Com. v. Drakes, M.

J-S75024-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL F. DRAKES
Appellant No. 733 EDA 2014
Appeal from the Judgment of Sentence January 31, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006408-2013
BEFORE: ALLEN, J., LAZARUS, J., and MUNDY, J.
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 23, 2014
Michael F. Drakes appeals from his judgment of sentence imposed on
January 31, 2014 in the Court of Common Pleas of Philadelphia County after
he entered a negotiated guilty plea to one count of retail theft as a
misdemeanor of the first degree. Counsel has petitioned this Court to
withdraw her representation of Drakes pursuant to Anders, McClendon and
Santiago.1 Upon review, we affirm Drakes’ judgment of sentence and grant
counsel’s petition to withdraw.
In order to withdraw pursuant to Anders and McClendon, counsel
must: 1) petition the Court for leave to withdraw, certifying that after a
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1
Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981); and Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
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thorough review of the record, counsel has concluded the issues to be raised
are wholly frivolous; 2) file a brief referring to anything in the record that
might arguably support an appeal; and 3) furnish a copy of the brief to the
appellant and advise him of his right to obtain new counsel or file a pro se
brief to raise any additional points that the appellant deems worthy of
review. Commonwealth v. Hernandez, 783 A.2d 784, 786 (Pa. Super.
2001). In Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), the
Pennsylvania Supreme Court held that, in order to withdraw under Anders,
counsel must also state his reasons for concluding his client’s appeal is
frivolous.
Instantly, counsel’s petition states that she has made an examination
of the record and concluded the appeal is wholly frivolous. Counsel indicates
that she supplied Drakes with a copy of the brief and a letter explaining his
right to proceed pro se,2 or with newly-retained counsel, and to raise any
other issues he believes might have merit. Counsel also has submitted a
brief, setting out in neutral form two issues of arguable merit and, pursuant
to the dictates of Santiago, explains why she believes the issues to be
frivolous. Thus, counsel has substantially complied with the requirements
for withdrawal.
____________________________________________
2
Drakes has not submitted any additional or supplemental filings to this
Court.
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Counsel having satisfied the above requirements, this Court must
conduct its own review of the proceedings and render an independent
judgment as to whether the appeal is, in fact, wholly frivolous.
Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).
On appeal, Drakes challenges the validity of his guilty plea and the
legality of his sentence.
Drakes first claims that his guilty plea was invalid. To be valid, a
guilty plea must be voluntary, knowing and intelligent. Commonwealth v.
Diehl, 61 A.3d 265, 268 (Pa. Super. 2013). A guilty plea colloquy must
include an inquiry into whether: (1) the defendant understands the nature
of the charge to which he is pleading guilty; (2) there is a factual basis for
the plea; (3) the defendant understands that he has the right to a jury trial;
(4) the defendant understands that he is presumed innocent until found
guilty; (5) the defendant is aware of the permissible range of sentences; and
(6) the defendant is aware that the court is not bound by the terms of any
plea agreement unless it accepts the agreement. Commonwealth v.
Shekerko, 639 A.2d 810, 813 (Pa. Super. 1994); see also Pa.R.Crim.P.
590 (comment). In determining whether a defendant’s plea was knowing,
intelligent and voluntary, appellate courts consider the totality of the
circumstances, which include the contents of both the oral and written plea
colloquies. Commonwealth v. Fears, 836 A.2d 52, 64 (Pa. 2003).
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Here, the Honorable Linda Carpenter engaged in an on-the-record
colloquy with Drakes in which she advised him of the nature of the charges
against him, N.T. Guilty Plea, 1/31/14, at 9; the permissible range of
sentences, id.; the factual basis of the plea, id. At 12-13; that he had a
right to a jury trial, id.; that he would be presumed innocent until proven
guilty, id.; that by pleading guilty he would be in violation of his probation,
id. at 10; and that she would be imposing the recommended sentence of
three years’ probation, id. at 11. Moreover, Drakes acknowledged that he
completed and signed a written plea colloquy prior to the hearing. Id. at 6.
Accordingly, Drakes’ plea was entered in a knowing, intelligent and voluntary
manner.
Next, Drakes asserts that his sentence is illegal. Drakes was
sentenced to three years’ probation for one count of retail theft (M1). The
maximum possible sentence for retail theft as a misdemeanor of the first
degree is five years’ imprisonment. See 18 Pa.C.S.A. § 1104. Accordingly,
Drakes’ sentence of three years’ probation was well within the statutory
maximum and, as such, not illegal.
Judgment of sentence affirmed; petition to withdraw as counsel
granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2014
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