Com. v. Richardson, M. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARK RICHARDSON
Appellant No. 431 EDA 2015
Appeal from the Judgment of Sentence January 16, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004815-2013
BEFORE: PANELLA, J., SOLANO, J., and FITZGERALD, J.*
MEMORANDUM BY PANELLA, J. FILED APRIL 18, 2017
Appellant, Mark Richardson, appeals from the judgment of sentence
entered after he pled guilty to charges of third-degree murder, criminal
conspiracy, and robbery. Additionally, Richardson’s appointed counsel, John
Belli, Esquire, has filed a petition to withdraw as counsel pursuant to Anders
v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009). We affirm Richardson’s judgment of sentence and
grant counsel’s petition to withdraw.
Attorney Belli has substantially complied with the mandated procedure
for withdrawing as counsel.1 See id., at 361 (articulating Anders
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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requirements); Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super.
2010) (providing that counsel must inform client by letter of rights to
proceed once counsel moves to withdraw and append a copy of the letter to
the petition). Richardson has not filed a response to counsel’s petition to
withdraw.
In his Anders brief, counsel discusses two possible issues for appeal.
First, he notes that Richardson believes that the trial court abused its
discretion in imposing sentence. “A challenge to the discretionary aspects of
a sentence must be considered a petition for permission to appeal, as the
right to pursue such a claim is not absolute.” Commonwealth v. McAfee,
849 A.2d 270, 274 (Pa. Super. 2004) (citation omitted).
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
[W]e conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence,
see Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
question that the sentence appealed from is not appropriate
under the Sentencing Code, 42. Pa.C.S.A. § 9781(b).
_______________________
(Footnote Continued)
1
Attorney Belli failed to include a Pa.R.A.P. 2119(f) statement as a preface
to his discussion of Richardson’s claim that the trial court abused its
discretion in imposing sentence. See Commonwealth v. Wilson, 578 A.2d
523, 525 (Pa. Super. 1990). However, this failure does not impede our
review of the issue raised in the Anders brief. See id.
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Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (internal
citation omitted).
Here, Attorney Belli notes, and our review of the certified record and
sentencing transcript confirms, that Richardson did not orally object to the
sentence imposed or file a post-sentence motion. He therefore has waived
any argument he may have against the discretionary aspects of the sentence
imposed. See Pa.R.A.P. 302(a). Richardson’s first issue on appeal is
therefore meritless.
Next, Attorney Belli discusses the voluntariness of Richardson’s plea.
Richardson believes that his guilty plea was not knowing and voluntary, as
he claims that he was unaware of the elements of the crimes of robbery and
criminal conspiracy. Furthermore, he complains that the trial court’s colloquy
was inadequate, as it failed to accurately apprise him of his appellate rights
and his right to a jury trial.
Initially, we note that Richardson did not file any motion, pre- or post-
sentence, with the trial court seeking to withdraw his guilty plea. Thus, the
issue is waived on appeal. See id. Attorney Belli asserts that since the trial
court did not inform Richardson of his right to file a motion to withdraw his
guilty plea, the issue is not waived, citing to Commonwealth v. Patterson,
940 A.2d 493, 498-499 (Pa. Super. 2007). However, Patterson involved a
trial court failing to inform a defendant of the appropriate deadlines required
to file an appeal. See id.
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Here, in contrast, there is no claim that the trial court failed to inform
Richardson of the appropriate deadlines. In fact, our review of the record
reveals that plea counsel informed Richardson that he had ten days to file a
post-sentence motion. See N.T., Guilty Plea, 2/24/14, at 34-35. Patterson
is therefore not directly on point.
Furthermore, we conclude that the reasoning underlying the
Patterson decision does not extend to these circumstances. The Patterson
panel reviewed the defendant’s untimely appeal on the merits, as it
concluded that the failure to inform the defendant of the appropriate
deadlines constituted a breakdown in the operations of the court. Here,
Richardson was informed of the appropriate deadlines, and of his right to file
a post-sentence motion. That he was not explicitly informed of every issue
he could raise in such a motion does not constitute a breakdown in the
court’s operation. At most, it could qualify for an allegation of post-sentence
ineffectiveness on the part of counsel. Such a claim, if Richardson were to
make it, would have to await collateral review. See Commonwealth v.
Holmes, 79 A.3d 562, 576 (Pa. 2013). Thus, we agree with counsel that
Richardson’s second issue on appeal is entirely meritless.
After examining the issues contained in the Anders brief and
undertaking our independent review of the record, we concur with counsel’s
assessment that the appeal is wholly frivolous.
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Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/18/2017
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