Com. v. Perry, T. ( 2021 )

J-S13010-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TRAVIS PERRY :
:
Appellant : No. 1683 EDA 2020
Appeal from the Judgment of Sentence Entered August 1, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004631-2014
BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 16, 2021
Appellant, Travis Perry, appeals from the judgment of sentence entered
on August 1, 2017. On this direct appeal, Appellant’s counsel has filed both a
petition for leave to withdraw as counsel and an accompanying brief pursuant
to Anders v. California, 386 U.S. 738 (1967) and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009). We conclude that Appellant’s counsel
has complied with the procedural requirements necessary to withdraw.
Moreover, after independently reviewing the record, we conclude that the
instant appeal is wholly frivolous. We, therefore, grant counsel’s petition for
leave to withdraw and affirm Appellant’s judgment of sentence.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S13010-21
On April 25, 2017, Appellant entered an open guilty plea to aggravated
indecent assault and sexual assault.1 During the hearing, the Commonwealth
recited the factual basis for Appellant’s plea:
[At approximately 11:00 p.m. on March 26, 2017, the
18-year-old victim was] at her mother's [Philadelphia]
house[, in bed,] when [Appellant] came into the bed. He did
digitally penetrate [her] vagina with his finger without her
consent, and [Appellant] also penetrated her vagina with his
penis without her consent. The [victim] did disclose the acts
to her mother . . . as well as [her] aunt. . . .
N.T. Guilty Plea Hearing, 4/25/17, at 10.
The trial court accepted Appellant’s plea and, on August 1, 2017, the
trial court sentenced Appellant to serve a term of five to ten years in prison
for his aggravated indecent assault conviction, followed by ten years of
probation for his sexual assault conviction. N.T. Sentencing Hearing, 8/1/17,
at 15. Appellant did not file a post-sentence motion.
Following the nunc pro tunc reinstatement of Appellant’s direct appellate
rights, Appellant filed a timely notice of appeal. On appeal, Appellant’s counsel
filed a petition for leave to withdraw and counsel accompanied this petition
with an Anders brief.
Before reviewing the merits of this appeal, this Court must first
determine whether appointed counsel has fulfilled the necessary procedural
requirements for withdrawing as counsel. Commonwealth v. Miller, 715
A.2d 1203, 1207 (Pa. Super. 1998).
____________________________________________
1 18 Pa.C.S.A. §§ 3125(a)(1) and 3124.1, respectively.
-2-
J-S13010-21
To withdraw under Anders, court-appointed counsel must satisfy
certain technical requirements. First, counsel must “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.”
Miller, 715 A.2d at 1207. Second, counsel must file an Anders brief, in which
counsel:
(1) provide[s] a summary of the procedural history and facts,
with citations to the record; (2) refer[s] to anything in the
record that counsel believes arguably supports the appeal;
(3) set[s] forth counsel’s conclusion that the appeal is
frivolous; and (4) state[s] 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.
Finally, counsel must furnish a copy of the Anders brief to his or her
client and advise the client “of [the client’s] right to retain new counsel,
proceed pro se or raise any additional points worthy of this Court’s attention.”
Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007).
If counsel meets all of the above obligations, “it then becomes the
responsibility of the reviewing court to make a full examination of the
proceedings and make an independent judgment to decide whether the appeal
is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5; see also
Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en
banc) (holding that the Anders procedure requires this Court to review “the
-3-
J-S13010-21
entire record with consideration first of the issues raised by counsel. . . .
[T]his review does not require this Court to act as counsel or otherwise
advocate on behalf of a party. Rather, it requires us only to conduct a review
of the record to ascertain if[,] on its face, there are non-frivolous issues that
counsel, intentionally or not, missed or misstated. We need not analyze those
issues of arguable merit; just identify them, deny the motion to withdraw, and
order counsel to analyze them”). It is only when all of the procedural and
substantive requirements are satisfied that counsel will be permitted to
withdraw.
In the case at bar, counsel complied with all of the above procedural
obligations. We must, therefore, review the entire record and analyze whether
this appeal is, in fact, wholly frivolous. Our analysis begins with the claim
raised in the Anders brief:
Did not the lower court err and/or abuse its discretion in
accepting Appellant’s guilty plea and sentencing him to an
aggregate five to ten years of incarceration to be followed by
ten years of reporting probation?
Appellant’s Brief at 3.
Within his brief, Appellant sets forth three subclaims that arguably
support his appeal: 1) the trial court did not have jurisdiction over his case;
2) his sentence is illegal; 3) and, his plea was not knowingly and voluntarily
tendered. See id. at 19; see also Commonwealth v. Stradley, 50 A.3d
769, 771 (Pa. Super. 2012) (“when a defendant enters a guilty plea, he or she
waives all defects and defenses except those concerning the validity of the
-4-
J-S13010-21
plea, the jurisdiction of the trial court, and the legality of the sentence
imposed”). These claims are frivolous.
First, Appellant claims that the trial court did not have jurisdiction over
his case. Appellant’s Brief at 19. However, the trial court had jurisdiction
over Appellant’s criminal case, as the offenses occurred in Philadelphia,
Appellant received formal notice of the crimes charged, and the Court of
Common Pleas of Philadelphia County possesses “statewide subject matter
jurisdiction in cases arising under the Crimes Code.” Commonwealth v.
Jones, 929 A.2d 205, 210 (Pa. 2007) (noting there are “two requirements for
subject matter jurisdiction as it relates to criminal defendants: the
competency of the court to hear the case, and the provision of formal notice
to the defendant of the crimes charged”) and 210 (“the courts of common
pleas have statewide jurisdiction in all cases arising under the Crimes Code”).
Therefore, Appellant’s claim is frivolous.
Second, Appellant claims that his sentence is illegal. Appellant’s Brief
at 19. This claim is frivolous because the trial court sentenced Appellant to a
term of five to ten years in prison for his aggravated indecent assault
conviction and a term of ten years of probation for his sexual assault
conviction. As both crimes are felonies of the second degree, both of
Appellant’s convictions carried a statutory maximum penalty of ten years.
See 18 Pa.C.S.A. § 3125(c)(1) (defining Appellant’s aggravated indecent
assault conviction as a felony of the second degree); 18 Pa.C.S.A. § 3124.1
(defining sexual assault as a felony of the second degree); 18 Pa.C.S.A.
-5-
J-S13010-21
§ 1103(2) (declaring that the statutory maximum penalty for a felony of the
second degree is ten years). The trial court’s sentence was within the
statutory limit. Therefore, Appellant’s legality of sentencing claim is frivolous.
Appellant’s final claim on appeal contends that he did not knowingly and
voluntarily tender his guilty plea. See Appellant’s Brief at 19. This claim is
waived, as Appellant did not move to withdraw his plea. Commonwealth v.
Tareila, 895 A.2d 1266, 1270 n. 3 (Pa. Super. 2006) (“[i]n order to preserve
an issue related to the guilty plea, an appellant must either object at the
sentence colloquy or otherwise raise the issue at the sentencing hearing or
through a post-sentence motion”) (quotation marks, citations, and corrections
omitted); Pa.R.A.P. 302(a) (“[i]ssues not raised in the lower court are waived
and cannot be raised for the first time on appeal”). Further, since the claim
on appeal is waived, the claim is frivolous under Anders. Commonwealth v.
Tukhi, 149 A.3d 881, 888-889 (Pa. Super. 2016) (holding that, under
Anders, “[a]n issue that is waived is frivolous”); Commonwealth v.
Kalichak, 943 A.3d 285, 291 (Pa. Super. 2008) (holding: “this issue has been
waived. Having been waived, pursuing this matter on direct appeal is
frivolous”).
We have independently considered the issues raised within Appellant's
brief and we have determined that the claims are frivolous. In addition, after
an independent review of the entire record, we see nothing that might
arguably support this appeal. The appeal is therefore wholly frivolous.
-6-
J-S13010-21
Accordingly, we affirm Appellant's judgment of sentence and grant counsel's
petition for leave to withdraw.
Petition for leave to withdraw appearance granted. Judgment of
sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/16/2021
-7-