Com. v. Ferguson, E.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EDDIE FERGUSON,
Appellant No. 1263 MDA 2016
Appeal from the Judgment of Sentence April 10, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0004517-2014
BEFORE: SHOGAN, MOULTON, and PLATT,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED MAY 30, 2017
Appellant, Eddie Ferguson, appeals nunc pro tunc from the judgment
of sentence entered following his conviction of aggravated assault.1
Appellate counsel has filed a petition to withdraw his representation and a
brief pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), which govern a
withdrawal from representation on direct appeal. We grant counsel’s
petition to withdraw and affirm the judgment of sentence.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. § 2702(a)(4).
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The trial court summarized the procedural history of this case as
follows:
On May 3, 2014[,] Appellant was arrested and charged,
inter alia, with Criminal Attempt, Homicide, 18 Pa.C.S. § 901 (a),
and Aggravated Assault, 18 Pa.C.S. § 2702(a)(1).[2] On April
10, 2015, Appellant pled nolo contendere to Aggravated Assault
(F2), 18 Pa.C.S. § 2702(a)(4).[3] [Appellant] was immediately
sentenced to a term [of incarceration] of not less than 20
months nor more than 40 months. [Appellant did not file a post-
sentence motion seeking to withdraw the plea.] No direct appeal
was filed from the judgment of sentence.
On December 4, 2015, Appellant filed a pro se Post-
Conviction Collateral Relief Motion and PCRA counsel, R.H. Hawn,
Jr., Esquire, was subsequently appointed. PCRA counsel filed an
Amended PCRA petition on April 28, 2016. A rule was entered
on the Commonwealth and the Commonwealth filed a response
indicating that the Commonwealth did not contest [Appellant’s]
request to be allowed to file an appeal nunc pro tunc. On June
21, 2016, an Order was entered reinstating [Appellant’s]
appellate rights nunc pro tunc.[4] On July 21, 2016 a Notice of
Appeal was filed by the Appellant.
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2
The charges stemmed from Appellant attacking another man with a
machete.
3
In exchange for the plea, the Commonwealth agreed to withdraw the
charge of attempted homicide, amend the charge of aggravated assault from
a Felony-1 to a Felony-2, and recommend a sentence of incarceration of
twenty to forty months. N.T., 4/10/15, at 2.
4
We note that in Commonwealth v. Liston, 977 A.2d 1089 (Pa. 2009),
our Supreme Court held that an order permitting a nunc pro tunc direct
appeal does not automatically permit a nunc pro tunc post-sentence motion.
Id. at 1093-1094. The Liston Court disapproved of that course of action
because it could award certain litigants the right to pursue collateral claims
on direct appeal. Id. The Court explained that the failure to file a post-
sentence motion is not among the few circumstances where courts will
presume prejudice from counsel’s ineffectiveness. Id. at 1092 n.7 (citing
Commonwealth v. Reaves, 923 A.2d 1119, 1125 (Pa. 2007)). Appellant
(Footnote Continued Next Page)
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Trial Court Opinion, 10/4/16, at 1 (footnote omitted). Both Appellant and
the trial court have complied with Pa.R.A.P. 1925.
As noted, counsel has filed a petition to withdraw from representation.
Before we address the questions raised on appeal, we must resolve appellate
counsel’s request to withdraw. Commonwealth v. Cartrette, 83 A.3d
1030 (Pa. Super. 2013) (en banc). There are procedural and briefing
requirements imposed upon an attorney who seeks to withdraw on direct
appeal. The procedural mandates are that counsel must:
1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the brief to the defendant; and 3) advise the defendant that
he or she has the right to retain private counsel or raise
additional arguments that the defendant deems worthy of the
court’s attention.
Id. at 1032 (citation omitted).
In this case, those directives have been satisfied. Within the petition
to withdraw, counsel averred that he conducted a conscientious review of
the record and pertinent legal research. Following that review, counsel
concluded that the present appeal is frivolous. Counsel sent Appellant a
copy of the Anders brief and petition to withdraw, as well as a letter, a copy
_______________________
(Footnote Continued)
therefore needed to plead and prove to the PCRA court that counsel was
ineffective for failing to file a timely post-sentence motion before the PCRA
court could award him the right to file a nunc pro tunc post-sentence
motion.
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of which is attached to the petition to withdraw. In the letter, counsel
advised Appellant that he could represent himself or that he could retain
private counsel. However, the letter did not provide the correct advice to
Appellant. Rather than informing Appellant that he had the right to pursue
the appeal pro se or through privately retained counsel and raise any
additional points that he wished to bring to this Court’s attention, the letter
inaccurately stated that these rights were conditioned upon this Court
granting counsel leave to withdraw. Consequently, in an abundance of
caution, on November 29, 2016, this Court issued an order directing that
Appellant be permitted to file a response to counsel’s petition to withdraw
and Anders brief, either pro se or via privately retained counsel, within
thirty days of the date of our order.5 In a response dated January 4, 2017,6
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5
The complete text of our order follows:
In light of the fact that Appellant’s counsel, R.H. Hawn, Jr.,
Esquire, has filed a petition to withdraw as counsel pursuant to
Anders v. California, 386 U.S. 738 (1967), Commonwealth
v. McClendon, 434 A.2d 1185 (Pa. 1981), and their progeny,
Appellant shall be permitted to file a response to counsel’s
petition to withdraw and Anders brief, either pro se or via
privately retained counsel, within thirty (30) days of the date
that this Order is filed. The Commonwealth’s brief shall be due
sixty (60) days from the date that this Order is filed.
Order, 11/29/16, at 1. We believe that this order served to rectify the
incorrect language contained in counsel’s letter to Appellant. However, we
alert counsel to be more diligent about such matters in the future, and we
will not hesitate to deny an attorney’s request to withdraw from
representation for failure to properly alert the litigant of his or her rights.
(Footnote Continued Next Page)
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Appellant requested to have oral argument7 and a copy of “new case
information.” Response to Order, 1/4/17, at 1-2. On February 8, 2017, this
Court filed a per curiam order denying Appellant’s request for oral argument
and request for a copy of “new case information.” Order, 2/8/17, at 1.
Appellant has not filed any additional documents with this Court.
We now examine whether the brief satisfies the Supreme Court’s
dictates in Santiago, which provide that:
in the Anders brief that accompanies court-appointed counsel’s
petition to withdraw, counsel 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.
Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361).
_______________________
(Footnote Continued)
Cf. Commonwealth v. Muzzy, 141 A.3d 509 (Pa. Super. 2016) (denying
counsel’s request to withdraw for failing to fully and accurately comply with
the requirements in post-conviction matter).
6
Even though this Court did not receive the document for filing until January
9, 2017, pursuant to the “prisoner mailbox rule,” we will use the date of
January 4, 2017 in referencing Appellant’s response because Appellant is
incarcerated and the cover of his document indicates that he placed the item
in the hands of prison authorities on January 4, 2017. See
Commonwealth v. Wilson, 911 A.2d 942, 944 (Pa. Super. 2006)
(recognizing that under the “prisoner mailbox rule,” a document is deemed
filed when placed in the hands of prison authorities for mailing).
7
In his response, Appellant stated that due to his limited resources he could
not explain his “situation” in a brief. Response to Order, 1/4/17, at 1.
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Counsel’s brief is compliant with Santiago. The brief sets forth the
procedural history of this case and outlines pertinent case authority. We
thus conclude that the procedural and briefing requirements for withdrawal
have been met.
Counsel presents the following issue for our review:
1. Is Appellant’s plea of nolo contendere to aggravated assault
void on the grounds of manifest injustice, because he did not
knowingly, intelligently, and voluntarily tender the plea?
Anders Brief at 4.
Appellant’s issue challenges the propriety of his plea. Appellant argues
that his plea should be void due to a manifest injustice. Anders Brief at 8.
Appellant contends that he did not knowingly, intelligently, and voluntarily
enter his plea. Id.We begin our analysis by observing this Court has long explained that
in “terms of its effect upon a case, a plea of nolo contendere is treated the
same as a guilty plea.” Commonwealth v. Laszczynski, 715 A.2d 1185,
1187 n. 3 (Pa. Super. 1998) (quoting Commonwealth v. Nelson, 666 A.2d
714, 717 (Pa. Super. 1995)). With respect to challenges to the validity of a
guilty plea on direct appeal, this Court has stated the following:
Settled Pennsylvania law makes clear that by entering a
guilty plea, the defendant waives his right to challenge on direct
appeal all nonjurisdictional defects except the legality of the
sentence and the validity of the plea.
Indeed, a defendant routinely waives a plethora of
constitutional rights by pleading guilty, including the
right to a jury trial by his peers, the right to have the
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Commonwealth prove his guilt beyond a reasonable
doubt, and his right to confront any witnesses
against him. Furthermore, a defendant is permitted
to waive fundamental constitutional protections in
situations involving far less protection of the
defendant than that presented herein.
A defendant wishing to challenge the voluntariness of a guilty
plea on direct appeal must either object during the plea colloquy
or file a motion to withdraw the plea within ten days of
sentencing. Failure to employ either measure results in waiver.
Historically, Pennsylvania courts adhere to this waiver principle
because it is for the court which accepted the plea to consider
and correct, in the first instance, any error which may have been
committed. Commonwealth v. Roberts, 237 Pa. Super. 336,
352 A.2d 140, 141 (1975) (holding that common and previously
condoned mistake of attacking guilty plea on direct appeal
without first filing petition to withdraw plea with trial court is
procedural error resulting in waiver; stating, “(t)he swift and
orderly administration of criminal justice requires that lower
courts be given the opportunity to rectify their errors before they
are considered on appeal”; “Strict adherence to this procedure
could, indeed, preclude an otherwise costly, time consuming,
and unnecessary appeal to this court”).
Likewise:
Normally, issues not preserved in the trial court may
not be pursued before this Court. Pa.R.A.P. 302(a).
For example, a request to withdraw a guilty plea on
the grounds that it was involuntary is one of the
claims that must be raised by motion in the trial
court in order to be reviewed on direct appeal.
Similarly, challenges to a court’s sentencing
discretion must be raised during sentencing or in a
post-sentence motion in order for this Court to
consider granting allowance of appeal. Moreover, for
any claim that was required to be preserved, this
Court cannot review a legal theory in support of that
claim unless that particular legal theory was
presented to the trial court. Thus, even if an
appellant did seek to withdraw pleas or to attack the
discretionary aspects of sentencing in the trial court,
the appellant cannot support those claims in this
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Court by advancing legal arguments different than
the ones that were made when the claims were
preserved.
Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super.
2008), appeal denied, 601 Pa. 696, 972 A.2d 521 (2009).
Further, a defendant who attempts to withdraw a
guilty plea after sentencing must demonstrate
prejudice on the order of manifest injustice before
withdrawal is justified. A plea rises to the level of
manifest injustice when it was entered into
involuntarily, unknowingly, or unintelligently.
Commonwealth v. Lincoln, 72 A.3d 606, 609-610 (Pa. Super. 2013)
(some citations and quotation marks omitted).
Our review of the certified record reflects that Appellant did not
preserve his challenge to the voluntariness of his plea by either objecting
during the plea colloquy or filing a timely post-sentence motion to withdraw
the plea. Pa.R.Crim.P. 720(B)(1)(a)(i). Accordingly, Appellant waived any
challenge to his nolo contendere plea on direct appeal. Lincoln, 72 A.3d at
609-610.
We also have independently reviewed the record in order to determine
whether there are any non-frivolous issues present in this case that
Appellant may raise. Commonwealth v. Harden, 103 A.3d 107, 111 (Pa.
Super. 2014). Having concluded that there are no meritorious issues, we
grant Appellant’s counsel permission to withdraw, and we affirm the
judgment of sentence.
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Petition of counsel to withdraw is granted. Judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/30/2017
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