Commonwealth prove his guilt beyond a reasonable
doubt, and his right to confront any witnesses against
him. Furthermore, a defendant is permitted to waive
fundamental constitutional protections in situations
involving far less protection of the defendant than that
presented herein.
A defendant wishing to challenge the voluntariness of a guilty plea
on direct appeal must either object during the plea colloquy or file
a motion to withdraw the plea within ten days of sentencing.
Failure to employ either measure results in waiver. Historically,
Pennsylvania courts adhere to this waiver principle because it is
for the court which accepted the plea to consider and correct, in
the first instance, any error which may have been committed.
Commonwealth v. Roberts, 237 Pa. Super. 336, 352 A.2d 140,
141 (1975) (holding that common and previously condoned
mistake of attacking guilty plea on direct appeal without first filing
petition to withdraw plea with trial court is procedural error
resulting in waiver; stating, “(t)he swift and orderly administration
of criminal justice requires that lower courts be given the
opportunity to rectify their errors before they are considered on
appeal”; “Strict adherence to this procedure could, indeed,
preclude an otherwise costly, time consuming, and unnecessary
appeal to this court”).
Likewise:
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. Similarly,
challenges to a court’s sentencing discretion must be
raised during sentencing or in a post-sentence motion
in order for this Court to consider granting allowance
of appeal. Moreover, for any claim that was required
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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 or to
attack the discretionary aspects of sentencing 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),
appeal denied, 601 Pa. 696, 972 A.2d 521 (2009).
Further, 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, 609-610 (Pa. Super. 2013) (some
citations and quotation marks omitted).
Our review of the certified record reflects that Appellant did not preserve
his challenge to the voluntariness of his guilty plea by either objecting during
the plea colloquy or filing a timely post-sentence motion seeking to withdraw
the guilty plea.3 Pa.R.Crim.P. 720(B)(1)(a)(i). Accordingly, Appellant waived
any challenge to his guilty plea on direct appeal. Lincoln, 72 A.3d at 609-
610.
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3 We note that, although Appellant filed a post-sentence motion, his claims
therein were limited to requests for reconsideration of his sentence. Post-
Sentence Motion, 10/1/18, at 1-2. Appellant did not seek permission to
withdraw his guilty plea.
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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 judgments of sentence.
Petitions to withdraw as counsel filed at docket numbers 3200 EDA
2018, 3201 EDA 2018, and 3203 EDA 2018 granted. Judgments of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/11/20
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