Com. v. Morgan, K. ( 2024 )

J-S30013-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KIMBERLY ANN MORGAN :
:
Appellant : No. 1732 MDA 2023
Appeal from the Judgment of Sentence Entered November 14, 2023
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0004226-2021
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KIMBERLY A. MORGAN :
:
Appellant : No. 1733 MDA 2023
Appeal from the Judgment of Sentence Entered November 14, 2023
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0001705-2022
BEFORE: PANELLA, P.J.E., SULLIVAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, P.J.E.: FILED: NOVEMBER 15, 2024
Kimberly Ann Morgan appeals from the judgment of sentence entered
on November 14, 2023, after she pled nolo contendere to two counts of arson
at docket CP-40-CR-0004226-2021 and driving under influence of alcohol or
controlled substance (“DUI”), third offense, at docket CP-40-CR-0001705-
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S30013-24
2022.1 Morgan’s counsel has filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), and a petition to withdraw as counsel. We grant
counsel’s petition to withdraw and affirm the judgment of sentence.
Before we address the merits of this appeal, we note with extreme
displeasure the Commonwealth’s failure to file an appellee’s brief. “An
appellee is required to file a brief that at minimum must contain a summary
of argument and the complete argument for appellee.” Commonwealth v.
Pappas, 845 A.2d 829, 835 (Pa. Super. 2004) (internal quotation marks and
citation omitted). In Pappas, the panel referred to the Commonwealth’s
failure to file a proper appellee’s brief as “unacceptable.” Id. We echo that
opinion and remind the Commonwealth of its obligation to file an advocate’s
brief in future appeals.
At docket number CP-40-CR-0004226-2021, Morgan was charged by
criminal information with 12 counts related to two fires, both in Kingston
Township, Pennsylvania. At docket number CP-40-CR-0001705-2022, Morgan
was charged by criminal information with two counts of DUI. On November
14, 2023, Morgan selected a jury for docket CP-40-CR-0004226-2021. Prior
to jury selection, Morgan was advised of a plea offer from the Commonwealth.
Initially, Morgan rejected the plea offer. A jury was selected, but before
opening statements started, Morgan chose to accept the plea offer.
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1 18 Pa.C.S.A. § 3301(a)(1)(i) and 75 Pa.C.S.A. § 3802(c), respectively.
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Both parties signed written plea agreements. At docket CP-40-CR-
0004226-2021, the written plea agreement indicated Morgan was pleading
nolo contendere to two counts of arson for 34 to 68 months’ incarceration. At
docket CP-40-CR-0001705-2022, the written plea agreement indicated
Morgan was pleading guilty to one count of DUI, highest rate of alcohol with
a blood alcohol content (“BAC”) of .379%, third offense, for a concurrent
sentence to that imposed at docket CP-40-CR-0004226-2021.
The Commonwealth set forth the agreement for the court, and the court
then conducted a colloquy of Morgan to ensure her plea was entered
knowingly, voluntarily, and intelligently. See N.T. Jury
Selection/Plea/Sentencing, 11/14/23, at 26-32. The court sentenced Morgan
pursuant to the negotiated plea agreement to an aggregate 34 to 68 months’
incarceration. Morgan filed two timely notices of appeal, and counsel filed a
statement of intent to file an Anders brief.2 As indicated, counsel filed an
Anders brief with this Court.
Because counsel filed an Anders brief, “we must first determine
whether appellate counsel has satisfied all of the requirements that court-
appointed counsel must meet before leave to withdraw may be granted.”
Commonwealth v. Weitzel, 304 A.3d 1219, 1223 (Pa. Super. 2023)
(citations omitted).
____________________________________________
2 We consolidated the cases sua sponte on February 13, 2024.
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To withdraw from representing a convicted defendant on
direct appeal on the basis that the appeal is frivolous, counsel
must: (1) petition the court for leave to withdraw stating that he
has made a conscientious examination of the record and has
determined that the appeal would be frivolous; (2) file a sufficient
Anders brief; and (3) provide a copy of the Anders brief to the
defendant and advise the defendant of h[er] right to retain new
counsel or proceed pro se and raise any additional points that
[s]he deems worth of the court’s attention. An Anders brief must
comply with all the following requirements:
The Anders brief 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.
If 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 wholly frivolous.
Id. at 1223-24 (citations, ellipsis, italics, and brackets omitted).
Counsel filed a petition to withdraw noting he reviewed the record and
determined the appeal would be frivolous. See Application to Withdraw as
Counsel, 5/11/24, at 2. Counsel filed an Anders brief that provides a
summary of the procedural history and facts, including citations to the record;
refers to what may arguably support the appeal; and sets forth counsel’s
conclusion and reasons for concluding the appeal is frivolous. See Anders
Brief, at 3-18. Counsel articulates the relevant facts of record, controlling case
law, and statutes on point. See id. at 12-18. Finally, counsel provided a copy
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of the Anders brief and petition to withdraw as counsel to Morgan and notified
her that she has the right to retain private counsel or to proceed pro se and
raise any additional points she deems worthy of the Court’s attention. See
Application to Withdraw as Counsel, 5/11/24, at Exhibit A. Morgan has not
filed a response. Because counsel complied with the dictates of Anders and
its progeny, we will conduct an independent review of the appeal to determine
if the appeal is wholly frivolous.
Counsel raises one claim: “Did the trial court abuse its discretion where
it accepted the terms of a negotiated plea agreement of the parties and
imposed the exact sentence agreed upon and contained in the plea
agreement?” Anders Brief, at 3. Although counsel presents it as one question,
he addresses the jurisdiction of the court, legality of the sentence,
voluntariness of the plea, and discretionary aspects of the sentence. See id.
at 14, 15. We address each in turn.
“When a defendant enters a guilty plea, the defendant waives the right
to challenge on appeal all non-jurisdictional defects except the legality of the
sentence and the validity of the plea.” Commonwealth v. Luketic, 162 A.3d
1149, 1159 (Pa. Super. 2017) (citation and quotation marks omitted).
Notably, “a plea of nolo contendere is treated the same as a guilty plea.”
Commonwealth v. Jabbie, 200 A.3d 500, 505 (Pa. Super. 2018) (citation
and italics omitted).
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First, counsel raises a claim regarding jurisdiction. “Jurisdiction relates
to the court’s power to hear and decide the controversy presented. All courts
of common pleas have statewide subject matter jurisdiction in cases arising
under the Crimes Code.” Commonwealth v. Gross, 101 A.3d 28, 32 (Pa.
2014).
Morgan was charged with offenses arising under the Crimes Code and
Vehicle Code. Therefore, the Court of Common Pleas of Luzerne County had
jurisdiction to hear the nolo contendere pleas she entered. The first issue, as
counsel points out, is frivolous.
Regarding the legality of the sentence, Morgan pled nolo contendere to
three counts: two counts of arson, graded as felonies of the first degree; and
one count of DUI, third offense, a felony of the third degree.
“[T]he typical illegal sentence is one which exceeds the statutory
maximum.” Commonwealth v. Foster, 17 A.3d 332, 341 (Pa. 2011)
(citation omitted). “Over the years, however, the definition of what constitutes
an illegal sentence has expanded.” Commonwealth v. Moore, 247 A.3d 990,
993 (Pa. 2021). There are four broad categories of illegal sentence challenges.
See Commonwealth v. Prinkey, 277 A.3d 554, 562 (Pa. 2022). “First, a
claim that a sentence was imposed pursuant to a facially unconstitutional
sentencing statute is a legality challenge because, if the claim prevails, the
sentence was imposed under statutory authority that never lawfully existed.”
Id. (citation omitted). “The second category encompasses allegations that a
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sentence was imposed without the fulfillment of statutory preconditions to the
court’s sentencing authority.” Id. (citation omitted). “The third category of
legality challenges encompasses those claims that allege a violation of a
substantive restriction that the Constitution places upon a court’s power to
apply the statutory sentence to the defendant.” Id. “Finally, a sentence is
illegal where the statutory support for the underlying conviction is void ab
initio.” Id. at 563 (italics and citation omitted).
Notably, “[i]n each, the inquiry is whether … the result would be that
the trial court lacked authority to impose the sentence at issue.” Id. If the
trial court did not have the authority to impose the sentence at issue, then
the claim sounds in legality of sentence. See id.
Turning to Morgan’s sentences, we find no illegality. Morgan was
sentenced below the applicable maximum sentences; the statutes upon which
her sentences are based have not been found unconstitutional; and the
statutes are still valid and binding upon the trial court. Specifically, Morgan
was sentenced to a maximum of 68 months, or 5 years and 8 months. The
subsection of arson to which Morgan pled has a maximum potential sentence
of 20 years. See 18 Pa.C.S.A. § 1103(1). The subsection of DUI to which
Morgan pled has a maximum potential sentence of 7 years. See 75 Pa.C.S.A.
§ 3803(b)(4.1)(i); 18 Pa.C.S.A. § 1103(3). Morgan pled guilty to DUI as a
third offense, highest rate of alcohol. See N.T. Jury
Selection/Plea/Sentencing, 11/14/23, at 27-30. As such, Morgan was
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sentenced to a mandatory minimum of one year incarceration under
subsection 3804(c)(3)(i). See 75 Pa.C.S.A. § 3804(c)(3)(i). Sections 3803,
3804, and 1103 are not unconstitutional and are binding upon the trial court.
As such, Morgan’s sentences are legal and a claim challenging the legality of
the sentence is frivolous.
Next, we evaluate whether Morgan entered a knowing, voluntary, and
intelligent plea. “The law does not require that the defendant be pleased with
the outcome of h[er] decision to enter a plea of guilty: All that is required is
that h[er] decision to plead guilty be knowingly, voluntarily, and intelligently
made.” Commonwealth v. Willis, 68 A.3d 997, 1002 (Pa. Super. 2013)
(citation and brackets omitted).
With regard to the voluntariness of a plea, a guilty plea colloquy
must affirmatively demonstrate the defendant understood what
the plea connoted and its consequences. Once the defendant has
entered a guilty plea, it is presumed that [s]he was aware of what
[s]he was doing, and the burden of proving involuntariness is
upon h[er].
Id. (quotation marks and citations omitted).
The Pennsylvania Rules of Criminal Procedure mandate that
pleas be taken in open court, and require the court to conduct an
on-the-record colloquy to ascertain whether a defendant is aware
of h[er] rights and the consequences of h[er] plea. Specifically,
the court must affirmatively demonstrate the defendant
understands: (1) the nature of the charges to which [s]he is
pleading guilty; (2) the factual basis for the plea; (3) h[er] right
to trial by jury; (4) the presumption of innocence; (5) the
permissible ranges of sentences and fines possible; and (6) that
the court is not bound by the terms of the agreement unless the
court accepts the agreement. This Court will evaluate the
adequacy of the plea colloquy and the voluntariness of the
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resulting plea by examining the totality of the circumstances
surrounding the entry of that plea.
Commonwealth v. Kelley, 136 A.3d 1007, 1013 (Pa. Super. 2016) (citations
omitted).
The court conducted a colloquy with Morgan before accepting her plea.
Morgan acknowledged she understood the nature of the charges to which she
pled, the factual basis for the plea, her right to a jury trial, her presumption
of innocence, the permissible ranges of sentences and fines, and that the court
is not bound by the agreement unless it accepts the agreement. See N.T. Jury
Selection/Plea/Sentencing, 11/14/23, at 26-32. Our review of the written plea
agreement and oral colloquy supports the court’s determination Morgan
entered her plea knowingly, voluntarily, and intelligently. This claim is
therefore frivolous.
Finally, we turn to Morgan’s claim regarding the discretionary aspects of
the sentence. Morgan pled nolo contendere as part of a negotiated plea deal.
In exchange for entry of her plea, the Commonwealth agreed to a sentence of
34 to 68 months’ incarceration. The court imposed the agreed-upon sentence.
Our Courts have consistently held when:
the plea agreement contains a negotiated sentence which is
accepted and imposed by the sentencing court, there is no
authority to permit a challenge to the discretionary aspects of that
sentence. If either party to a negotiated plea agreement believed
the other side could, at any time following entry of sentence,
approach the judge and have the sentence unilaterally altered,
neither the Commonwealth nor any defendant would be willing to
enter into such an agreement. Permitting a discretionary appeal
following the entry of a negotiated plea would undermine the
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designs and goals of plea bargaining, and would make a sham of
the negotiated plea process.
Commonwealth v. Morrison, 173 A.3d 286, 290 (Pa. Super. 2017) (citation
and brackets omitted).
Morgan pled nolo contendere for a negotiated sentence. As such, she
cannot now challenge the discretionary aspects of her sentence. Counsel’s
final claim is frivolous.
After our own independent review, we conclude there are no non-
frivolous issues in the certified record. Therefore, we agree with counsel that
the appeal is frivolous and grant his request to withdraw.
Petition to withdraw as counsel granted. Judgment of sentence affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 11/15/2024
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