Com. v. Washington, A.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ALVIN WASHINGTON
Appellant No. 422 MDA 2015
Appeal from the Judgment of Sentence January 20, 2015
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0005006-2013
BEFORE: ALLEN, J., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY OTT, J.: FILED AUGUST 28, 2015
Alvin Washington appeals from the judgment of sentence entered
January 20, 2015, in the Court of Common Pleas of Berks County.
Washington entered into an open plea to a single count of aggravated
assault, 18 Pa.C.S. § 2702(a)(1). A presentence report had already been
prepared and Washington was sentenced the same day to a term of nine to
twenty years’ incarceration. In this timely appeal, Washington claims the
trial court erred in denying his post-sentence motion to either modify his
sentence or withdraw his guilty plea. Counsel filed an Anders1 brief
asserting the appeal is frivolous and seeks to withdraw as counsel. In its
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*
Retired Senior Judge assigned to the Superior Court.
1
Anders v. California, 386 U.S. 738 (1967).
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Pa.R.A.P. 1925(a) opinion, the trial court agrees that there are no non-
frivolous issues.2 Following a thorough review of the submissions by the
parties, the certified record and relevant law, we grant counsel’s motion to
withdraw and affirm the judgment of sentence.
As we do not address the merits of issues raised on appeal
without first reviewing a request to withdraw, we review
counsel's petition to withdraw at the outset. Commonwealth v.
Cartrette, 83 A.3d 1030 (Pa. Super. 2013) (en banc). The
procedural requirements for withdrawal require counsel to: 1)
petition for leave to withdraw and state that, after making a
conscientious examination of the record, counsel has concluded
that the appeal is frivolous; 2) provide a copy of the Anders
brief to the defendant; and 3) inform the defendant that he has
the right to retain private counsel or raise, pro se, additional
arguments that the defendant deems worthy of the court's
attention. Id.
Commonwealth v. Zeigler, 112 A.3d 656, 659 (Pa. Super. 2015).3
Our review of the certified record confirms counsel has complied with
the above stated requirements.
Next, we are required to determine whether the Anders brief complies
with the requirements set forth in Commonwealth v. Santiago, 978 A.2d
349 (Pa. 2009). Those requirements are:
(1) provide a summary of the procedural history and facts, with
citations to the record; (2) refer to anything in the record that
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2
Washington’s counsel filed a statement pursuant to Pa.R.A.P. 1925(c)(4) of
his intention to file an Anders brief.
3
Washington filed a response to counsel’s brief and petition to withdraw
pursuant to Anders. In addition, Washington filed a pro se “continuation of
brief for appellant.”
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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.
Zeigler, 113 A.3d at 660.
Our review of the brief confirms the brief complies with the Santiago
requirements. We now review the merits of Washington’s claims. He
argues the trial court erred in failing to grant his post-sentence motion to
either withdraw his guilty plea or modify his sentence. Prior to the trial court
accepting Washington’s guilty plea, Washington filled out and signed a
written colloquy form indicating, in relevant part, that no one had forced him
into the plea, he was of sound mind, he understood his rights as outlined in
the form and that he agreed with the facts supporting the plea as stated in
the affidavit of probable cause from the criminal complaint, and which was
attached to the form. The oral colloquy further indicated Washington
understood his rights, was satisfied with his attorney’s representation,
understood the maximum sentence he faced and that imposition of sentence
would be left to the sound discretion of the trial court. See N.T. Guilty
Plea/Sentencing, 1/20/2015.
Regarding our review of the denial of a post-sentence motion to
withdraw a guilty plea, we are mindful:
“[P]ost-sentence motions for withdrawal are subject to higher
scrutiny since courts strive to discourage entry of guilty pleas as
sentence-testing devices.” [Commonwealth v.] Flick, 802 A.2d
[620] at 623 [(Pa. Super. 2002)]. A defendant must
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demonstrate that manifest injustice would result if the court
were to deny his post-sentence motion to withdraw a guilty plea.
Id., citing Commonwealth v. Gunter, 565 Pa. 79, 771 A.2d
767 (2001); [Commonwealth v.] Kirsch, 930 A.2d [1282] at
1284 [(Pa. Super. 2007)]. “Manifest injustice may be established
if the plea was not tendered knowingly, intelligently, and
voluntarily.” Commonwealth v. Hodges, 789 A.2d 764, 765
(Pa. Super. 2002), citing Commonwealth v. Persinger, 532
Pa. 317, 615 A.2d 1305 (1992). In determining whether a plea is
valid, the court must examine the totality of circumstances
surrounding the plea. Commonwealth v. Flanagan, 578 Pa.
587, 854 A.2d 489, 500 (2004). A deficient plea does not per se
establish prejudice on the order of manifest injustice.
Commonwealth v. Carter, 540 Pa. 135, 656 A.2d 463 (1995);
Commonwealth v. Yager, 454 Pa.Super. 428, 625 A.2d 1000
(1996), appeal denied, 549 Pa. 716, 701 A.2d 577 (1997).
Commonwealth v. Broaden, 980 A.2d 124, 129 (Pa. Super. 2009).
We begin by noting that the certified record belies Washington’s claim
that his guilty plea was in any way unknowing, unintelligent, or involuntary.
The certified record contains ample evidence in both the written and oral
colloquies that Washington entered into the guilty plea fully informed and
voluntarily. Washington has filed a pro se “continuation” to counsel’s
Anders brief in which he also asserts his innocence and counsel’s
ineffectiveness. These arguments are unpersuasive. During his guilty plea
colloquy, Washington stated he was satisfied with counsel’s stewardship and
admitted to the acts detailed in the affidavit of probable cause in the
complaint. He cannot now obtain relief by disavowing those statements. “A
person who elects to plead guilty is bound by the statements he makes in
open court while under oath and he may not later assert grounds for
withdrawing the plea which contradict the statements he made at his plea
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colloquy.” Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super.
2003) (citation omitted). Accordingly, Washington cannot demonstrate he
has suffered a manifest injustice and the trial court did not err in denying
Washington’s post-sentence motion to withdraw his guilty plea.
Washington’s second claim is that the trial court erred in denying his
motion to modify his sentence. Specifically, he argues his sentence is
manifestly excessive in that the trial court failed to adequately consider the
requirements of the sentencing code when formulating his sentence. This
claim represents a challenge to the discretionary aspects of his sentence.4
Once again, the certified record belies the claim.
Washington received a minimum sentence of 9 years’ incarceration.
Given his prior record score of five, the offense gravity score of eleven and
the use of a deadly weapon enhancement (machete), the standard range for
a minimum sentence was between 90 and 108 months’ incarceration. Since
9 years is 108 months, Washington received a standard range sentence.
The trial court received and reviewed the presentence investigation report,
heard from both the victim and Washington, and heard argument from both
counsel. The trial judge specifically noted he had considered all of the
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4
The Commonwealth has agreed that this claim raises a substantial
question. See Appellee’s Brief at 11; Commonwealth v. Smith, 863 A.2d
1172, 1177 (Pa. Super. 2004). Therefore, we will not recite the technical
requirements that must be met to challenge the discretionary aspects of a
sentence.
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provisions of the sentencing guidelines, most prominently considering “the
rehabilitative needs of [Washington], the seriousness of the offense, [and]
the possibility of diminishing in the eyes of the community the seriousness of
the offense.” See N.T. Guilty Plea/Sentencing, 1/20/2015, at 16. The trial
judge also noted the “ghastly”, id., nature of the injuries.5 Following our
review of the certified record, we agree with counsel that Washington’s claim
that his sentence is manifestly excessive and that the trial court failed to
consider the statutory sentencing requirements is frivolous. Washington is
not entitled to relief on this claim.
Motion to withdraw as counsel is granted. Application for relief is
denied. Judgment of sentence is affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/28/2015
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5
The certified record contains the photographs of the victim’s injuries that
show severe gashes, quite possibly to the bone, to the victims arm and
knee. We believe that “ghastly” is an appropriate description. The wounds
were inflicted early in the morning when Washington let himself into the
victim’s home and initially attacked her as she slept.
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