Com. v. Beatty, C.

J-S68011-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHARLES BEATTY,
Appellant No. 2960 EDA 2014
Appeal from the Judgment of Sentence entered June 25, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007216-2010
BEFORE: BENDER, P.J.E., DONOHUE, J., and MUNDY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 01, 2015
Charles Beatty (Appellant) appeals nunc pro tunc from the judgment of
sentence of two to four years’ incarceration, followed by five years’
probation, imposed after he pled guilty to corrupting the morals of a minor
and indecent assault of a person less than 13 years of age. On appeal,
Appellant seeks to raise a claim involving plea counsel’s ineffectiveness, and
a challenge to the court’s denial of his pre-trial Pa.R.Crim.P. 600 motion to
dismiss the charges against him. Additionally, his counsel, Todd M. Mosser,
Esq., seeks permission to withdraw his representation of Appellant pursuant
to Anders v. California, 386 U.S. 738 (1967), as elucidated by our
Supreme Court in Commonwealth v. McClendon, 434 A.2d 1185 (Pa.
1981), and amended in Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009). After review, we agree with counsel that Appellant’s claims are
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frivolous, and there are no other non-frivolous issues he could assert on
appeal. Therefore, we affirm Appellant’s judgment of sentence and grant
counsel’s petition to withdraw.
On June 25, 2012, Appellant entered a negotiated guilty plea to the
two above-stated offenses, and was sentenced to the agreed upon term of
two to four years’ incarceration, followed by five years’ probation.1
Appellant’s sentence was imposed to run concurrently with a sentence he
was then serving in an unrelated case. See Notes of Testimony (N.T.),
6/25/12, at 12. According to the trial court, “[o]n July 6, 2012, [Appellant]
sent a pro se letter to the [c]ourt requesting reconsideration of sentence or
withdrawal of the guilty plea….” Trial Court Opinion (TCO), 12/24/14, at 2.
For some reason, Appellant’s pro se motion to withdraw his plea was not
docketed or included in the certified record. However, the docket does
indicate that the court issued an order denying that motion on July 19,
2012.2
____________________________________________
1
In exchange for Appellant’s guilty plea, the Commonwealth nolle prossed
charges of unlawful contact with a minor, and aggravated indecent assault of
a child.
2
We also note that the trial court states that “[o]n July 11, 2012[,] Carina
Laguzzi, Esquire[,] filed a motion to withdraw as counsel [for Appellant] and
for new counsel to be appointed, which this [c]ourt granted on July 13,
2012.” Again, neither counsel’s petition to withdraw nor the court’s order
granting that petition were entered on the docket or included in the certified
record.
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Appellant did not file a direct appeal from his judgment of sentence.
However, on August 3, 2012, he filed a pro se PCRA petition and counsel
was appointed. While that attorney subsequently petitioned for, and was
granted, permission to withdraw, Attorney Mosser subsequently entered his
appearance on Appellant’s behalf. On January 31, 2014, Attorney Mosser
filed an amended PCRA petition seeking the reinstatement of Appellant’s
direct appeal rights nunc pro tunc. On September 19, 2014, the PCRA court
granted Appellant’s petition and reinstated his right to file an appeal from his
judgment of sentence. Appellant filed a nunc pro tunc notice of appeal, after
which the court issued an order directing him to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. In response, Attorney
Mosser filed a Rule 1925(c)(4) statement of his intent to file an
Anders/McClendon brief.
Before this Court, Attorney Mosser twice requested extensions of time
to file a brief on Appellant’s behalf. Both requests were granted; however,
when the due date of April 26, 2015 passed, this Court dismissed the appeal
by order dated May 19, 2015. That same day, counsel filed an application to
reinstate the appeal, which we granted. See Order, 5/26/15. On June 1,
2015, Attorney Mosser filed an Anders brief and a petition to withdraw. In
response, Appellant filed a “Pro se Application for the Removal of Counsel
and Appointment of New Counsel,” which was denied by this Court in a per
curiam order, dated July 21, 2015. The order also directed that Appellant
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was permitted to file a response to the Anders brief and the petition to
withdraw. No response from Appellant has been received by this Court.
When counsel seeks to withdraw before this Court, we “must first pass
upon counsel's petition to withdraw before reviewing the merits of the
underlying issues presented by [the appellant].” Commonwealth v.
Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc).
Prior to withdrawing as counsel on a direct appeal under
Anders, counsel must file a brief that meets the requirements
established by our Supreme Court in Santiago. The 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.
Santiago, 978 A.2d at 361. Counsel also must provide a copy of
the Anders brief to his client. Attending the brief must be a
letter that advises the client of his right to: “(1) retain new
counsel to pursue the appeal; (2) proceed pro se on appeal; or
(3) raise any points that the appellant deems worthy of the
court[']s attention in addition to the points raised by counsel in
the Anders brief.” Commonwealth v. Nischan, 928 A.2d 349,
353 (Pa. Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40(2007).
Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa. Super. 2014).
After determining that counsel has satisfied these technical requirements of
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Anders and Santiago, this Court must then “conduct an independent
review of the record to discern if there are any additional, non-frivolous
issues overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d
1246, 1250 (Pa. Super. 2015) (citations and footnote omitted).
In this case, Attorney Mosser’s Anders brief complies with the above-
stated requirements. Namely, he includes a summary of the relevant factual
and procedural history, he refers to portions of the record that could
arguably support an appeal on Appellant’s behalf, and he sets forth his
conclusion that Appellant’s appeal is frivolous. He also explains his reasons
for reaching that determination, and supports his rationale with citations to
the record and pertinent legal authority. In a letter directed to Appellant,
which Attorney Mosser attached to his petition to withdraw, Attorney Mosser
states that he provided Appellant with a copy of his Anders brief, and he
informs Appellant of the rights enumerated in Nischan. Accordingly,
counsel has complied with the technical requirements for withdrawal. We
will now independently review the record to determine if Appellant’s issues
are frivolous, and to ascertain if there are any other non-frivolous issues he
could pursue on appeal.
From Attorney Mosser’s Anders brief and petition to withdraw, we
glean that Appellant desired to raise two issues on appeal: (1) that his plea
counsel failed to show Appellant discovery in his case, or tell him that the
victim may not have been available to testify at trial; and (2) that the trial
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court erred by denying his pre-trial Rule 600 motion to dismiss the charges
against him.
Initially, Attorney Mosser explains that Appellant’s first issue is
essentially an allegation of ineffective assistance of plea counsel and, thus, it
must be raised in a PCRA petition. See Anders Brief at 11 (citing
Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013) (reaffirming the
prior holding in Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), that,
absent certain circumstances, claims of ineffective assistance of counsel
should be deferred until collateral review under the PCRA)). Because the
specific circumstances under which ineffectiveness claims may be addressed
on direct appeal are not present in the instant case, we agree with Attorney
Mosser that an attempt by Appellant to assert this issue herein would be
frivolous. See Holmes, 79 A.3d at 577-78 (holding that the trial court may
address claim(s) of ineffectiveness where they are “both meritorious and
apparent from the record so that immediate consideration and relief is
warranted,” or where the appellant’s request for review of “prolix”
ineffectiveness claims is “accompanied by a knowing, voluntary, and express
waiver of PCRA review”).
We also agree with Attorney Mosser that Appellant’s desire to
challenge the court’s denial of his Rule 600 motion is frivolous because
Appellant waived any such challenge by pleading guilty. See
Commonwealth v. Rush, 909 A.2d 805, 807 (Pa. Super. 2006) (noting
that, upon entering a guilty plea, an appellant waives “his right to challenge
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on appeal all non-jurisdictional defects except the legality of his sentence
and the validity of his plea”). We are aware of no legal authority suggesting
that a violation of Rule 600 constitutes a ‘jurisdictional defect.’ Accordingly,
a challenge to the court’s denial of Appellant’s Rule 600 motion would be
frivolous.
In sum, we agree with Attorney Mosser that the specific claims
Appellant wishes to raise on appeal are frivolous. We have also
independently reviewed the record and ascertain no other issues of arguable
merit that Appellant could raise herein. Notably, the record demonstrates
that Appellant’s plea was knowingly, intelligently, and voluntarily entered
after he completed a written plea colloquy and the court conducted a
thorough oral colloquy. Nothing in the record suggests that the trial court’s
decision to deny Appellant’s post-sentence motion to withdraw his plea
resulted in a manifest injustice. See Commonwealth v. Broaden, 980
A.2d 124, 129 (Pa. Super. 2009) (“A defendant must demonstrate that a
manifest injustice would result if the court were to deny his post-sentence
motion to withdraw a guilty plea.”). Additionally, Appellant received a legal
sentence that complied with his negotiated plea agreement. Consequently,
we affirm his judgment of sentence and grant counsel’s petition to withdraw.
Judgment of sentence affirmed. Counsel’s petition to withdraw
granted.
Judge Donohue joins this memorandum.
Judge Mundy concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/1/2015
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