Com. v. Hall, R.

J-S09008-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ROBERT HALL,
Appellant No. 3351 EDA 2015
Appeal from the Judgment of Sentence June 8, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007247-2013
BEFORE: SHOGAN, STABILE, and PLATT,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED MARCH 29, 2017
Appellant, Robert Hall,1 appeals from the judgment of sentence
entered following his entry of a guilty plea to theft by unlawful taking. 2
Appellant’s counsel has filed a petition seeking to withdraw her
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. Appellant has not
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
In the guilty plea transcript, Appellant is at times identified as Robert Hall,
and at other times identified as Robert Young. The transcript indicates that
Appellant is known by both names. N.T., 6/8/15, at 89.
2
18 Pa.C.S. § 3921(a).
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filed a response to counsel’s petition. After careful review, we grant
counsel’s petition to withdraw and affirm Appellant’s judgment of sentence.
The trial court summarized the factual and procedural history of this
case as follows:
On May 16, 2013, police arrested Appellant and charged
him with Burglary and related charges. On June 8, 2015, after
Appellant’s Motion to Suppress was denied and prior to
proceeding to a jury trial, Appellant indicated his desire to enter
a nolo contendere plea. Appellant, represented by counsel,
entered into a negotiated nolo contendere plea to Theft By
Unlawful Taking (F3). The Commonwealth entered a nolle
prosequi on the other charges. Appellant negotiated with the
Commonwealth for a recommendation of sentence consisting of
time served to 23 months followed by twelve months reporting
probation.
This court conducted a thorough colloquy of Appellant.
During the colloquy, Appellant was specifically informed of the
crime and facts to which he was pleading nolo contendere; he
acknowledged that he understood them. He was informed by
the court of the maximum penalties for the crime to which he
pleaded nolo contendere. He acknowledged that he entered this
plea knowingly, intelligently and voluntarily. He understood that
a jury was waiting for selection in his case, and he understood
his right to go forward with that selection process. The court
informed [Appellant] that he is presumed innocent and the
Commonwealth bears the burden of proving him guilty beyond a
reasonable doubt. In addition, Appellant in writing, again
confirmed his nolo contendere plea . . . by initialing each page
and signing at the bottom of the third. This court accepted
Appellant’s nolo contendere plea. Defense counsel then agreed
to immediate sentencing. Appellant did not file a motion to
withdraw his plea prior to sentencing, or indicate any desire to
do so. This court then sentenced the Appellant to the negotiated
sentence of time served to 23 months followed by twelve months
reporting probation.
On June 17, 2015, after sentencing, Appellant filed a Post
Sentence Motion, namely a Petition to Withdraw Nolo
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Contendere Plea. The Motion was denied by operation of law on
November 2, 2015. On November 4, 2015, Appellant filed a
Notice of Appeal to the Superior Court. On November 13, 2015,
this [c]ourt issued an order pursuant to Pa.R.A.P. Rule 1925(b)
requiring the Appellant to file a concise statement of matters
complained of on appeal within 21 days. On December 4, 2015,
Appellant filed his 1925(b) statement arguing that this [c]ourt
erred in not allowing Appellant to withdraw his guilty plea after
sentencing, where Appellant had asserted his innocence and that
he did not fully understand the consequences of the plea.
Trial Court Opinion, 6/15/16, at 1-2 (unnumbered) (internal citations
omitted).
Before we address the question raised on appeal, we must resolve
appellate counsel’s request to withdraw. Commonwealth v. Cartrette, 83
A.3d 1030, 1032 (Pa. Super. 2013) (en banc). There are procedural and
briefing requirements imposed upon an attorney who seeks to withdraw on
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, counsel has satisfied those directives. Within her petition
to withdraw, counsel averred that she conducted a conscientious review of
the record and concluded that the present appeal is wholly frivolous.
Counsel sent Appellant a copy of the Anders brief and petition to withdraw,
as well as a letter, a copy of which is attached to the petition. In the letter,
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counsel advised Appellant that he could represent himself or that he could
retain private counsel to represent him.
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).
Counsel’s brief is compliant with Santiago. It sets forth the factual
and procedural history of this case, outlines pertinent case authority, cites to
the record, and refers to an issue of arguable merit. Anders Brief at 3-11.
Further, the brief sets forth counsel’s conclusion that the appeal is frivolous
and the reasons for counsel’s conclusion. Id.
The sole issue raised in the Anders brief is as follows: “Was it error
for the trial court to deny [Appellant’s] post-sentence motion to withdraw his
nolo contendere plea?” Anders Brief at 3. Specifically Appellant asserts
that he did not fully understand the consequences of his plea, and the denial
of his request to withdraw the plea constituted a manifest injustice. Id. at
9.
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We have held that the entry of a guilty plea results in the waiver of all
defects and defenses, except for those that challenge the jurisdiction of the
court, the validity of the guilty plea, or the legality of the sentence.
Commonwealth v. Main, 6 A.3d 1026, 1028 (Pa. Super. 2010). Herein,
Appellant challenges the validity of his plea.
Two different standards exist for reviewing requests to withdraw a
guilty plea, one for pre-sentence requests to withdraw and one for post-
sentence requests to withdraw. Commonwealth v. Flick, 802 A.2d 620,
623 (Pa. Super. 2002). Here, Appellant sought to withdraw his plea after
sentencing. This Court has declared:
[P]ost-sentence motions for withdrawal are subject to higher
scrutiny since courts strive to discourage entry of guilty pleas as
sentence-testing devices. A defendant must demonstrate that
manifest injustice would result if the court were to deny his
postsentence motion to withdraw a guilty plea. Manifest
injustice may be established if the plea was not tendered
knowingly, intelligently, and voluntarily. In determining whether
a plea is valid, the court must examine the totality of
circumstances surrounding the plea. A deficient plea does not
per se establish prejudice on the order of manifest injustice.
Commonwealth v. Broaden, 980 A.2d 124, 129 (Pa. Super. 2009)
(internal citations omitted).
Our law is clear that, to be valid, a guilty plea must be
knowingly, voluntarily and intelligently entered. There is no
absolute right to withdraw a guilty plea, and the decision as to
whether to allow a defendant to do so is a matter within the
sound discretion of the trial court.
Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa. Super. 2008).
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In order to ensure a voluntary, knowing, and intelligent plea, trial
courts are required to ask the following questions in the guilty plea colloquy:
1) Does the defendant understand the nature of the charges
to which he or she is pleading guilty or nolo contendere?
2) Is there a factual basis for the plea?
3) Does the defendant understand that he or she has the
right to a trial by jury?
4) Does the defendant understand that he or she is presumed
innocent until found guilty?
5) Is the defendant aware of the permissible range of
sentences and/or fines for the offenses charged?
6) Is the defendant aware that the judge is not bound by the
terms of any plea agreement tendered unless the judge accepts
such agreement?
7) Does the defendant understand that the Commonwealth
has a right to have a jury decide the degree of guilt if defendant
pleads guilty to murder generally?
Pa.R.Crim.P. 590, cmt.; Commonwealth v. Pollard, 832 A.2d 517, 522–
523 (Pa. Super. 2003).
As this Court has explained:
In order for a guilty plea to be constitutionally valid, the guilty
plea colloquy must affirmatively show that the defendant
understood what the plea connoted and its consequences. This
determination is to be made by examining the totality of the
circumstances surrounding the entry of the plea. Thus, even
though there is an omission or defect in the guilty plea colloquy,
a plea of guilty will not be deemed invalid if the circumstances
surrounding the entry of the plea disclose that the defendant had
a full understanding of the nature and consequences of his plea
and that he knowingly and voluntarily decided to enter the plea.
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Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011).
Additionally, a written plea colloquy that is read, completed, and signed by
the defendant, and made part of the record, may serve as the defendant’s
plea colloquy when supplemented by an oral, on-the-record examination.
Commonwealth v. Morrison, 878 A.2d 102, 108-109 (Pa. Super. 2005)
(citing Pa.R.Crim.P. 590, cmt.). “Our law presumes that a defendant who
enters a guilty plea was aware of what he was doing. He bears the burden
of proving otherwise.” Pollard, 832 A.2d at 523 (internal citation omitted).
In addressing Appellant’s claim, the trial court provided the following
analysis:
[T]here is no evidence in the record that Appellant entered the
plea unknowingly, unintelligently, involuntarily, or without an
understanding of the nature of the charges against him or the
terms of the plea agreement. Appellant was specifically
informed of the crimes and facts to which he was pleading nolo
contendere; he acknowledged that he understood them. He was
informed by the court of the maximum penalties for the crime to
which he pleaded nolo contendere. He acknowledged that he
entered his plea knowingly, intelligently and voluntarily. He
understood that a jury was waiting for selection in his case, and
he understood his right to go forward with that selection
process. The court informed [Appellant] that he is presumed
innocent and the Commonwealth bears the burden of proving
him guilty beyond a reasonable doubt. In addition, Appellant in
writing, again confirmed his nolo contendere plea . . . by
initialing each page and signing at the bottom of the third.
As such, this [c]ourt concluded that the Appellant failed to
establish that “manifest injustice” would result if the plea [was]
not withdrawn and the motion was properly denied.
Trial Court Opinion, 6/15/16, at 3-4 (unnumbered) (internal citations
omitted).
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We agree with the trial court’s conclusion. In accepting Appellant’s
plea, the trial court conducted an on-the-record guilty plea colloquy that
covered the elements set forth in Pa.R.Crim.P 590. N.T., 6/8/15, at 89-98.
Appellant also executed a written guilty plea colloquy. The totality of
circumstances surrounding the plea supports the conclusion that Appellant
knowingly, voluntarily, and intelligently entered his guilty plea. Moreover,
Appellant has failed to carry the burden of proving otherwise. Pollard, 832
A.2d at 523. Accordingly, we discern no abuse of discretion in the trial
court’s denial of Appellant’s post-sentence motion to withdraw his guilty
plea.3
Counsel’s petition to withdraw granted. Judgment of sentence
affirmed.
____________________________________________
3
To the extent that Appellant attempts to argue that the trial court erred in
failing to allow him to withdraw his nolo contendere plea post-sentence
where he asserted his innocence, Anders Brief at 8, we observe that our
Court has ruled that a post-sentence assertion of innocence, alone, was not
enough to demonstrate the manifest injustice necessary to secure a post-
sentence withdrawal of a guilty plea. Commonwealth v. Kpou, ___ A.3d
___, ___ 2016 PA Super. 308, *3-4 (Pa. Super. 2016) (filed December 29,
2016).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/29/2017
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