Com. v. Miller, M.

J-S25039-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MARIA BETH MILLER :
:
Appellant : No. 308 WDA 2022
Appeal from the Judgment of Sentence Entered February 17, 2022
In the Court of Common Pleas of Blair County
Criminal Division at No(s): CP-07-CR-0002478-2021
BEFORE: BENDER, P.J.E., DUBOW, J., and KING, J.
MEMORANDUM BY KING, J.: FILED: OCTOBER 21, 2022
Appellant, Maria Beth Miller, appeals from the judgment of sentence
entered in the Blair County Court of Common Pleas, following her negotiated
guilty plea to terroristic threats and disorderly conduct.1 We affirm and grant
counsel’s application to withdraw.
The relevant facts and procedural history of this appeal are as follows.
During the early morning hours of October 7, 2021, Pennsylvania State Police
Troopers Sneath and Yost responded to a report of “shots fired” in the parking
lot of Dilly’s Bar in Greenfield Township. The report indicated that the shooter
was a woman driving a red Jeep Cherokee. Subsequent investigation revealed
that Appellant was the shooter, and she fired the shots after threatening to
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1 18 Pa.C.S.A. §§ 2706(a)(1), 5503(a)(4).
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kill another bar patron. That same day, the troopers took Appellant into
custody, and she provided the following statement: “I left, got into my car,
and was very upset and took my pistol and shot it at the ground. No one was
outside.” (Affidavit of Probable Cause, dated 10/7/21, at 2).
The Commonwealth filed a criminal information charging Appellant with
two counts of terroristic threats and one count each of recklessly endangering
another person, disorderly conduct, and public drunkenness. On February 17,
2022, Appellant entered a negotiated guilty plea to one count each of
terroristic threats and disorderly conduct. In exchange, the Commonwealth
agreed to the dismissal of the remaining charges and the imposition of an
aggregate term of two years’ probation. (See N.T. Plea Hearing, 2/17/22, at
1). The court accepted Appellant’s plea and imposed the agreed-upon
sentence of two years’ probation. Appellant did not file post-sentence
motions.
Appellant timely filed a notice of appeal on March 10, 2022. On March
24, 2022, the court ordered Appellant to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. On March 30, 2022, counsel
timely filed a Rule 1925(c)(4) statement of intent to file an Anders2 brief.
Thereafter, counsel filed an application to withdraw and an Anders brief with
this Court.
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2 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
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Preliminarily, counsel seeks to withdraw representation pursuant to
Anders and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349(2009). Anders and Santiago require counsel to: (1) petition the Court for
leave to withdraw, certifying that after a thorough review of the record,
counsel has concluded the issues to be raised are wholly frivolous; (2) file a
brief referring to anything in the record that might arguably support the
appeal; and (3) furnish a copy of the brief to the appellant and advise her of
her right to obtain new counsel or file a pro se brief to raise any additional
points the appellant deems worthy of review. Santiago, supra at 173-79,
978 A.2d at 358-61. “Substantial compliance with these requirements is
sufficient.” Commonwealth v. Reid, 117 A.3d 777, 781 (Pa.Super. 2015).
After establishing that counsel has met the antecedent requirements to
withdraw, this Court makes an independent review of the record to confirm
that the appeal is wholly frivolous. Commonwealth v. Palm, 903 A.2d 1244,
1246 (Pa.Super. 2006). See also Commonwealth v. Dempster, 187 A.3d
266 (Pa.Super. 2018) (en banc).
In Santiago, supra, our Supreme Court addressed the briefing
requirements where court-appointed appellate counsel seeks to withdraw
representation:
Neither Anders nor [Commonwealth v. McClendon, 495
Pa. 467, 434 A.2d 1185 (1981)] 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
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appeal.
* * *
Under Anders, the right to counsel is vindicated by
counsel’s examination and assessment of the record and
counsel’s reference to anything in the record that arguably
supports the appeal.
Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:
[I]n 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.
Id. at 178-79, 978 A.2d at 361.
Instantly, counsel has filed an application to withdraw. The application
states that counsel has conducted a careful review of the record and
determined that the appeal is wholly frivolous. Counsel also supplied
Appellant with a copy of the Anders brief and a letter explaining Appellant’s
right to retain new counsel or to proceed pro se to raise additional issues
Appellant deems worthy of this Court’s attention.
In the Anders brief, counsel summarized the relevant procedural
history of the case. The argument section of the brief refers to relevant case
law and portions of the record that might arguably support Appellant’s issue.
Counsel also provides the reasons for his conclusion that the appeal is wholly
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frivolous. Therefore, counsel has substantially complied with the technical
requirements of Anders and Santiago.
Appellant has not responded to the Anders brief pro se or with newly
retained private counsel. Counsel raises the following issue on Appellant’s
behalf:
Whether counsel should be permitted to withdraw as a
review of the [record] shows that there are no non-frivolous
issues for appeal as it presents no meritorious points.
(Anders Brief at viii).
On appeal, Appellant argues that she is actually innocent. Appellant
concludes that this Court should permit her to withdraw her plea on this basis.
We disagree.
“[T]o preserve an issue related to a guilty plea, an appellant must either
‘object at the sentence colloquy or otherwise raise the issue at the sentencing
hearing or through a post-sentence motion.’” Commonwealth v. Monjaras-
Amaya, 163 A.3d 466, 468-69 (Pa.Super. 2017) (quoting Commonwealth
v. D’Collanfield, 805 A.2d 1244, 1246 (Pa.Super. 2002)). “Failure to employ
either measure results in waiver.” Commonwealth v. Lincoln, 72 A.3d 606,
610 (Pa.Super. 2013), appeal denied, 624 Pa. 688, 87 A.3d 319 (2014).
“Historically, Pennsylvania courts adhere to this waiver principle because ‘[i]t
is for the court which accepted the plea to consider and correct, in the first
instance, any error which may have been committed.’” Id. (quoting
Commonwealth v. Roberts, 352 A.2d 140, 141 (Pa.Super. 1975)).
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Generally, the entry of a guilty plea constitutes a waiver of all defects
and defenses except lack of jurisdiction, invalidity of the plea, and legality of
the sentence. Commonwealth v. Main, 6 A.3d 1026 (Pa.Super. 2010). “[A]
defendant who attempts to withdraw a guilty plea after sentencing must
demonstrate prejudice on the order of manifest injustice before withdrawal is
justified.” Commonwealth v. Pantalion, 957 A.2d 1267, 1271 (Pa.Super.
2008). “A plea rises to the level of manifest injustice when it was entered into
involuntarily, unknowingly, or unintelligently.” Id. (quoting Commonwealth
v. Muhammad, 794 A.2d 378, 383 (Pa.Super. 2002)).
Our Rules of Criminal Procedure mandate that pleas are taken in open
court and the court must conduct an on-the-record colloquy to ascertain
whether a defendant is aware of her rights and the consequences of her plea.
Commonwealth v. Hodges, 789 A.2d 764 (Pa.Super. 2002). Specifically,
the court must affirmatively demonstrate a defendant understands: (1) the
nature of the charges to which she is pleading guilty; (2) the factual basis for
the plea; (3) her right to trial by jury; (4) the presumption of innocence; (5)
the permissible ranges of sentences and fines possible; and (6) that the judge
is not bound by the terms of the agreement unless the judge accepts the
agreement. Commonwealth v. Watson, 835 A.2d 786 (Pa.Super. 2003).
This 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. Muhammad, supra. A
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guilty plea will be deemed valid if an examination of the totality of the
circumstances surrounding the plea shows that the defendant had a full
understanding of the nature and consequences of her plea such that she
knowingly and intelligently entered the plea of her own accord.
Commonwealth v. Rush, 909 A.2d 805 (Pa.Super. 2006).
Pennsylvania law presumes a defendant who entered a guilty plea was
aware of what she was doing and bears the burden of proving otherwise.
Commonwealth v. Pollard, 832 A.2d 517 (Pa.Super. 2003). A defendant
who decides to plead guilty is bound by the statements she makes while under
oath and “may not later assert grounds for withdrawing the plea which
contradict the statements [she] made at [her] plea colloquy.” Id. at 523.
“Our law does not require that a defendant be totally pleased with the outcome
of [her] decision to plead guilty, only that [her] decision be voluntary, knowing
and intelligent.” Id. at 524.
Instantly, Appellant entered her plea on February 17, 2022. At the
conclusion of the plea hearing, the court accepted Appellant’s plea and
immediately imposed the agreed-upon probationary sentence. Following the
imposition of sentence, Appellant did not raise any objection to the entry of
her plea. (See N.T. Plea Hearing at 3). Thereafter, the court entered
Appellant’s sentencing order, which included notice of Appellant’s right to file
a notice of appeal or a post-sentence motion. (See Sentencing Order, dated
2/17/22, at 4-5). Appellant did not file a post-sentence motion seeking to
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withdraw the plea. Consequently, Appellant has waived her challenge to the
entry of the plea. See Monjaras-Amaya, supra; Lincoln, supra.Moreover, the court conducted an on-the-record colloquy at the plea
hearing. At that time, Appellant confirmed her understanding of the
proceedings and the terms of the plea agreement. (See N.T. Plea Hearing at
1). Appellant indicated that she wanted to plead guilty to the offenses at
issue, which were graded as misdemeanors, in exchange for the dismissal of
the more serious charges. (Id. at 1-2). Appellant stated that no one had
forced her into entering the plea, and she was not under the influence of
anything that prevented her from understanding the consequences of her
plea. (Id. at 2). Further, Appellant admitted to the factual basis for the plea,
and she confirmed her understanding of the right to a jury trial and the
presumption of innocence. (Id.)
Under the totality of these circumstances, Appellant entered a knowing,
voluntary, and intelligent guilty plea. See Rush, supra; Muhammad,
supra. Thus, Appellant cannot demonstrate prejudice on the order of
manifest injustice to justify the withdrawal of her plea. See Pantalion,
supra. Following our independent review of the record, we agree the appeal
is wholly frivolous. See Dempster, supra; Palm, supra. Accordingly, we
affirm the judgment of sentence and grant counsel’s petition to withdraw.
Judgment of sentence affirmed. Counsel’s petition to withdraw is
granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/21/2022
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