Com. v. Nwani, I.

J-S57033-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
IFEANYI NWANI
Appellant No. 984 EDA 2015
Appeal from the Judgment of Sentence Entered March 11, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No: CP-23-CR-0007130-2014
BEFORE: MUNDY, OTT, and STABILE, J.J.
MEMORANDUM BY STABILE, J.: FILED DECEMBER 21, 2015
Appellant, Ifeanyi Nwani, appeals from the trial court’s March 11, 2015
judgment of sentence imposing time served to 23 months of incarceration
followed by two years of probation for one count of unlawful restraint (18
Pa.C.S.A. § 2902), and a $200 fine for summary harassment (18 Pa.C.S.A.
§ 2709). Counsel has filed a brief and petition to withdraw pursuant to
Anders v. California, 386 U.S. 738 (1967) and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009). We affirm the judgment of sentence
and grant the petition to withdraw.
The record reveals that the trial court imposed Nwani’s sentence
pursuant to a negotiated guilty plea. N.T. Guilty Plea, 3/11/15, at 3-4, 20-
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21. Counsel filed this timely appeal at Nwani’s direction. The Anders Brief
addresses the discretionary aspects of Nwani’s sentence.1 Before we turn to
the merits, we consider whether counsel has complied with the technical
dictates of Anders and Santiago.
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.
Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014).
“Counsel also must provide a copy of the Anders brief to his client.” Id.“Attending the brief must be a letter that advises the client of his right to:
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1
The Anders Brief has not preserved this issue by including a Pa.R.A.P.
2119(f) concise statement of errors complained of on appeal. The
Commonwealth has not objected to this omission, and therefore the absence
of the Pa.R.A.P. 2119(f) statement is of no moment. Commonwealth v.
Robinson, 931 A.2d 15, 19 (Pa. Super. 2007) (“If a defendant fails to
include an issue in his Rule 2119(f) statement, and the Commonwealth
objects, then the issue is waived and this Court may not review the claim.”).
We observe, also, that Appellant has filed a short pro se document
expounding on his belief that the sentence was overly harsh.
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(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.”
Id. We have reviewed counsel’s brief and application to withdraw and
concluded that it substantially complies with the foregoing.
Turning to the merits, we observe that “[t]he entry of a guilty plea
constitutes a waiver of all defects and defenses except lack of jurisdiction,
invalidity of the plea, and illegality of the sentence.” Commonwealth v.
Main, 6 A.3d 1026, 1028 (Pa. Super. 2010). Counsel’s Anders Brief
acknowledges as much. Instantly, the trial court imposed the recommended
sentence that Appellant negotiated with the Commonwealth.
When a negotiated plea includes sentencing terms (or,
more properly, the Commonwealth’s commitment to recommend
a certain sentence), the defendant’s knowing and voluntary
acceptance of those terms rightly extinguishes the ability to
challenge a sentence the defendant knew was a proper
consequence of his plea.
Commonwealth v. Eisenberg, 98 A.3d 1268, 1276 (Pa. 2014).
Furthermore, Appellant did not preserve a challenge to the trial court’s
sentencing discretion in a post-trial motion, in accord with Pa.R.Crim.P. 720.
Counsel is correct that Appellant’s challenge to the trial court’s sentencing
discretion is frivolous.
Our independent review of the record confirms that trial court’s
sentence for unlawful restraint—up to 23 months of incarceration followed by
two years of probation—falls within the five-year statutory maximum
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applicable to Appellant’s unlawful restraint conviction, which is a
misdemeanor of the first degree. 18 Pa.C.S.A. § 2902(a); 1104(1).
Likewise, the $200 fine for summary harassment falls within the statutory
limits, as the trial court could have imposed up to 90 days of incarceration
and a $500 fine for a summary offense. 18 Pa.C.S.A. § 1105.
Our review of the transcript convinces us that Appellant entered a
knowing, intelligent, and voluntary guilty plea.
A valid plea colloquy must delve into six areas: 1) the
nature of the charges, 2) the factual basis of the plea, 3) the
right to a jury trial, 4) the presumption of innocence, 5) the
sentencing ranges, and 6) the plea court’s power to deviate from
any recommended sentence. Additionally, a written plea
colloquy that is read, completed and signed by the defendant
and made part of the record may serve as the defendant’s plea
colloquy when supplemented by an oral, on-the-record
examination. [A] plea of guilty will not be deemed invalid if the
circumstances surrounding the entry of the plea disclose that the
defendant had a full understanding of the nature and
consequences of his plea and that he knowingly and voluntarily
decided to enter the plea. Our law presumes that a defendant
who enters a guilty plea was aware of what he was doing. He
bears the burden of proving otherwise. The entry of a
negotiated plea is a strong indicator of the voluntariness
of the plea. Moreover, [t]he law does not require that [the
defendant] be pleased with the outcome of his decision to enter
a plea of guilty: All that is required is that [his] decision to plead
guilty be knowingly, voluntarily and intelligently made
Commonwealth v. Reid, 117 A.3d 777, 782-83 (Pa. Super. 2015) (internal
citations and quotation marks omitted; emphasis added).
Appellant, 28 years old at the time of the plea hearing, acknowledged
that he reviewed his four-page written guilty plea with his attorney. N.T.
Guilty Plea, 3/11/15, at 5-6. He acknowledged reading the affidavit of
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probable cause. Id. at 15. Appellant’s counsel explained in detail his trial
rights, and counsel informed Appellant that counsel was prepared to proceed
to trial. Id. at 6-10. Counsel also informed Appellant of the maximum
sentences he could receive for each of the charged offenses. Id. at 10.
Counsel also explained that Appellant’s guilty plea could trigger a Gagnon
II2 hearing in connection with a sentence for a prior conviction. Id. at 16.
Appellant disavowed any mental or physical disability that prevented him
from understanding his plea. Id. at 5. In sum, our review of the guilty plea
transcript reveals no defect in Appellant’s plea.
In summary, we agree with counsel that any challenge to the trial
court’s sentence is frivolous. Our independent review of the record does not
reveal any non-frivolous arguments available to Appellant. We therefore
affirm the judgment of sentence and grant counsel’s petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/2015
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2
Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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