Com. v. Caruano, R. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
RALPH J. CARUANO, JR. :
:
Appellant : No. 117 MDA 2021
Appeal from the Judgment of Sentence Entered January 7, 2021
In the Court of Common Pleas of Schuylkill County Criminal Division at
No(s): CP-54-CR-0002268-2019
BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED JUNE 25, 2021
Ralph J. Caruano, Jr. (Caruano) appeals from the judgment of sentence
entered in the Court of Common Pleas of Schuylkill County (trial court)
following his entry of a negotiated guilty plea to two counts of possession with
intent to deliver a controlled substance (PWID), two counts of possession of a
controlled substance and one count of possession of drug paraphernalia.1 He
appeals his sentence because he is “the victim of injustice by the District
Attorney’s Office because they shut me out of their proffer program in such a
way that I was not able to receive a lesser sentence.” (Anders’ Brief, at 10).
Counsel has filed a brief under Anders v. California, 386 U.S. 738 (1967),
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 35 P.S. §§ 780-113(a)(30), (a)(16) and (a)(32).
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and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), and a petition
for leave to withdraw as counsel. We grant the petition to withdraw and affirm
the judgment of sentence.
I.
A.
The relevant facts and procedural history of this case are as follows. On
November 13, 2019, while Caruano was under State Parole Supervision,
Parole Agent Chris Huben found 20 packets of heroin and fentanyl at his
residence during a routine search. Pottsville Bureau of Police responded to
the home and issued Miranda2 warnings to Caruano. Caruano gave police
consent to search the property and advised that additional heroin was in a
front bedroom. Police recovered 36.89 grams of fentanyl and 0.6 grams of a
heroin/fentanyl mix from the residence. Caruano admitted that a large
amount of currency stored under a dresser came from the sale of narcotics
and he showed police the glassine packets he used for packaging.
At the January 7, 2021 guilty plea hearing, Caruano initially expressed
dissatisfaction with his plea agreement with the Commonwealth and asserted
that he thought he had withdrawn it. The trial court and defense counsel
addressed his concern during the following exchange:
The Court: So you don’t want to enter a plea? You want to go to
trial?
____________________________________________
2 Miranda v. Arizona, 384 U.S. 436 (1966).
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[Caruano]: No, I don’t want to go to trial in the case.
The Court: Well, you got to do one or the other. If you’re not
going to plead guilty, the Commonwealth still wants to prosecute
the case.
[Caruano]: Yes, I understand that, Your Honor. But I thought I
was getting a proffer in this case.
The Court: Getting a proffer?
[Caruano]: Yes. I had signed─ I signed up for three of them.
The Court: There’s a plea agreement that you signed that was
presented to me for you to get 4 to 8 years in a State Correctional
Facility.
[Caruano]: Yes. But after that, I put in two petitions after that
then.
[Defense Counsel]: I’ve explained to you numerous times
that the proffers that you gave have been considered and
that’s what is the basis for this plea and that there is
nothing further we can do based on circumstances; that the
proffers you gave are being considered; you were given a
break on the sentence because of those proffers that you
gave; and this is as far as it goes. So now it’s either this plea
or trial. . . . [The Commonwealth has] indicated that this is the
offer and they’re not changing it and they’re not interested in any
further cooperation at this time and this is where we are.
[Caruano]: I don’t know. I don’t know what to say.
[Defense Counsel]: But while the Judge and the Assistant District
Attorney are here, I will tell you that they are not going to agree
to a bail reduction and they are not interested in any further
cooperation. So those things aren’t going to happen at this point.
And if you don’t take the plea today, the offer is no longer a viable
plea offer.
[Caruano]: You mean it would be revoked then?
[Defense Counsel]: Correct.
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[Caruano]: Okay. I have to take it. It’s the only thing I can do.
The Court: Well, it’s not the only thing you can do. You can go
to trial.
[Caruano]: Yes, but I would be found guilty.
The Court: So you’re telling me that this is the─your best option?
You’re accepting it?
[Caruano]: Yeah, I believe I would have to then.
The Court: . . . In the process of completing [the guilty plea]
petition, did you have enough time to discuss with your attorney
the questions that you were answering, any possible defenses you
might have, and the consequences of entering a plea of guilty?
Did you have enough time to do that?
[Caruano]: Yes.
The Court: Do you have any questions that have not yet been
answered to your satisfaction by your attorney?
[Caruano]: No. No, I have none.
* * *
The Court: . . . The agreement that I have calls for you to get a
sentence of 4 to 8 years in a State Correctional Facility with you
being RRRI eligible. Is that your understanding of the agreement?
[Caruano]: Yes, it is.
The Court: Do you have any questions about anything I’ve gone
over?
[Caruano]: No, Your Honor.
The Court: Is it still your intent to enter a plea of guilty?
[Caruano]: Yes.
(N.T. Guilty Plea, 1/07/21, at 3-8) (emphases added).
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In his written plea agreement, Caruano affirmed that no one had “made
any promises to [him] . . . or said anything that would induce [him] or put
pressure on [him] to plead guilty[.]” (Written Guilty Plea, 12/16/20, at 4).
Caruano averred that his “plea of guilty [was] being given freely and
voluntarily,” that he fully understood all of the agreement’s terms and that he
wanted to enter the plea. (Id. at 5-6).
B.
The trial court accepted the guilty plea as voluntary and sentenced
Caruano to four to eight years’ imprisonment. This timely appeal followed.
Caruano and the trial court complied with Rule 1925. See Pa.R.A.P. 1925(a)-
(b).
The trial court acknowledged Caruano’s dissatisfaction with his plea
agreement because he wanted to provide additional proffers to the
Commonwealth in exchange for a more favorable sentence. However, the
court found that the guilty plea was valid because Caruano chose to enter it
after he was made fully aware of the Commonwealth’s unwillingness to engage
in further negotiation with him or to offer him a more favorable deal. (See
Trial Court Opinion, 2/11/21, at 1).
On April 8, 2021, Caruano’s counsel filed an Anders brief in which she
avers the appeal is frivolous and requests permission from this Court to
withdraw from representation. Caruano did not respond to counsel’s Anders
brief.
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II.
A.
We first address counsel’s petition to withdraw from representation,
which must satisfy both procedural and substantive requirements.
Procedurally, 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 has the right to retain
private counsel or raise additional arguments that he deems worthy of the
court’s attention. See Commonwealth v. Cartrette, 83 A.3d 1030, 1032
(Pa. Super. 2013).
Counsel has complied with these procedural requirements. In the
motion to withdraw, counsel states that she has reviewed the record and
concluded that the appeal is frivolous. (See Petition to Withdraw as Counsel,
4/08/21, at 1). Counsel certifies that she sent a copy of the Anders brief and
petition to withdraw to Caruano. Additionally, counsel’s letter advises Caruano
of his right to retain private counsel or raise pro se any additional arguments
he would like the Court to consider. (See Letter from Andrea L. Thompson,
Esq. to Caruano, 4/05/21).
Regarding the substantive elements, the brief accompanying counsel’s
petition to withdraw must: 1) summarize the procedural history and facts of
record; 2) refer to anything in the record that counsel believes arguably
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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. See Santiago, supra at 361. Counsel’s Anders brief summarizes
the factual and procedural history of this case, identifies the potential issue
challenging the validity of Caruano’s guilty plea, and explains the basis for her
conclusion that an appeal would be frivolous. Because counsel has complied
with these requirements, we “make a full examination of the proceedings and
make an independent judgment to decide whether the appeal is in fact wholly
frivolous.” Id. at 355 n.5.
B.
As noted, the Anders brief challenges the validity of Caruano’s guilty
plea. Caruano contends that he was unfairly prevented from participating in
the proffer process and that he should have been permitted to cooperate fully
with the Commonwealth to receive a lesser sentence.
“To be valid a guilty plea must be voluntary, knowing and intelligent.”
Commonwealth v. Diehl, 61 A.3d 265, 268 (Pa. Super. 2013), appeal
denied, 77 A.3d 1258 (Pa. 2013) (citation omitted). The guilty plea colloquy
must affirmatively show that the defendant understood what the plea entailed
and its consequences, and this determination must be made by examining the
totality of the circumstances. See Commonwealth v. Davis, 191 A.3d 883,
889–90 (Pa. Super. 2018), appeal denied, 200 A.3d 2 (Pa. 2019). Therefore,
even if there is a “defect in the guilty plea colloquy, a plea of guilty will not be
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deemed invalid 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.”
Id. (citation omitted).
The record reflects that Caruano was fully aware of the Commonwealth’s
rejection of his offer to provide additional proffers before he entered the plea.
The trial court’s extensive colloquy regarding the Commonwealth’s refusal to
entertain Caruano’s request to cooperate further in regard to any proffers
demonstrates that he entered a voluntary, knowing and intelligent plea.
Defense counsel made clear that his cooperation with the Commonwealth had
already been taken into consideration and that it formed the basis for his plea
agreement. At the time Caruano entered the plea, he was aware of the length
of the negotiated four to eight year sentence and with full knowledge of the
consequences he chose to go forward. Caruano unequivocally recognized at
the hearing that the plea was his best option under the circumstances of this
case and expressly stated his belief that he would be found guilty if he went
to trial. Caruano repeatedly indicated that he did not want to proceed to trial
in this case.
Accordingly because our independent review of the record does not
reveal any non-frivolous issues for our consideration and the reasons set forth
in this memorandum, we affirm the judgment of sentence and grant counsel’s
application to withdraw.
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Judgment of sentence affirmed. Counsel’s application to withdraw
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/25/2021
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