Com. v. Fisher, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
RYAN DAVID FISHER, :
:
Appellant : No. 348 WDA 2016
Appeal from the Judgment of Sentence February 4, 2016
in the Court of Common Pleas of Butler County,
Criminal Division, No(s): CP-10-CR-0001490-2015
BEFORE: PANELLA, LAZARUS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 16, 2016
Ryan David Fisher (“Fisher”) appeals from the judgment of sentence
imposed following his guilty plea to organized retail theft. See 18 Pa.C.S.A.
§ 3929(3)(a). Additionally, Jeffrey M. Thompson, Esquire (“Attorney
Thompson”), Fisher’s counsel, has filed a Petition to Withdraw as Counsel
and an accompanying brief pursuant to Anders v. California, 386 U.S. 738(1967). We grant Attorney Thompson’s Petition to Withdraw and affirm
Fisher’s judgment of sentence.
In June 2015, Fisher was charged with corrupt organizations, criminal
conspiracy, organized retail theft, access device fraud, retail theft, theft by
deception, and receiving stolen property.1 Thereafter, pursuant to an
agreement with the Commonwealth, Fisher waived his preliminary hearing in
exchange for the immediate withdrawal of the corrupt organizations charge
1
18 Pa.C.S.A. §§ 911(b)(3); 903(a)(1); 3929(3)(a); 406(a)(2); 3939(a)(1);
3922(a)(1); 3925(a).
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and a reduction in the grading of the criminal conspiracy charge from felony
1 to felony 3, with all other counts remaining as charged. On November 4,
2015, Fisher entered into a plea agreement, in which he pled guilty to
organized retail theft in exchange for a term of 90-180 days in prison, 30
months of probation, and $12,661.14 in restitution, with no further penalty
for the remaining charges. The trial court accepted the plea and sentenced
Fisher in accordance with the terms of the plea agreement. On February 16,
2016, Attorney Thompson filed a Motion to Withdraw as Counsel, which the
trial court denied.
Fisher filed a timely Notice of Appeal. Attorney Thompson subsequently filed
a Pa.R.A.P. 1925(c)(4) Notice of Intent to file an Anders brief. On May 9,
2016, Attorney Thompson filed a Petition to Withdraw as Counsel. Fisher
filed neither a pro se brief, nor retained alternate counsel.
In his Anders brief, Attorney Thompson has raised the following
questions for our review:
I. Did the trial court have subject matter jurisdiction over
the offenses charged?
II. Was Fisher’s guilty plea knowingly, voluntarily, and
intelligently made?
III. Did the trial court impose an illegal sentence?
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Anders Brief at 4.2
We must first determine whether Attorney Thompson 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
(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
2
“Upon entering a guilty plea, a defendant waives his right to challenge on
appeal all non-jurisdictional defects except the legality of his sentence and
the validity of his plea.” Commonwealth v. Passmore, 857 A.2d 697,
708-09 (Pa. Super. 2004).
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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 Thompson has complied with the requirements set
forth in Anders by indicating that he has conscientiously examined the
record and determined that an appeal would be frivolous. Further, Attorney
Thompson provided a letter to Fisher, informing him of counsel’s intention to
withdraw and advising Fisher of his rights to retain new counsel, proceed pro
se, and file additional claims. Finally, Attorney Thompson’s Anders brief
meets the standards set forth in Santiago by providing a factual summary
of Fisher’s case, with support for Attorney Thompson’s conclusion that
Fisher’s plea was knowingly, voluntarily, and intelligently made, that the trial
court did not impose an illegal sentence and had subject matter jurisdiction
over Fisher’s offenses, rendering his appeal wholly frivolous. Because
Attorney Thompson has complied with the procedural requirements for
withdrawing from representation, we will independently review the record to
determine whether Fisher’s appeal is, in fact, wholly frivolous.
In his first claim, Fisher contends that the trial court did not have
subject matter jurisdiction over the offenses charged. Anders Brief at 12.
Subject matter jurisdiction regards the competency of a court to hear
and decide the type of issues presented. See Commonwealth v. Bethea,
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828 A.2d 1066, 1074 (Pa. 2003). All courts of common pleas have
statewide subject matter jurisdiction in cases arising under the Crimes Code.
See id.Here, Fisher’s guilty plea to organized retail theft was filed in the Court
of Common Pleas of Butler County. Thus, the trial court had subject matter
jurisdiction over the charges filed against Fisher, and this claim is wholly
frivolous. See id.In his second claim, Fisher argues that his guilty plea was not
knowingly, voluntarily, or intelligently made. Anders Brief at 14.
Our law is clear that, to be valid, a guilty plea must be
knowingly, voluntarily and intelligently entered. There is no
absolute right to withdraw a guilty plea, and the decision as to
whether to allow a defendant to do so is a matter within the
sound discretion of the trial court. To withdraw a plea after
sentencing, a defendant must make a showing of prejudice
amounting to “manifest injustice.” A plea rises to the level of
manifest injustice when it was entered into involuntarily,
unknowingly, or unintelligently. A defendant’s disappointment in
the sentence imposed does not constitute “manifest injustice.”
Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa. Super. 2008)
(citation omitted). In order to ensure a voluntary, knowing, and intelligent
plea, trial courts are required to ask the following questions in the guilty plea
colloquy:
1) Does the defendant understand the nature of the charges to
which he or she is pleading guilty or nolo contendere?
2) Is there a factual basis for the plea?
3) Does the defendant understand that he or she has the right to
a trial by jury?
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4) Does the defendant understand that he or she is presumed
innocent until found guilty?
5) Is the defendant aware of the permissible ranges of sentences
and/or fines for the offenses charged?
6) Is the defendant aware that the judge is not bound by the
terms of any plea agreement tendered unless the judge
accepts such agreement?
Id. (citation omitted); see also Pa.R.Crim.P. 590, cmt. “Once a defendant
has entered a plea of guilty, it is presumed that he was aware of what he
was doing, and the burden of proving involuntariness is upon him.”
Commonwealth v. Stork, 737 A.2d 789, 790 (Pa. Super. 1999) (citation
and brackets omitted). “In determining whether a guilty plea was entered
knowingly and voluntarily, … a court is free to consider the totality of the
circumstances surrounding the plea.” Commonwealth v. Flanagan, 854
A.2d 489, 513 (Pa. 2004) (citation and quotation marks omitted).
Fisher indicated that at the time of his plea, he understood the English
language and he was not under the influence of alcohol or drugs. See N.T.,
11/04/15, at 2; Written Plea Colloquy, 11/04/15, at 1. Fisher confirmed that
he knew and understood the nature of the charges, the factual basis for the
plea, the permissible range of sentences and fines, and that the judge was
not bound by the terms of the plea agreement. See N.T., 11/04/15, at 3-4;
Written Plea Colloquy, 11/04/15, at 2-4. Fisher also acknowledged that by
pleading guilty, he was foregoing certain rights, including, inter alia, the
presumption of innocence, the right to file pre-trial motions and the right to
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a jury trial. See N.T., 11/04/15, at 4-5; Written Plea Colloquy, 11/04/15, at
2-3. Based upon the foregoing, we conclude that Fisher’s guilty plea was
knowingly, voluntarily and intelligently made. See Commonwealth v.
Kelly, 5 A.3d 370, 382 n.11 (Pa. Super. 2010) (stating that “[a] defendant
is bound by the statements he makes during his plea colloquy, and may not
assert grounds for withdrawing the plea that contradict statements made
when he pled.”) (citation omitted).
Lastly, Fisher challenges the legality of his sentence. Anders Brief at
15.
Initially, “any claim, which asserts that a sentence exceeds the lawful
maximum, implicates the legality of the sentence.” Commonwealth v.
Foster, 17 A.3d 332, 336 (Pa. 2011). A challenge to the legality of a
sentence can be raised as a matter of right and is non-waivable.
Commonwealth v. Munday, 78 A.3d 661, 664 (Pa. Super. 2013).
Whether a sentence is illegal presents a question of law, and our standard of
review is plenary. Commonwealth v. Orie, 88 A.3d 983, 1020 (Pa. Super.
2014).
Here, Fisher pled guilty to a felony 3 crime: organized retail theft. A
felony of the third degree carries a maximum sentence of seven years in
prison and a fine of $15,000. See 18 Pa.C.S.A. § 1103(3). The trial court
sentenced Fisher to serve a term of 90 to 180 days in prison, which falls well
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within the permissible range. Thus, the trial court did not impose an illegal
sentence, and Fisher’s claim is without merit.
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 Fisher’s appeal is wholly frivolous, and
Attorney Thompson is entitled to withdraw as counsel.
Petition to Withdraw as Counsel granted; judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/16/2016
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