Com. v. Bowman, F. ( 2020 )

J-S29023-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FREDDIE BOWMAN :
:
Appellant : No. 2198 EDA 2019
Appeal from the Judgment of Sentence Entered February 27, 2019
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0002234-2018
BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY NICHOLS, J.: FILED NOVEMBER 09, 2020
Appellant Freddie Bowman appeals from the judgment of sentence1
imposed after he pled nolo contendere to one count of possession with intent
to deliver cocaine (PWID).2 Appellant’s present counsel (Counsel) has filed an
Anders/Santiago3 brief seeking leave to withdraw. We affirm and grant
Counsel leave to withdraw.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 Appellant captioned his notice of appeal as an appeal from the order denying
his timely post-sentence motion. However, the appeal properly lies from
judgment of sentence. See Commonwealth v. Chamberlain, 658 A.2d 395,
397 (Pa. Super. 1995). We have amended the caption accordingly.
2 See 35 P.S. § 780-113(a)(30).
3Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
J-S29023-20
The factual history of this appeal is as follows:
[On] May 12, 2018, [at] approximately 9:10 p.m. at the Madison
Inn[,] which is located at 1325 Turner Street in Allentown, Lehigh
County[,] the Allentown Police were conducting a drug
investigation.[4] Detective [Damien] Lobach made contact with
[Appellant] inside of the Madison Inn and found that [Appellant]
was in possession of a quantity of crack cocaine inside of his
sweatshirt. [Appellant] was then later detained, placed in the rear
of Officer [Bryan] Guzley’s patrol vehicle, [and] transported to
headquarters. When [Appellant] was removed from the vehicle,
a subsequent search of the passenger compartment revealed an
additional quantity of cocaine on the floor. The aggregate amount
of the cocaine was approximately 5.21 grams . . . . [The
contraband] was submitted to the lab and confirmed positive for
cocaine.
N.T. Plea & Sentencing, 2/27/19, at 14-15. Appellant was charged with two
counts of PWID and two counts of possession of cocaine.
The trial court summarized the procedural history of this case as follows:
On August 13, 2018, [Appellant’s plea counsel5] filed “Omnibus
Pre-Trial Motions,” including a “Motion to Suppress Search and
Seizure of Defendant’s Person.” Throughout the proceedings,
[A]ppellant, although represented by [plea] counsel, filed his own
pretrial motions. His attempts at hybrid representation were
rebuffed. Hearings were held on the suppression motion on
August 29, 2018, October 16, 2018, and November 20, 2018.
Th[e trial c]ourt denied the suppression motion with an opinion
filed on January 24, 2019.
____________________________________________
4The record indicates that a confidential informant purchased cocaine from
Appellant shortly before the police entered the Madison Inn. See Trial Ct.
Op., 8/30/19, at 2; see also Aff. of Probable Cause, 5/12/18, at 1.
5Appellant was represented by separate counsel at the plea hearing. As noted
below, the trial court appointed Counsel to represent Appellant at the hearing
held on Appellant’s post-sentence motion to withdraw his plea.
-2-
J-S29023-20
[A]ppellant’s trial was scheduled to commence on February 27,
2019, but on that date [A]ppellant entered a nolo contendere plea
to one (1) count of [PWID]. Th[e trial c]ourt was alerted to
[A]ppellant’s decision to enter a plea the day prior to the plea. As
a result, jurors were not summoned for trial. Although he
eventually entered a plea, prior to actually doing so, [A]ppellant
vacillated on his decision. In response to [A]ppellant’s
indecisiveness, th[e trial court] selected a new date for trial, but
advised the parties of future limitations on any plea agreement.[6]
[A]ppellant then requested additional time to speak with his [plea]
counsel. A recess was taken, and after court reconvened,
[A]ppellant entered his plea to [PWID].[7] The terms of the plea
limited his minimum sentence to twelve (12) months[’
imprisonment].
A full oral colloquy was conducted with [A]ppellant. [A]ppellant
also completed a written colloquy, which was reviewed with him
as part of the oral colloquy. Following [A]ppellant’s plea, he
waived a presentence report and a sentencing hearing was held.
[A]ppellant had a prior record score of five (5), including a felony
drug conviction, and was on county supervision when he
committed these offenses.[8] At the conclusion of the sentencing
hearing, [A]ppellant was sentenced to not less than twelve (12)
months nor more than thirty-six (36) months in a state
correctional institution. He was also made RRRI9 eligible, and his
RRRI minimum was nine (9) months. Under the terms of the plea
agreement, as presented, the minimum sentence [A]ppellant
received was the bottom of the standard range of the Sentencing
Guidelines.
On March 7, 2019, [plea] counsel for [A]ppellant, acting upon
[A]ppellant’s demand, filed a “Motion to Withdraw Nolo
____________________________________________
6The trial court indicated that it would only accept an open plea before the
new trial date. N.T. Plea & Sentencing at 4.
7 Specifically, Appellant pled nolo contendere to Count 2 of the information for
the cocaine that Detective Lobach recovered from Appellant. See id. at 7.
8We address Appellant’s appeal from the violation of parole proceeding in the
appeal listed at J-S29024-20.
9The Recidivism Risk Reduction Incentive program. See 61 Pa.C.S. §§ 4501-
4512.
-3-
J-S29023-20
Contendere Plea.” Once again, [A]ppellant filed a series of
documents related to pretrial issues which were denied. Due to
[A]ppellant’s stormy relationship with his [plea] counsel, including
a complaint to the Disciplinary Board, [Counsel] was appointed to
represent [A]ppellant.
A hearing on the motion to withdraw [A]ppellant’s plea was held
on July 10, 2019. [At the hearing, Appellant testified that he did
not want to “take the plea” and he felt like he “was forced to by
the judge.” N.T. Mot. to Withdraw Nolo Contendere Plea
(Withdrawal H’rg), 7/10/19, at 8. A]ppellant was unable to
establish any manifest injustice related to his plea, and his motion
was denied. A Notice of Appeal was filed on August 5, 2019, and
th[e trial c]ourt directed [A]ppellant to comply with Pa.R.A.P.
1925(b). Counsel did so, and filed a “Concise Statement of
Reasons Complained of on Appeal,” alleging it was error not to
permit [A]ppellant to withdraw his plea.
Trial Ct. Op., 8/30/19, at 2-3.
The trial court filed a responsive Rule 1925(a) opinion concluding that
“the denial of [A]ppellant’s post-sentence motion to withdraw his plea should
be affirmed.” Id. at 7. The trial court noted that it engaged in a thorough
colloquy with Appellant that covered “all of the required areas, including the
terms and conditions of his plea agreement.” Id. at 6. The trial court
continued:
[A]ppellant had every right not to enter a plea, and when he
initially decided not to do so, he was provided a new trial date. It
was his decision to consult further with his counsel, and after
doing so, returned to the courtroom and entered his plea
knowingly, intelligently and voluntarily. During the colloquy [on
the record], [A]ppellant was asked if he was forced to enter his
plea and he responded “no.” His written colloquy reflects the
same answer.
Id. (footnotes omitted). The trial court noted that Appellant “was not
unsophisticated to the criminal justice system” and characterized Appellant’s
-4-
J-S29023-20
claim that he felt forced by the trial court to enter a plea to be “illusory,”
manipulative, and “fabricated.” Id. (footnote omitted). The trial court
concluded that Appellant “failed to demonstrate that prejudice on the order of
manifest injustice would result if he was not permitted to withdraw his plea.”
Id. (footnote omitted).
Counsel has filed an Anders/Santiago brief asserting that the instant
appeal is frivolous. Anders/Santiago Brief at 8. According to Counsel,
Appellant intends to appeal the denial of his motion to withdraw his plea
because “Appellant believes it was an improper ruling.” Id. at 9-10. Appellant
has not filed a response either pro se or through new counsel.
“When faced with a purported Anders brief, this Court may not review
the merits of any possible underlying issues without first examining counsel’s
request to withdraw.” Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa.
Super. 2008) (citation omitted). Counsel must comply with the technical
requirements for petitioning to withdraw by (1) filing a petition for leave to
withdraw stating that after making a conscientious examination of the record,
counsel has determined that the appeal would be frivolous; (2) providing a
copy of the brief to the appellant; and (3) advising the appellant that he has
the right to retain private counsel, proceed pro se, or raise additional
arguments that the appellant considers worthy of the court’s attention. See
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en
banc).
-5-
J-S29023-20
Additionally, counsel must file a brief that meets the requirements
established by the Pennsylvania Supreme Court in Santiago, namely:
(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, 978 A.2d at 361.
“Once counsel has satisfied the above requirements, it is then this
Court’s duty to conduct its own review of the trial court’s proceedings and
render an independent judgment as to whether the appeal is, in fact, wholly
frivolous.” Goodwin, 928 A.2d at 291 (citation omitted). This includes “an
independent review of the record to discern if there are any additional, non-
frivolous issues overlooked by counsel.” Commonwealth v. Flowers, 113
A.3d 1246, 1250 (Pa. Super. 2015) (citation and footnote omitted); accord
Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en
banc).
Here, Counsel has adequately complied with the procedures for seeking
withdrawal. Although Counsel has not separately filed a petition to withdraw,
-6-
J-S29023-20
he included a copy of a petition in his Anders/Santiago brief.10 Counsel
indicates that he has thoroughly reviewed the record and found no meritorious
issues for appeal. Counsel’s brief did not include a copy of his letter advising
Appellant of his of his right to proceed pro se or with new private counsel.
However, Counsel has complied with this Court’s order to file copies of the
letter. In his letter to Appellant and his brief, Counsel has asserted that he
provided copies of his brief to Appellant. See Resp. to Order, 3/19/20;
Anders/Santiago Brief at 12-13. Moreover, Counsel’s brief substantially
complies with the requirements of Santiago. Therefore, we proceed to
consider Counsel’s assessment that the appeal is frivolous.
As noted above, Counsel identifies Appellant’s intended challenge to the
denial of his post-sentence motion to withdraw his nolo contendere plea.
Anders/Santiago Brief at 8. Counsel emphasizes that “the [t]rial court went
through the standard Lehigh County [g]uilty plea [c]olloquy with . . . Appellant
on the record.” Id. at 11. Counsel adds that Appellant “swore to tell the
truth.” Id. Counsel continues:
Appellant stated that he understood the plea agreement, the
charges he was pleading to, that he was doing this voluntarily of
his own freewill, no one made any threats or promises to him, and
he did not have any drugs or alcohol prior to him entering his nolo
____________________________________________
10Although this Court may accept a petition to withdraw included within an
Anders/Santiago brief, we remind Counsel that “the more desirable practice
would be to submit a separate withdrawal request to the court . . . .”
Commonwealth v. Fischetti, 669 A.2d 399, 400 (Pa. Super. 1995) (citation
omitted and quotation marks omitted).
-7-
J-S29023-20
contendere [plea] that would [a]ffect his ability to understand the
proceedings.
Id. Counsel further notes that “Appellant was told prior to him entering his
plea what the [trial court] was going to sentence him to.” Id. Counsel
concludes that “Appellant [cannot] show manifest injustice” to justify a post-
sentence withdrawal of his plea. Id.This Court has explained that
the decision to allow a defendant to withdraw a plea post-sentence
is a matter that rests within the sound discretion of the trial court.
Moreover, a request to withdraw a guilty plea after sentencing is
subject to higher scrutiny since courts strive to discourage the
entry of guilty pleas as sentence-testing devices. Therefore, in
order to withdraw a guilty plea after the imposition of sentence, a
defendant must make a showing of prejudice which resulted in a
manifest injustice. A defendant meets this burden only if he can
demonstrate that his guilty plea was entered involuntarily,
unknowingly, or unintelligently.
Once a defendant enters a guilty plea, it is presumed that he was
aware of what he was doing. Consequently, defendants are bound
by statements they make during their guilty plea colloquies and
may not successfully assert any claims that contradict those
statements.
Commonwealth v. Culsoir, 209 A.3d 433, 437 (Pa. Super. 2019) (citations
omitted and formatting altered).
Although not constitutionally mandated, a proper plea colloquy ensures
that a defendant’s plea is truly knowing and voluntary. Commonwealth v.
Maddox, 300 A.2d 503, 504 (Pa. 1973). “A valid plea colloquy must delve
into six areas: 1) the nature of the charges, 2) the factual basis of the plea,
3) the right to a jury trial, 4) the presumption of innocence, 5) the sentencing
ranges, and 6) the plea court’s power to deviate from any recommended
-8-
J-S29023-20
sentence.” Commonwealth v. Reid, 117 A.3d 777, 782 (Pa. Super. 2015)
(citations and quotation marks omitted); see also Pa.R.Crim.P. 590, cmt.
(setting forth a non-exhaustive list of questions a trial judge should ask before
accepting a plea).
Further, nothing in Rule 590 “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, 1212-13 (Pa. Super. 2008) (citation omitted). “In
determining whether a plea is valid, the court must examine the totality of
circumstances surrounding the 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.” Commonwealth v. Jabbie, 200
A.3d 500, 505 (Pa. Super. 2018) (citation omitted).
Instantly, the record supports the trial court’s conclusions that Appellant
entered his plea knowingly, intelligently, and voluntarily and that Appellant
failed to establish manifest injustice. See Trial Ct. Op. at 6. The
Commonwealth summarized the nature of the charge and the factual basis of
Appellant’s plea on the record. See N.T. Plea & Sentencing at 7, 14-15.
Appellant also executed a written plea colloquy that indicated Appellant
understood the charge and the elements of the offense. See Written Colloquy,
2/27/19, at ¶¶ 10-11. Both the written and oral colloquies comprehensively
recited Appellant’s right to a jury trial, including the presumption of innocence.
-9-
J-S29023-20
See id. at ¶¶ 12-23; N.T. Plea & Sentencing at 17-18. The trial court further
explained the maximum sentencing range and even informed Appellant of the
actual sentence it would impose if Appellant entered his plea. See N.T. Plea
& Sentencing at 10. Lastly, when the trial court asked Appellant if he was
pleading of his own free will and voluntarily, Appellant responded, “Yes,” and
when asked if he was forced to enter his plea, Appellant responded, “No.” Id.
at 18-19.
To the extent Appellant asserted that he felt pressured by the trial court,
the trial court thoroughly examined the totality of the circumstances
surrounding the entry of Appellant’s plea. See Trial Ct. Op. at 6. As noted
by the trial court, when Appellant initially balked at entering a plea, the trial
court began scheduling a new trial date. See id.; N.T. Plea & Sentencing at
2-5. After the trial court noted that that any delay would be attributable to
Appellant for the purpose of a prompt trial claim and that the court would only
accept an open plea before the new trial, Appellant then stated that he needed
more time to talk to plea counsel. N.T. Plea & Sentencing at 4-5. The trial
court then recessed for a ten-minute break to schedule the trial date. Id. at
6. When the hearing reconvened, the Commonwealth announced that
Appellant intended to plead guilty, and the trial court then conducted the
above discussed colloquy with Appellant and thereafter, Appellant entered his
nolo contendere plea. Id. at 7-20.
- 10 -
J-S29023-20
Based on the foregoing, we agree with Counsel’s assessment that
Appellant’s intended argument was frivolous. The trial court considered the
record evidence, including the colloquies, and properly determined that
Appellant failed to demonstrate manifest injustice warranting a post-sentence
withdrawal of his nolo contendere plea. Furthermore, our review reveals no
other non-frivolous issues in this appeal. See Flowers, 113 A.3d at 1250.
Accordingly, we affirm the judgment of sentence and grant Counsel’s request
to withdraw.
Judgment of sentence affirmed. Counsel is granted leave to withdraw.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/9/20
- 11 -