Com. v. Dabney, 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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
RUSSELL DABNEY, : No. 393 EDA 2019
:
Appellant :
Appeal from the Judgment of Sentence Entered December 10, 2018,
in the Court of Common Pleas of Delaware County
Criminal Division at No. CP-23-CR-0001894-2018
BEFORE: BENDER, P.J.E., LAZARUS, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 11, 2019
Russell Dabney appeals from the December 10, 2018 judgment of
sentence entered in the Court of Common Pleas of Delaware County after he
entered a negotiated guilty plea to one count each of receiving stolen property,
possession of drug paraphernalia, and aggravated harassment by a prisoner.1
The trial court imposed an aggregate sentence of 15 to 30 months of
incarceration, followed by one year of probation. Douglas L. Smith, Esq., has
filed an Anders brief,2 with an accompanying petition, alleging that the appeal
1 18 Pa.C.S.A. §§ 3925(a), 35 P.S. § 780-113(a)(32), and 18 Pa.C.S.A.
§ 2703.1, respectively.
2See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009); Commonwealth v. McClendon, 434
A.2d 1185 (Pa. 1981).
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is frivolous. After careful review, we grant counsel’s petition to withdraw and
affirm the judgment of sentence.
The trial court set forth the following:
The incident that gave rise to [appellant’s] conviction
took place on January 24, 2018. While driving a stolen
motor vehicle[, appellant] led Darby Borough police
officers on a lengthy vehicle chase. After [appellant]
brought the stolen vehicle to a stop he fled on foot.
He was eventually taken into custody and a stolen
IPhone and drug paraphernalia were found in his
possession. [Appellant] resisted arrest. At police
headquarters EMS personnel from the Darby Fire
Company were called to evaluate [appellant’s]
condition. [Appellant] berated police officers,
screamed obscenities and spit on an officer more than
once. Eventually he was transported to Mercy
Fitzgerald Hospital where he was treated for injuries
that he sustained during the course of the foregoing
incident.[Footnote 1]
[Footnote 1] The parties stipulated that
the facts set forth in the Affidavit of
Probable Cause constituted a sufficient
factual basis for the plea.
[Appellant] pled guilty to [the aforementioned crimes
and the trial court imposed the aforementioned
sentence.] A motion to withdraw the guilty plea was
filed post-sentence. The post-sentence motion was
denied on January 9, 2019 and a timely Notice of
Appeal was filed[].
In response to an Order directing [appellant] to file a
Concise Statement of Errors Complained of on Appeal
[pursuant to Pa.R.A.P. 1925(b),] appellate counsel
has stated his intention to file an Anders brief with
the Superior Court.
Trial court opinion, 2/25/19 at 1-2 (additional footnotes omitted).
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The trial court then filed a Rule 1925(a) opinion wherein it concluded
that following a review of the record and counsel’s statement of intention to
file an Anders brief, “further exposition regarding [appellant’s] conviction and
the sentence imposed is unnecessary.” (Id. at 2.)
To withdraw under Anders, court-appointed counsel must satisfy
certain technical requirements. First, counsel must “petition the court for
leave to withdraw and state that after making a conscientious examination of
the record, he has determined that the appeal is frivolous.” Commonwealth
v. Martuscelli, 54 A.3d 940, 947 (Pa.Super. 2012), quoting Santiago, 978
A.2d at 361. Second, counsel must file an Anders brief, in which counsel:
(1) provide[s] a summary of the procedural history
and facts, with citations to the record; (2) refer[s] to
anything in the record that counsel believes arguably
supports the appeal; (3) set[s] forth counsel’s
conclusion that the appeal is frivolous; and
(4) state[s] 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. With respect to the briefing requirements,
“[n]either Anders nor McClendon requires that counsel’s brief provide an
argument of any sort, let alone the type of argument that counsel develops in
a merits brief. To repeat, what the brief must provide under Anders are
references to anything in the record that might arguably support the appeal.”
Santiago, 978 A.2d at 359, 360. Finally, counsel must furnish a copy of the
Anders brief to his client and “advise[] him of his right to retain new counsel,
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proceed pro se or raise any additional points that he deems worthy of the
court’s attention, and attach[] to the Anders petition a copy of the letter sent
to the client.” Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa.Super.
2010) (citation omitted). “[If] counsel has satisfied the above requirements,
it is then this Court’s duty to conduct its own review of the trial court’s
proceedings and render an independent judgment as to whether the appeal
is, in fact, wholly frivolous.” Commonwealth v. Goodwin, 928 A.2d 287,
291 (Pa.Super. 2007) (en banc) (quotation marks and quotation omitted).
Our review of Attorney Smith’s petition to withdraw, supporting
documentation, and Anders brief reveals that he has substantially complied
with all of the foregoing requirements. We note that counsel also furnished a
copy of the brief to appellant, advised him of his right to retain new counsel,
proceed pro se, and/or raise any additional points that he deems worthy of
this court’s attention,3 and attached to his petition to withdraw a copy of the
letter he sent to appellant as required under Commonwealth v. Millisock,
873 A.2d 748, 751 (Pa.Super. 2005). See Daniels, 999 A.2d at 594 (holding
that “[w]hile the Supreme Court in Santiago set forth the new requirements
for an Anders brief, which are quoted above, the holding did not abrogate the
notice requirements set forth in Millisock that remain binding legal
precedent.”). As Attorney Smith has complied with all of the requirements set
forth above, we conclude that counsel has satisfied the procedural
3 Appellant did not file a response.
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requirements of Anders. We, therefore, proceed to conduct an independent
review to ascertain whether the appeal is indeed wholly frivolous.
Attorney Smith raises the following issues in the Anders brief:4
[1.] Whether [appellant] entered a plea of guilty that
was a knowing, voluntary and intelligent plea of
guilty?
[2.] Whether the aggregate sentence of 15-30
months [of] incarceration followed by 1 year
[of] consecutive probation imposed on
[appellant] is harsh and excessive under the
circumstances?
Anders brief at 3 (full italics omitted).
In considering the validity of a guilty plea colloquy, “[t]he Pennsylvania
Rules of Criminal Procedure mandate pleas be taken in open court and require
the court to conduct an on-the-record colloquy to ascertain whether a
defendant is aware of his rights and the consequences of his plea.”
Commonwealth v. Prendes, 97 A.3d 337, 352 (Pa.Super. 2014) (citations
omitted), appeal denied, 105 A.3d 736 (Pa. 2014). Pursuant to Rule 590,
the sentencing court should inquire whether the defendant understands,
among other things, “the nature of the charges to which he or she is pleading
guilty[,]” and “the permissible range of sentences and/or fines” possible.
Pa.R.Crim.P. 590, Comment. “[N]othing in the rule precludes the
supplementation of the oral colloquy by a written colloquy that is read,
completed, and signed by the defendant and made a part of the plea
4 We have reordered appellant’s issues for ease of disposition.
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proceedings.” Commonwealth v. Bedell, 954 A.2d 1209, 1212-1213
(Pa.Super. 2008) (citation omitted), appeal denied, 964 A.2d 893 (Pa.
2009).
Thereafter,
[t]he reviewing Court will evaluate the adequacy of
the plea colloquy and the voluntariness of the
resulting plea by examining the totality of the
circumstances surrounding the entry of that plea.
Pennsylvania law presumes a defendant who entered
a guilty plea was aware of what he was doing, and the
defendant bears the burden of proving otherwise.
Prendes, 97 A.3d at 352 (citations omitted). Accordingly, even if there is an
omission in the oral plea colloquy, “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.”
Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa.Super. 2011)
(citation omitted).
Additionally, “a defendant is bound by the statements which he makes
during his plea colloquy.” Commonwealth v. Barnes, 687 A.2d 1163, 1167
(Pa. 1997) (citations omitted). As such, a defendant “may not assert grounds
for withdrawing the plea that contradict statements made when he pled
guilty,” and he cannot recant the representations he made in court when he
entered his guilty plea. Id. (citation omitted). Moreover, the law does not
require that a defendant be pleased with the outcome of his decision to plead
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guilty. The law only requires that a defendant’s decision to plead guilty be
made knowingly, voluntarily, and intelligently. See Commonwealth v.
Moser, 921 A.2d 526, 528-529 (Pa.Super. 2007).
Here, the record reflects that appellant read, completed, and signed a
thorough written guilty plea colloquy form, which is part of the certified record.
(Written guilty plea statement, 12/10/18.) On that form, appellant affirmed,
in writing, among other things, (i) that he understood the charges filed against
him and the maximum sentences that could be imposed for those crimes;
(ii) that he fully discussed the charges and possible defenses with his
attorney; (iii) that he was fully satisfied with his attorney’s representation and
advice; (iv) that his decision to plead guilty was his own decision; (v) that
no one used any pressure, force, or threats against him to induce him to plead
guilty; (vi) that no promises were made to induce his guilty plea; (vii) that he
committed the crimes to which he pled guilty; and (viii) that he had enough
time to fully discuss his case and decision to plead guilty with his lawyer and
that he understood and agreed with everything contained in the guilty plea
statement.5 (Id.)
The record further reflects that the trial court conducted an oral guilty
plea colloquy. (Notes of testimony, 12/10/18.) Appellant acknowledged that
he was given sufficient time and opportunity to review the guilty plea
5 We note that appellant also executed a statement of post-sentence rights.
(Appellant’s statement of post-sentence rights, 12/10/18.)
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statement. (Id. at 9.) Appellant further acknowledged that he understood
everything in the guilty plea statement, that he initialed the 29 subparagraphs
contained in the statement, and that he executed the statement. (Id.)
Appellant affirmed that no one forced or pressured him to accept the plea
agreement. (Id. at 10.) Appellant also affirmed that he was not under the
influence of drugs, alcohol, or any substance that would prevent him from
understanding the terms of the plea agreement. (Id.) Appellant
acknowledged that he understood the Commonwealth’s burden of proof but
desired to give up his right to trial and enter a guilty plea. (Id.) Appellant
declined the opportunity to ask his attorney any additional questions prior to
entering his guilty plea. (Id.)
After thoroughly reviewing the record, we conclude that the totality of
the circumstances surrounding appellant’s entry of his negotiated guilty plea
discloses that appellant fully understood the nature and consequences of his
plea and that he knowingly and voluntarily decided to enter the plea.
Appellant next challenges the discretionary aspects of his sentence.
Challenges to the discretionary aspects of sentencing
do not entitle an appellant to review as of right.
Commonwealth v. Sierra, [752 A.2d 910, 912
(Pa.Super. 2000)]. An appellant challenging the
discretionary aspects of his sentence must invoke this
Court’s jurisdiction by satisfying a four-part test:
[W]e conduct 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
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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, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial
question that the sentence appealed from
is not appropriate under the Sentencing
Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super. 2010) (citation
omitted; brackets in original).
Here, appellant filed a timely notice of appeal and included a
Pa.R.A.P. 2119(f) statement in his brief. In his post-sentence motion,
appellant only challenged the validity of his plea. (Appellant’s motion
challenging validity of guilty plea, 12/17/18.) On appeal, however, appellant
claims his sentence is harsh and excessive. (Appellant’s brief at 5-6.)
Because appellant did not give the trial court the opportunity to reconsider or
modify his sentence on the basis that the sentence was harsh and excessive,
appellant failed to properly preserve this specific discretionary sentencing
challenge for appeal. See Commonwealth v. Mann, 820 A.2d 788(Pa.Super. 2003) (stating issues that challenge discretionary aspects of
sentencing are generally waived if they are not raised during sentencing
proceedings or in post-sentence motion); accord Commonwealth v.
Lamonda, 52 A.3d 365, 371 (Pa.Super. 2012). See also Commonwealth
v. Reeves, 778 A.2d 691, 692-693 (Pa.Super. 2001) (finding waiver where
appellant “did not give the sentencing judge an opportunity to reconsider or
modify sentence” on any of the bases that appellant currently argues on
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appeal); Pa.R.A.P. 302(a) (“[i]ssues not raised in the lower court are waived
and cannot be raised for the first time on appeal”).
Nevertheless, we will address this challenge because appointed counsel
has filed an Anders brief and a petition to withdraw. See Commonwealth
v. Lilley, 978 A.2d 995, 998 (Pa.Super. 2009) (addressing the appellant’s
discretionary sentencing challenge in light of counsel’s petition to withdraw,
despite the fact that his Pa.R.A.P. 2119(f) statement failed to cite what
particular provision of the Sentencing Code or what specific fundamental norm
the appellant’s sentence allegedly violated), citing Commonwealth v.
Hernandez, 783 A.2d 784, 787 (Pa.Super. 2001) (concluding that Anders
requires review of issues otherwise waived on appeal).
Here, the issue presented in the Anders brief is that appellant’s
sentence is harsh and excessive. (Appellant’s brief at 5-6.) It is well settled,
however, that upon entry of a negotiated plea, “a defendant generally waives
all defects and defenses except those concerning the validity of the plea, the
jurisdiction of the trial court, and the legality of the sentence imposed.”
Commonwealth v. Boyd, 835 A.2d 812, 816 (Pa.Super. 2003) (citation and
quotation omitted). “One who pleads guilty and receives a negotiated
sentence may not then seek discretionary review of that sentence.”
Commonwealth v. O’Malley, 957 A.2d 1265, 1267 (Pa.Super. 2008)
(citation omitted). Because appellant entered a guilty plea and received a
negotiated sentence, he may not seek discretionary review of that sentence.
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We conclude that the record supports Attorney Smith’s assessment that
appellant’s appeal is wholly frivolous. Moreover, our independent review of
the entire record reveals no additional non-frivolous claims. Therefore, we
grant counsel’s petition to withdraw and affirm appellant’s December 10, 2018
judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/11/19
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