Com. v. Wright, C.

J-S28007-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTOPHER WRIGHT :
:
Appellant : No. 219 EDA 2021
Appeal from the Judgment of Sentence Entered December 10, 2020
In the Court of Common Pleas of Wayne County Criminal Division at
No(s): CP-64-CR-0000205-2019
BEFORE: BOWES, J., DUBOW, J., and PELLEGRINI, J.*
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 14, 2022
Christopher Wright appeals from the aggregate judgment of sentence of
eighteen to seventy-two months of imprisonment imposed after he pled guilty
to strangulation, terroristic threats, simple assault, and resisting arrest.
Appellant’s counsel sought leave from this Court to withdraw as counsel
pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), which we denied
because the certified record did not contain a necessary hearing transcript.
See Commonwealth v. Wright, 2021 WL 5104885 (Pa.Super. Nov. 2, 2021)
(non-precedential decision). Following supplementation of the certified
record, counsel has filed a new withdrawal request and Anders brief. Upon
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S28007-21
review, we grant the motion of John J. Martin, II, Esquire to withdraw and
affirm Appellant’s judgment of sentence.
As we observed in our prior memorandum, the factual basis for
Appellant’s guilty plea is as follows. Appellant and Jill Harvey were together
at a local bar on June 4, 2019. Ms. Harvey left without Appellant, driving her
vehicle into a ditch on her way home. Appellant arrived after she called him
for assistance and proceeded to assault Ms. Harvey by throwing her into his
vehicle, striking her with his hand, and manually strangling her. He informed
her “that he would kill her and chop her up and put her in a ditch[.]” N.T.
Guilty Plea, 9/10/20, at 6. Appellant later attempted to suffocate Ms. Harvey
with a pillow. When the police arrived to arrest Appellant for the assault, he
resisted, hitting and kicking the officers in the process. Id.Appellant was charged with offenses ranging from summary harassment
to felony aggravated assault. Appellant opted to enter an open guilty plea to
the misdemeanors of strangulation, terroristic threats, simple assault, and
resisting arrest in exchange for a dismissal of the remaining charges. The trial
court accepted the plea following written and oral colloquies and scheduled a
sentencing hearing.
Appellant filed a motion to withdraw his plea before sentencing,
asserting his innocence “based upon the lack of evidence developed through
the investigation of this case and the inability of the Commonwealth to prove
the crimes charged beyond a reasonable doubt.” Motion to Withdraw Guilty
-2-
J-S28007-21
Plea, 10/26/20, at ¶ 5. Appellant claimed that he had “maintained his
innocence of these charges, stating so during his pre-trial investigation and to
some extent during his oral guilty plea,” but that his “decision to plead guilty
was clouded by the risk of potential consequences following a guilty verdict at
trial.” Id. at ¶ 6-7. The trial court held a hearing on Appellant’s motion, at
the conclusion of which it took the matter under advisement. Thereafter, the
court entered an order denying the motion, noting that Appellant’s bald
assertion of innocence did not warrant allowing the withdrawal of his plea.
See Order, 11/19/20, at n.1 (citing Commonwealth v. Carrasquillo, 115
A.3d 1284, 1285 (Pa. 2015)).
On December 10, 2020, Appellant was sentenced as indicated above.
At the sentencing hearing, Appellant’s privately-retained counsel indicated
that Appellant wished to appeal, that counsel had only been retained to
represent him through sentencing, and that Appellant lacked the funds to pay
for continued representation. Therefore, counsel made “an oral motion to be
withdrawn as counsel and to have a public defender appointed.” N.T.
Sentencing, 12/10/20, at 11. The trial court instructed counsel to file a written
motion, which he did on December 29, 2020. On January 1, 2021, another
attorney at the same law office filed an untimely post-sentence motion, stating
therein that the office “made a complete personnel change” and that new
associates discovered on December 31, 2020, that Appellant wished to seek
reconsideration of his sentence, which he believed to be “unduly harsh and
-3-
J-S28007-21
excessive.”. Motion For Reconsideration of Sentence and/or Post-Sentence
Motion Nunc Pro Tunc, 1/4/21, at ¶¶ 8-9, n.1.
Obtaining no ruling from the trial court, counsel filed a timely notice of
appeal on Monday, January 11, 2021.1 Appellant’s present counsel, John J.
Martin, II, Esquire, subsequently entered his appearance in this Court. As
noted, rather than file a brief advocating on Appellant’s behalf, Attorney Martin
filed in this Court both an Anders brief and a petition seeking leave to
withdraw as counsel. Observing that the certified record did not contain the
notes of testimony from the hearing on Appellant’s motion to withdraw his
plea, we denied counsel’s request and directed him to file either an advocate’s
brief or a new Anders brief and motion to withdraw after securing the missing
transcript. Attorney Martin opted for the latter course and has renewed his
request to withdraw as counsel. Therefore, the following legal principles guide
our review:
Direct appeal counsel seeking to withdraw under Anders
must file a petition averring that, after a conscientious
examination of the record, counsel finds the appeal to be wholly
frivolous. Counsel must also file an Anders brief setting forth
issues that might arguably support the appeal along with any
____________________________________________
1 To the notice of appeal, counsel attached correspondence from the clerk of
courts indicating that the trial court “is denying the motion.” Notice of Appeal,
1/11/21, at unnumbered 4. As the untimely motion did not toll the time for
filing an appeal and the trial court did not expressly grant nunc pro tunc relief,
the lack of an order of record disposing of Appellant’s motion does not impact
our jurisdiction over this appeal. See Commonwealth v. Capaldi, 112 A.3d
1242, 1244 (Pa.Super. 2015) (providing that a post-sentence motion nunc pro
tunc impacts the time for filing an appeal only if, within thirty days of
sentencing, the motion is filed and expressly granted).
-4-
J-S28007-21
other issues necessary for the effective appellate presentation
thereof . . . .
Anders counsel must also provide a copy of the Anders
petition and brief to the appellant, advising the appellant of the
right to retain new counsel, proceed pro se or raise any additional
points worthy of this Court’s attention.
If counsel does not fulfill the aforesaid technical
requirements of Anders, this Court will deny the petition to
withdraw and remand the case with appropriate instructions (e.g.,
directing counsel either to comply with Anders or file an
advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
petition and brief satisfy Anders, we will then undertake our own
review of the appeal to determine if it is wholly frivolous.
Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa.Super. 2007)
(citations omitted). Our Supreme Court has further detailed counsel’s duties
as follows:
[I]n the Anders brief that accompanies court-appointed counsel’s
petition to withdraw, counsel 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.
Santiago, supra at 361.
Based upon our examination of counsel’s motion to withdraw and
Anders brief, we conclude that counsel has substantially complied with the
technical requirements set forth above.2 As required by Santiago, Attorney
Martin set forth the case history with citations to the record, referred to issues
____________________________________________
2 Appellant did not file a response to counsel’s petition.
-5-
J-S28007-21
that arguably support the appeal, stated his conclusion that the appeal is
frivolous, and cited case law which supports that conclusion. See Anders
brief 5-11. Therefore, we now proceed “‘to make a full examination of the
proceedings and make an independent judgment to decide whether the appeal
is in fact wholly frivolous.’” Commonwealth v. Flowers, 113 A.3d 1246,
1249 (Pa. Super. 2015) (quoting Santiago, supra at 354 n.5).
The issues arguably supporting an appeal cited by Appellant’s counsel
are as follows: (1) “Did the trial court err in denying Appellant's motion to
withdraw guilty Plea?” and (2) “Did the trial court err in ordering an excessive
sentence, given the background of the Appellant in this matter?” Anders brief
at 11 (cleaned up).
Pertinent to the first issue, this Court reviews a trial court’s denial of a
motion to withdraw a guilty plea for an abuse of discretion. Commonwealth
v. Elia, 83 A.3d 254, 261 (Pa.Super. 2013). “When a trial court comes to a
conclusion through the exercise of its discretion, there is a heavy burden on
the appellant to show that this discretion has been abused.” Commonwealth
v. Norton, 201 A.3d 112, 120 (Pa. 2019) (cleaned up). “An abuse of
discretion will not be found based on a mere error of judgment, but rather
exists where the trial court has reached a conclusion which overrides or
misapplies the law, or where the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill-will.” Id.(cleaned up). Indeed, “it is important that appellate courts honor trial courts’
-6-
J-S28007-21
discretion in these matters, as trial courts are in the unique position to assess
the credibility of claims of innocence and measure, under the circumstances,
whether defendants have made sincere and colorable claims that permitting
withdrawal of their pleas would promote fairness and justice.” Id. at 121.
Pursuant to the Pennsylvania rules of criminal procedure, “[a]t any time
before the imposition of sentence, the court may, in its discretion, permit,
upon motion of the defendant, or direct, sua sponte, the withdrawal of a plea
of guilty or nolo contendere and the substitution of plea of not guilty.”
Pa.R.Crim.P. 591(A). Such discretion should be exercised liberally in a
defendant’s favor, so long as a “fair-and-just reason” is offered and
withdrawal would not substantially prejudice the Commonwealth.
Commonwealth v. Forbes, 299 A.2d 268, 271 (Pa. 1973). See also
Commonwealth v. Islas, 156 A.3d 1185, 1192 (Pa.Super. 2017) (noting
that establishment of a fair and just reason nonetheless does not entitle a
defendant to withdraw his plea if the withdrawal would substantially prejudice
the Commonwealth).
A plausible assertion of innocence, for example, may provide a colorable
demonstration that allowing the withdrawal of the plea would serve fairness
and justice. See Carrasquillo, supra at 1292. However, “a bare assertion
of innocence is not, in and of itself, a sufficient reason to require a court to
grant such a request.” Id. at 1285.
-7-
J-S28007-21
Attorney Wright contends that an appeal pursuing relief on this claim
would be frivolous because Appellant did not make a plausible assertion of
innocence or any other fair and just reason to withdraw the plea. Rather, he
made a bald declaration of innocence pointing to no evidence to demonstrate
its plausibility. Anders brief at 20.
Following an independent review of the certified record, we agree that
a challenge to the denial of Appellant’s motion to withdraw his plea is not
viable. In his written motion and again at the hearing, Appellant’s basis for
withdrawing the plea was that he only plead guilty because he was afraid of
“the possible sentencing that he could have been looking at in this matter,”
and that, afterwards, “he changed his mind.” N.T. Motion to Withdraw Guilty
Plea, 11/19/20, at 6. Neither Appellant’s bald claim of innocence nor his
change of mind after the probation department recommended “a significant
sentence,” id. at 8, presents a fair and just basis to allow him to withdraw his
plea. See Carrasquillo, supra at 1295; Commonwealth v. Blango, 150
A.3d 45, 48 (Pa.Super. 2016) (providing that a withdrawal request may
properly be denied when it “is founded upon a desire to manipulate the
system” (cleaned up)).
The second issue identified by Attorney Wright implicates the
discretionary aspects of Appellant’s sentence. Consequently, in reviewing the
questions, we bear in mind the following:
An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Rather, an
-8-
J-S28007-21
appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction. We determine whether the
appellant has invoked our jurisdiction by considering the following
four factors:
(1) whether appellant has filed a timely notice of
appeal; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and modify
sentence; (3) whether appellant’s brief has a fatal
defect [pursuant to] 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.
Commonwealth v. Lucky, 229 A.3d 657, 663–64 (Pa.Super. 2020) (cleaned
up).
Appellant timely filed a notice of appeal and counsel has included in his
brief a statement pursuant to Pa.R.A.P. 2119(f) identifying the excessiveness
of the aggregate sentence is excessive due to the consecutive nature of his
individual sentences. See Anders brief at 15. Counsel asserts that the claim
does not support the appeal because his claim does not raise a substantial
question and the overall sentence is not excessive in light of the significant
criminal history noted by the trial court at sentencing. Id. at 15, 22.
We agree with counsel that the discretionary aspects claim cannot
succeed. However, rather than rejecting it on its substance, it is clear that
the claim is waived. As detailed above, Appellant filed no timely motion for
reconsideration of the sentence to preserve his excessiveness claim.
Moreover, a review of the sentencing transcript reveals no excessiveness
complaint. While counsel did indicate at the close of the hearing that Appellant
-9-
J-S28007-21
wished to appeal, he did not specify what issues Appellant sought to challenge.
Indeed, given that counsel stated that Appellant informed him of his desire to
appeal prior to being sentenced, it would appear that a complaint about the
length of the sentence could not have been the impetus. By failing to preserve
a sentencing issue at the sentencing hearing or in a timely-filed post-sentence
motion, Appellant waived the issues. It is axiomatic that “[a]n issue that is
waived is frivolous.” Commonwealth v. Tukhi, 149 A.3d 881, 888
(Pa.Super. 2016).
We thus agree with counsel that neither of the issues identified in his
Anders brief supports an appeal. Moreover, our “simple review of the record
to ascertain if there appear[s] on its face to be arguably meritorious issues
that counsel, intentionally or not, missed or misstated[,]” has revealed no
additional issues counsel failed to address.3 Commonwealth v. Dempster,
187 A.3d 266, 272 (Pa.Super. 2018) (en banc). Accordingly, we affirm the
judgment of sentence and grant counsel’s petition to withdraw.
Motion of John J. Martin, II, Esquire, to withdraw as counsel granted.
Judgment of sentence affirmed.
____________________________________________
3 We have conducted our review mindful of the fact that “upon entry of a guilty
plea, a defendant waives all claims and defenses other than those sounding
in the jurisdiction of the court, the validity of the plea, and what has been
termed the ‘legality’ of the sentence imposed.” Commonwealth v.
Eisenberg, 98 A.3d 1268, 1275 (Pa. 2014).
- 10 -
J-S28007-21
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/14/2022
- 11 -