Com. v. Ward, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JESSICA LYNNE WARD, :
:
Appellant : No. 265 WDA 2016
Appeal from the Judgment of Sentence January 19, 2016
in the Court of Common Pleas of Clearfield County,
Criminal Division, No(s): CP-17-CR-0000543-2015
BEFORE: PANELLA, LAZARUS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 16, 2016
Jessica Lynne Ward (“Ward”) appeals from the judgment of sentence
imposed following her negotiated guilty plea to one count of recklessly
endangering another person (“REAP”).1 Additionally, Curtis J. Irwin, Esquire
(“Attorney Irwin”), Ward’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 Irwin’s Petition to Withdraw and
affirm Ward’s judgment of sentence.
On May 20, 2015, Ward was charged with one count of endangering
the welfare of a child, after becoming overly intoxicated while her two-year-
old son was in her sole care. On the day that jury selection was scheduled
to begin, Ward entered a negotiated guilty plea to one count of REAP. In
1
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exchange for the plea, Ward was to receive a sentence of probation. The
trial court accepted the plea.
Prior to sentencing, Ward filed a Petition to Withdraw Plea. The trial
court denied the Petition, and thereafter sentenced Ward to a two-year term
of probation, and ordered her to participate in alcohol and drug treatment.
Ward filed a timely Notice of Appeal, and a court-ordered Concise
Statement of errors complained of on appeal.
In the Anders Brief, Ward raises the following questions for our
review:
I. Whether the [trial court] erred when, on January 19, 2016, it
denied [Ward’s] Petition to Withdraw Plea and did not permit
[Ward] to withdraw her negotiated plea[?]
II. Whether the [trial court] erred when, on January 19, 2016, it
sentenced [Ward] in accordance with the negotiated plea
agreement[,] despite [Ward] filing a Petition to Withdraw Plea
and stating on the record that she did not understand the
plea agreement when it was executed and/or that she had not
committed the crime of [REAP?]
Anders Brief at 7. On May 20, 2015, Attorney Irwin filed a Petition to
Withdraw as Counsel. Ward did not file a separate pro se brief, nor did she
retain alternate counsel for this appeal.
We must first determine whether Attorney Irwin 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
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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) petition 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 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 Irwin complied with each of the requirements set forth
in Anders by petitioning this Court for leave to withdraw, submitting an
Anders Brief referring to any issue that may have arguable merit, and
notifying Ward of the request to withdraw and advising her as to her rights
moving forward. Further, the Anders Brief meets the standards set forth in
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Santiago by providing a factual summary of Ward’s case, with support for
Attorney Irwin’s conclusion that the trial court properly denied the Petition to
Withdraw Plea, rendering Ward’s appeal wholly frivolous. Because Attorney
Irwin has complied with the procedural requirements for withdrawing from
representation, we will independently review the record to determine
whether Ward’s appeal is, in fact, wholly frivolous.
As Ward’s claims are related, we will address them together. Ward
contends that the Petition to Withdraw Plea was improperly denied because
she did not fully understand the plea colloquy. Anders Brief at 11-13.
Ward points out that because her Petition was filed prior to sentencing, the
trial court should have liberally allowed withdrawal of the plea. Id. at 12.
“Our law is clear that to be valid, a guilty plea must be knowingly,
voluntarily and intelligently entered.” Commonwealth v. Bedell, 954 A.2d
1209, 1212 (Pa. Super. 2008). This Court has established six topics that
must be covered by a valid plea colloquy: “1) the nature of the charges, 2)
the factual basis for the plea, 3) the right to a jury trial, 4) the presumption
of innocence, 5) the sentencing ranges, and 6) the plea court’s power to
deviate from any recommended sentence.” Commonwealth v. Morrison,
878 A.2d 102, 107 (Pa. Super. 2005); see also Pa.R.Crim.P. 590, cmt.
“At any time before the imposition of sentence, the court may, in its
discretion, permit, upon motion of the defendant, or direct, sua sponte, the
withdrawal of a plea of guilty or nolo contendere and the substitution of a
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plea of not guilty.” Pa.R.Crim.P. 591(A); see also Commonwealth v.
Gordy, 73 A.3d 620, 624 (Pa. Super. 2013) (stating that “the decision to
grant or deny a motion to withdraw a guilty plea rests within the trial court’s
discretion, and we will not disturb the court’s decision on such motion unless
the court abused that discretion.”) (citation omitted). Additionally, while
there is no absolute right to withdraw a guilty plea, “[a] pre-sentence motion
to withdraw a guilty plea should be liberally allowed and should be granted
for any fair and just reason unless granting the motion would cause
substantial prejudice to the Commonwealth.” Gordy, 73 A.3d at 623-24;
see also Commonwealth v. Carrasquillo, 115 A.3d 1284, 1292 (Pa.
2015).
More broadly, the proper inquiry on consideration of such a
withdrawal motion is whether the accused has made some
colorable demonstration, under the circumstances, such that
permitting withdrawal of the plea would promote fairness and
justice. The policy of liberality remains extant but has its limits,
consistent with the affordance of a degree of discretion to the
common pleas courts.
Carrasquillo, 115 A.3d at 1292.
In her Petition to Withdraw Plea, Ward failed to assert any specific
claim in support of withdrawal. At oral arguments regarding the Petition to
Withdraw Plea, Ward stated that the reason for seeking withdrawal of the
plea was her lack of understanding of the guilty plea colloquy. N.T.,
1/19/16, at 4.
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Our review discloses that Ward completed extensive guilty plea
colloquies, both written and oral, covering all necessary topics for a valid
plea colloquy. See Written Plea Colloquy, 12/3/15, at 1-6; N.T., 12/3/15, at
4-9; see also Morrison, 878 A.2d at 107. Moreover, Ward stated that she
entered into the agreement voluntarily and intelligently. See Written Plea
Colloquy, 12/3/15, at 6; see also N.T., 12/3/15, at 6 (wherein Ward orally
confirmed her signature on the written colloquy).2
Based on Ward’s statements in the written and oral colloquies, and her
understanding and voluntariness of the plea agreement, the trial court did
2
During the oral plea colloquy, the trial court acknowledged that jury
selection was scheduled for that day, and then asked Ward the following
question: “Do you understand that if the Court accepts your plea that your
jury selection process will be canceled and that you will not be able to
withdraw this plea after today?” N.T., 12/3/15, at 7. Ward answered in the
affirmative, and then noted she wished to proceed with the plea. Id. at 7-8.
The trial court then posed a similar question to Ward’s counsel, to which
counsel replied that he explained the situation to Ward, Ward appeared to
understand, and Ward wished to proceed with the plea. Id. at 9-10.
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not abuse its discretion in denying the Petition to Withdraw Plea based solely
Ward’s unsupported assertion of confusion.3
Further, our independent review discloses no other non-frivolous
issues that Ward could raise on appeal. Accordingly, we grant Attorney
Irwin’s Petition to Withdraw, and affirm Ward’s judgment of sentence.
Petition to Withdraw granted; judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/16/2016
3
In her Concise Statement, Ward contends that she did not commit the
crime of REAP. “An assertion of innocence can constitute a fair and just
reason for plea withdrawal.” Gordy, 73 A.3d at 624. However, “a bare
assertion of innocence is not, in and of itself, a sufficient reason to require a
court to grant such a request.” Carrasquillo, 115 A.3d at 1285; see also
Commonwealth v. Hvizda, 116 A.3d 1103, 1107 (Pa. 2015). “[A]
defendant’s innocence claim must be at least plausible to demonstrate, in
and of itself, a fair and just reason for presentence withdrawal of a plea.”
Carrasquillo, 115 A.3d at 1292. Ward’s “bare assertion of innocence,”
raised for the first time on appeal, is belied by Ward’s statements during the
guilty plea colloquy. See Written Plea Colloquy, 12/3/15, at 1-6; N.T.,
12/3/15, at 4-9; see also Commonwealth v. Yeomans, 24 A.3d 1044,
1047 (Pa. Super. 2011) (stating that “[a] person who elects to plead guilty
is bound by the statements he makes in open court while under oath and
may not later assert grounds for withdrawing the plea which contradict the
statements he made at his plea colloquy.”) (citation omitted).
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