Com. v. Fooks, K.

J-S61034-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
KHAMAL FOOKS, :
:
Appellant : No. 251 WDA 2016
Appeal from the Judgment of Sentence October 5, 2015
in the Court of Common Pleas of Allegheny County,
Criminal Division, No(s): CP-02-CR-0008254-2013
BEFORE: PANELLA, LAZARUS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 16, 2016
Khamal Fooks (“Fooks”) appeals from the judgment of sentence
imposed following his guilty plea to third-degree murder, conspiracy, and
firearms not to be carried without a license.1 Additionally, Thomas N.
Farrell, Esquire (“Attorney Farrell”), Fooks’s counsel, has filed a Petition to
Withdraw as Counsel and an accompanying brief pursuant to Anders v.
California, 386 U.S. 738, 744 (1967). We grant Attorney Farrell’s Petition
to Withdraw and dismiss the appeal.
Fooks and Rayshon Shields intended to sell drugs to people in a home.
However, once inside, Fooks and Shields decided to rob the people. Fooks
shot and killed Roger Griffin (“Griffin”) as Griffin attempted to run out of the
house. Fooks and Shields then took money and cell phones from the home.
1
18 Pa.C.S.A. §§ 2502(c); 903(c); 6106(a)(1).
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Fooks was subsequently arrested and charged with criminal homicide,
robbery, conspiracy, and firearms not to be carried without a license.
On October 5, 2015, Fooks and the Commonwealth agreed to the
following guilty plea regarding the above-referenced charges: (1) the degree
of guilt for the homicide charge would be third-degree murder; (2) the
Commonwealth would withdraw the robbery charge; (3) Fooks would plead
guilty to the remaining charges (conspiracy and firearms not to be carried
without a license); and (4) Fooks would receive a sentence of twenty to forty
years in prison for third-degree murder, and no further sentence on the
remaining crimes. The trial court accepted the negotiated plea after
conducting an oral colloquy. On that same date, in accordance with the plea
agreement, the trial court sentenced Fooks to an aggregate term of twenty
to forty years in prison for third-degree murder, with no further penalty for
the remaining charges. On October 30, 2015, trial counsel filed a Motion to
Withdraw as Counsel, which the trial court granted and subsequently
appointed Attorney Farrell.
On January 8, 2016, Fooks timely filed a Petition pursuant to the Post
Conviction Relief Act (“PCRA”)2 requesting that his appeal rights be
reinstated from the point of the post-sentencing motions stage, which the
PCRA court granted. On January 19, 2016, Fooks filed a Motion to
Reconsider Sentence, Nunc Pro Tunc, which the trial court denied.
2
42 Pa.C.S.A. §§ 9541-9546.
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Thereafter, Fooks filed a timely Notice of Appeal of his judgment of
sentence. Attorney Farrell subsequently filed a Pa.R.A.P. 1925(c)(4) Notice
of Intent to file an Anders brief.
On appeal, Attorney Farrell has filed an Anders Brief, raising the
following question for our review:
Whether the trial court erred and/or abused its discretion by
imposing a harsh sentence and not granting Fooks’s [M]otion to
[R]econsider [S]entence, when Fooks and the Commonwealth[,]
after a negotiation session[,] asked the trial court to sentence
Fooks to twenty (20) to forty (40) years of incarceration for
third-degree murder with no further penalty as to the non-
homicide charges, when the facts of the case overwhelmingly
support a conviction of second-degree murder which, alone,
would have resulted in a life sentence without the possibility of
parole and the trial court actually accepted the guilty plea and
sentenced Fooks to the negotiated sentence?
Anders Brief at 5. Attorney Farrell also filed a Petition to Withdraw as
Counsel with this Court on May 16, 2016. Fooks filed neither a pro se brief,
nor retained alternate counsel.
We must first determine whether Attorney Farrell has complied with
the dictates of Anders in petitioning to withdraw from representation. See
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007)
(stating that “[w]hen faced with a purported Anders brief, this Court may
not review the merits of any possible underlying issues without first
examining counsel’s request to withdraw.”). Pursuant to Anders, when an
attorney believes that an appeal is frivolous and wishes to withdraw as
counsel, he or she must
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(1) [p]etition the court for leave to withdraw stating that after
making a conscientious examination of the record, counsel has
determined the appeal would be frivolous; (2) file a brief
referring to any issues that might arguably support the appeal,
but which does not resemble a no-merit letter; and (3) furnish a
copy of the brief to the defendant and advise him of his right to
retain new counsel, proceed pro se, or raise any additional points
he deems worthy of this Court’s attention.
Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012)
(citation omitted).
Additionally, the Pennsylvania Supreme Court has determined that a
proper 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 the record,
controlling case law, and/or statutes on point that have led to
the conclusion that the appeal is frivolous.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
Here, Attorney Farrell has complied with the requirements set forth in
Anders by indicating that he conscientiously examined the record and
determined that an appeal would be frivolous. Further, Attorney Farrell
provided a letter to Fooks, informing him of Attorney Farrell’s intention to
withdraw as counsel and advising Fooks of his rights to retain new counsel,
proceed pro se, and file additional claims. Finally, Attorney Farrell’s Anders
Brief meets the standards set forth in Santiago, by setting forth his
conclusion that the trial court did not err or abuse its discretion in imposing
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Fooks’s sentence, rendering Fooks’s appeal wholly frivolous. Because
Attorney Farrell has complied with the procedural requirements for
withdrawing from representation, we will independently review the record to
determine whether Fooks’s appeal is, in fact, wholly frivolous.
Fooks contends that the sentencing judge abused his discretion in
imposing a manifestly excessive sentence of twenty to forty years in prison
for third-degree murder. Anders Brief at 13.
Fooks challenges the discretionary aspects of his sentence.
Prior to reaching the merits of a discretionary sentencing issue,
an appellate court conducts a four-part analysis to determine:
(1) whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, see [Pa.R.Crim.P. 720]; (3) whether appellant’s brief
has a fatal defect, see Pa.R.A.P. 2119(f); and (4) whether there
is substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Phillips, 946 A.2d 103, 112 (Pa. Super. 2008) (citation
omitted).
Here, Fooks entered into a negotiated guilty plea which provided that
he would receive a sentence of twenty to forty years in prison. See, e.g.,
N.T., 10/5/15, at 5-6. Fooks is not entitled to discretionary review of his
negotiated sentence. See Commonwealth v. O’Malley, 957 A.2d 1265,
1267 (Pa. Super. 2008) (stating that “an appellant who pleads guilty and
receives a negotiated sentence may not then seek discretionary review of
that sentence.”). Thus, we may not review Fooks’s sentence. See id.-5-
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Further, our independent examination of the record indicates that
there are no other claims of arguable merit. See Anders, 386 U.S. at 744-
45. Accordingly, we conclude that Fooks’s appeal is wholly frivolous, and
Attorney Farrell is entitled to withdraw as counsel.
Petition to Withdraw as Counsel granted; appeal dismissed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/16/2016
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