Com. v. Anushiem, A.

J-S51020-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTHONY ANUSHIEM
Appellant No. 3060 EDA 2014
Appeal from the Judgment of Sentence August 27, 2014
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0002832-2014
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 07, 2015
Anthony Anushiem appeals from the judgment of sentence entered in
the Court of Common Pleas of Delaware County, following his negotiated
guilty plea to simple assault1 and possession of an instrument of crime.2
Anushiem’s appellate counsel seeks to withdraw from representation
pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967),
and Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Upon
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. § 2701(a)(3).
2
18 Pa.C.S.A. § 907(a).
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review, we affirm Anushiem’s judgment of sentence and grant counsel’s
petition to withdraw.3
The trial court summarized the relevant procedural facts and history of
this case as follows:
On August 27, 2014, Anthony Anushiem (hereinafter referred to
as “Appellant”) entered into a negotiated guilty plea, and was
sentenced by the undersigned in the above-captioned matter as
follows: Count 1, Simple Assault, “time served to 23 months,
time served being the period of 4/25/14 to 8/27/14. You are to
stay away from the victim. That is no contact with the victim or
any residence that she is living at. Forfeit the key and cell
phone and payment of court costs. On Count 4, Possession
Instrument of Crime . . . one year probation. That sentence is
concurrent to Count 1.” . . . On September 4, 2014, the
Appellant filed a “Post-Sentence Motion to Withdraw Guilty Plea.”
A Hearing was held on the Motion, and on September 29, 2014,
an Order was entered denying Appellant’s “Motion to Withdraw
Guilty Plea.” On October 27, 2014, Appellant filed a timely
Notice of Appeal. The Court directed Appellant to file a
statement of matters complained of on appeal. In response, on
November 18, 2014, counsel for Appellant filed a statement of
intent to file an Anders brief with the Superior Court pursuant to
Pa.R.A.P. 1925(c)(4). Counsel’s statement of intent eliminates
this Court’s duty to file an opinion under Pa.R.A.P. 1925(a),
since this Court plays no role in evaluating the Anders brief.
Commonwealth v. McBride, 957 A.2d 752, 758 (Pa. Super.
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3
On August 24, 2015, Anushiem filed a pro se motion to assert additional
matters on appeal. He attached to that motion a petition for post conviction
collateral relief, raising claims of ineffectiveness of counsel as well as other
claims for which Anushiem may be entitled to relief under the Post
Conviction Relief Act. 42 Pa.C.S.A. §§ 9541-9546. We deny this motion
without prejudice to Anushiem’s right to raise these issues on collateral
review. See Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002),
reargument denied, clarified 821 A.2d 1246 (Pa. 2003) (“We now hold that,
as a general rule, a petitioner should wait to raise claims of ineffective
assistance of trial counsel until collateral review.”).
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2008) (“If counsel files a statement of intent to file an Anders
brief pursuant to Rule 19259(c)(4), a trial court opinion is not
necessary and the trial court record shall be certified and
transmitted . . . to this court.”).
Trial Court Opinion, 12/1/2014.
Counsel has filed a petition to withdraw and brief pursuant to Anders
and Santiago. There are particular mandates that counsel seeking to
withdraw pursuant to Anders must follow. These mandates and the
significant protection they provide to an Anders appellant arise because a
criminal defendant has a constitutional right to a direct appeal and to
counsel on that appeal. Commonwealth v. Woods, 939 A.2d 896, 898
(Pa. Super. 2007). We have summarized these requirements as follows:
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 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).
Id. (citations omitted).
Further, the Anders brief that accompanies counsel’s petition to
withdraw must:
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(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, 978 A.2d at 361. When faced with a purported Anders brief, we
do not review the merits of the underlying issues without first deciding
whether counsel has properly requested permission to withdraw.
Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa. Super. 2008)
(citation omitted). If counsel has met these 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 354 n.5.
Here, counsel has complied with the requirements outlined above.
Counsel has filed a petition with this Court stating that after a thorough
review of the case, counsel “had found a complete lack of issues that might
be raised on appeal and . . . believes this appeal to be wholly frivolous.”
Petition to Withdraw as Counsel, 2/19/15, ¶ 2-3. Counsel has filed a brief
setting forth one issue that might arguably support an appeal, see Anders
Brief, at 3-4, and sets forth his conclusion that the appeal is frivolous, citing
to the relevant portions of the record. See id. at 4-5. Finally, counsel has
attached to his petition the letter that he sent to Anushiem, which enclosed
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counsel’s petition and Anders brief and advised Anushiem of his right to
proceed pro se or with private counsel and to raise any additional issues that
he deems worthy of this Court’s consideration. Petition to Withdraw as
Counsel, 2/19/15, Appendix A.
Counsel raises the following issue: whether Anushiem’s claim that
counsel was not prepared to represent him at trial and his apprehensions
about his attorney should have been addressed during the guilty plea
colloquy?
Counsel states the issue is frivolous since Anushiem’s allegations of
counsel’s unpreparedness were vague at best. Trial counsel stated that he
was, in fact, ready to represent Anushiem at trial. See N.T. Jury Selection,
8/26/14, at 99-100. Despite Anushiem’s statement that he did not think his
attorney was ready to represent him at trial, when faced with the court’s
refusal to delay the trial any further, Anushiem entered his plea. Tellingly,
he raised no “concerns” about his counsel during the guilty plea colloquy.
See Guilty Plea Hearing, 8/27/14, at 3-16. Additionally, Anushiem
acknowledged that counsel reviewed the six-page plea statement with him,
line by line. Finally, the plea agreement was reached after “lengthy
negotiations.” Id. at 3, 13.
“[A] defendant who attempts to withdraw a guilty plea after
sentencing must demonstrate prejudice on the order of manifest injustice
before withdrawal is justified. A plea rises to the level of manifest injustice
when it was entered into involuntarily, unknowingly, or unintelligently.”
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Commonwealth v. Muhammad, 794 A.2d 378, 383 (Pa. Super. 2002);
See also Pa.R.Crim.P. 590(A)(3).
Here, Anushiem entered a negotiated guilty plea. He pled guilty to
simple assault and PIC in exchange for the prosecutor’s agreement to
recommend a sentence of time served (124 days) to 23 months’
imprisonment for simple assault and a concurrent term of one year
probation for PIC.
Prior to accepting a defendant’s guilty plea, the trial court must
determine that defendant’s guilty plea is voluntarily and understandingly
tendered. Pa.R.Crim.P. 590(a)(3). Here, the court accepted that plea after
a full colloquy, and imposed the recommended sentence. N.T. Guilty Plea
Colloquy, 8/27/14, at 6-11. The record makes clear Anushiem understood
the terms of the plea agreement and voluntarily and intelligently entered
into it. Anushiem also signed and initialed each paragraph of a six-page
written guilty plea statement, which, as noted above, his counsel reviewed
with him. See Guilty Plea Statement, 9/5/14. From our review of the
record, it appears that Anushiem’s concerns regarding his attorney’s
readiness for trial was more a function of his attempt to delay the trial. We
find no manifest injustice. Muhammad, supra.Accordingly, we affirm the judgment of sentence and grant counsel’s
petition to withdraw.
Judgment of sentence affirmed. Motion to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/7/2015
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