Com. v. Davis, H.

J-S13013-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HYKEEM DAVIS,
Appellant No. 1641 EDA 2016
Appeal from the Judgment of Sentence Entered December 16, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002632-2015
BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 18, 2017
Appellant, Hykeem Davis, appeals from the judgment of sentence of 1
to 23 months’ incarceration, followed by 2 years’ probation, imposed after
he pled guilty to simple assault and resisting arrest. On appeal, Appellant
seeks to challenge the trial court’s denial of his post-sentence motion to
withdraw his guilty plea. However, his counsel, David M. Simon, Esq., has
concluded that this claim is frivolous and, therefore, counsel has filed a
petition to withdraw his representation of Appellant pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009). After careful review, we affirm Appellant’s judgment of
sentence and grant counsel’s petition to withdraw.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S13013-17
We briefly summarize the facts underlying Appellant’s conviction as
follows. On February 26, 2015, at approximately 7:00 a.m., a Temple
University Police Officer observed Appellant commit multiple motor vehicle
infractions, including traveling through a red traffic signal and failing to stop
at a stop sign. See Trial Court Opinion (TCO), 9/15/16, at 2 (unnumbered;
citation to the record omitted). The officer called for backup, and with the
assistance of two other officers, they conducted a traffic stop of Appellant’s
vehicle. Id. During the stop, Appellant became irate and began to drive
away, running over one officer’s foot. Id. After a short pursuit, the officers
were able to force Appellant to stop his vehicle. Id. Appellant then exited
his car, aggressively approached the officers, and resisted as they attempted
to arrest him. Id. Ultimately, it took several officers to subdue Appellant
and place him into custody. Id.
On December 16, 2015, Appellant, who was represented by Attorney
Simon, entered a negotiated guilty plea, by which he pled guilty to resisting
arrest and simple assault in exchange for a sentence of 1 to 23 months’
incarceration with immediate parole, followed by a term of 2 years’
probation. Shortly thereafter, Appellant filed a post-sentence motion
seeking to withdraw his plea. “The basis for seeking withdrawal was the
decision of the Probation Department to place [Appellant] on high-risk
probation, which he asserted included unspecified ‘additional obligations
above and beyond the negotiated sentence.’” TCO at 3 (unnumbered). On
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April 21, 2016, Appellant’s motion to withdraw his guilty plea was denied by
operation of law.
Appellant filed a timely notice of appeal. On June 6, 2016, the trial
court issued an order directing Appellant to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. That order informed Appellant
that “[a]ny issue not properly included in the statement, timely filed and
served, shall be deemed waived.” Trial Court Order, 6/6/16. Nevertheless,
Appellant’s counsel, Attorney Simon, never filed a Rule 1925(b) statement
on Appellant’s behalf. On September 15, 2016, the trial court filed a Rule
1925(a) opinion, concluding that Appellant had waived any issue(s) he
sought to raise on appeal. See TCO at 3 (unnumbered). Nevertheless, the
court provided an alternative analysis of the issue Appellant presented in his
post-sentence motion to withdraw his guilty plea, concluding that it is
meritless. See id. at 3-5 (unnumbered).
On December 11, 2016, Attorney Simon filed with this Court a petition
to withdraw from representing Appellant. He has also filed an Anders brief,
asserting that the issue Appellant raised in his post-sentence motion to
withdraw his guilty plea is frivolous, and that Appellant has no other, non-
frivolous issues he could assert on appeal.
This Court must first pass upon counsel's petition to withdraw
before reviewing the merits of the underlying issues presented
by [the appellant]. Commonwealth v. Goodwin, 928 A.2d
287, 290 (Pa. Super. 2007) (en banc).
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Prior to withdrawing as counsel on a direct appeal under
Anders, counsel must file a brief that meets the requirements
established by our Supreme Court in Santiago. The 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.
Santiago, 978 A.2d at 361. Counsel also must provide a copy of
the Anders brief to his client. Attending the brief must be a
letter that advises the client of his right to: “(1) retain new
counsel to pursue the appeal; (2) proceed pro se on appeal; or
(3) raise any points that the appellant deems worthy of the
court[']s attention in addition to the points raised by counsel in
the Anders brief.” Commonwealth v. Nischan, 928 A.2d 349,
353 (Pa. Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40
(2007).
Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa. Super. 2014).
After determining that counsel has satisfied these technical requirements of
Anders and Santiago, this Court must then “conduct an independent
review of the record to discern if there are any additional, non-frivolous
issues overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d
1246, 1250 (Pa. Super. 2015) (citations and footnote omitted).
In this case, Attorney Simon’s Anders brief complies with the above-
stated requirements. Namely, he includes a summary of the relevant factual
and procedural history, he refers to portions of the record that could
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arguably support Appellant’s claim, and he sets forth his conclusion that
Appellant’s appeal is frivolous. He also explains his reasons for reaching that
determination, and supports his rationale with citations to the record and
pertinent legal authority. Attorney Simon also states in his petition to
withdraw that he has supplied Appellant with a copy of his Anders brief, and
he attaches a letter directed to Appellant in which he informs him of the
rights enumerated in Nischan. Accordingly, counsel has complied with the
technical requirements for withdrawal. We must now independently review
the record to determine if Appellant’s issue is frivolous, and to ascertain if
there are any other, non-frivolous issues Appellant could pursue on appeal.
Preliminarily, however, we chastise Attorney Simon for not filing a Rule
1925(b) statement on Appellant’s behalf, or a Rule 1925(c)(4) statement of
his intent to file an Anders brief and petition to withdraw. Attorney Simon’s
failure in this regard constitutes per se ineffectiveness, and we could remand
under Rule 1925(c)(3) for counsel to file a statement nunc pro tunc.
However, we decline to do so in this case, as the trial court addressed in its
Rule 1925(a) opinion the only issue Appellant seeks to raise on appeal. See
Commonwealth v. Thompson, 39 A.3d 335, 340 (Pa. Super. 2012)
(stating that, where the trial court has addressed the issues sought to be
raised on appeal, we need not remand for the filing of a concise statement
nunc pro tunc).
In that issue, Appellant contends that the trial court should have
granted his post-sentence motion to withdraw his guilty plea. We begin by
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recognizing that a post-sentence motion to withdraw a guilty plea is “subject
to higher scrutiny” than a pre-sentence withdrawal motion, “since courts
strive to discourage entry of guilty pleas as sentence-testing devices.”
Commonwealth v. Broaden, 980 A.2d 124, 129 (Pa. Super. 2009)
(citation omitted). “A defendant must demonstrate that manifest injustice
would result if the court were to deny his post-sentence motion to withdraw
a guilty plea.” Id. (citation omitted). “Manifest injustice may be established
if the plea was not tendered knowingly, intelligently, and voluntarily.” Id.
(citations omitted).
In Appellant’s post-sentence motion, which was drafted by Attorney
Simon, counsel averred that Appellant should be permitted to withdraw his
guilty plea because the probation department has imposed stricter
conditions on Appellant’s term of probation than he anticipated he would
receive. However, Attorney Simon never explicitly stated what those
stricter conditions are; instead, counsel simply declared that Appellant has
been placed on “high-risk probation” and, “[a]s a result…, he must fulfill
additional obligations above and beyond the negotiated sentence.” Post-
Sentence Motion, 12/23/15, at 2. Because Attorney Simon failed to identify
the specific, ‘additional obligations’ that have ostensibly been imposed upon
Appellant, we cannot concluded that Appellant’s negotiated plea agreement
was violated. Therefore, the trial court did not err in denying Appellant’s
post-sentence motion to withdraw his guilty plea.
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In sum, based on Attorney Simon’s own insufficient pleading in
Appellant’s post-sentence motion, we are compelled to deem frivolous the
issue Appellant now seeks to raise on appeal.1 Additionally, our independent
review of the record reveals no other, non-frivolous issues that Appellant
could raise herein. Thus, we affirm his judgment of sentence and reluctantly
grant Attorney Simon’s petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/18/2017
____________________________________________
1
While we express no opinion on the merits of the matter, we note that
Appellant can challenge the effectiveness of Attorney Simon’s representation
in a timely-filed petition under the Post Conviction Relief Act (PCRA), 42
Pa.C.S. §§ 9541-9546.
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