Com. v. Jones, R.

J-S58025-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICARRIO JAMEEK JONES :
:
Appellant : No. 454 WDA 2019
Appeal from the Judgment of Sentence Entered August 16, 2018
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0003518-2014
BEFORE: PANELLA, P.J., BENDER, P.J.E., and DUBOW, J.
MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 06, 2020
Appellant, Ricarrio Jameek Jones, appeals nunc pro tunc from the
judgment of sentence of an aggregate term of 7½-15 years’ imprisonment.
Appellant challenges whether he freely, knowingly, and intelligently entered
his guilty plea, and contends that his sentence is manifestly excessive.
Furthermore, Appellant’s counsel, Emily M. Merski, Esq., seeks to withdraw
her representation of Appellant pursuant to Anders v. California, 386 U.S.
738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
We grant Attorney Merski’s petition to withdraw and affirm Appellant’s
judgment of sentence.
Attorney Merski provides the following synopsis of this case:
On November 5, 2014, … Appellant was charged with Aggravated
Assault (18 Pa.C.S. § 2702(a)(1)), Discharge of a Firearm [i]nto
Occupied Structure (18 Pa.C.S. § 2707.1(a)), Receiving Stolen
Property (18 Pa.C.S. § 3925(a)), Possession of a Firearm
Prohibited (18 Pa.C.S. § 6105(a)(1)), Firearms Not to be Carried
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Without a License (18 Pa.C.S. § 6106(a)(1)), Possession of an
Instrument of Crime (18 Pa.C.S. § 907(a)), Recklessly
Endangering Another Person (18 Pa.C.S. § 2705), Terroristic
Threats (18 Pa.C.S. § 2706(a)(1)), and Criminal Attempt–Criminal
Homicide (18 Pa.C.S. § 901(a)).
On September 18, 2015, … Appellant appeared before the
Honorable John Garhart of the Erie County Court of Common Pleas
for a jury trial. Following the close of evidence, the jury returned
a verdict of hung as to the charges for Aggravated Assault and
Criminal Attempt-Criminal Homicide. The jury found … Appellant
guilty of the remaining charges, with the exception of Receiving
Stolen Property where a judgment of acquittal was granted by the
trial court.
On January 6, 2016, … Appellant entered a plea of guilty to
Aggravated Assault. Said plea was withdrawn on the record on
January 12, 2016.
On June 15, 2018, Appellant entered a plea of guilty to Aggravated
Assault.
On August 16, 2018, … Appellant was sentenced to an aggregate
period of [7½-15 years] of incarceration. No post-sentence
motion or notice of appeal was … filed.
On October 23, 2018, … Appellant filed a pro se [“]Application for
Leave of Court to File Optional Post-Sentencing Motion Nunc Pro
Tunc and Reinstatement of Appellate Rights.[”] The trial court
recognized this filing as a [p]etition [pursuant to the] Post-
Conviction Relief [Act] (PCRA)[1] and a Supplemental PCRA
Petition was filed on February 22, 2019. On March 18, 2019, …
Appellant’s right to direct appeal was reinstated by the trial court.
A timely Notice of Appeal followed.
Anders Brief at 5-6.
After Appellant filed his timely notice of appeal nunc pro tunc, the trial
court directed him to file a Pa.R.A.P. 1925(b) concise statement of errors
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1 42 Pa.C.S. §§ 9541-9546.
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complained of on appeal, and he timely complied. Thereafter, the trial court
issued its Rule 1925(a) opinion.
On August 30, 2019, Attorney Merski filed a petition to withdraw as
counsel and an Anders brief, wherein she raised the following issues:
I. Whether the trial court committed an abuse of discretion in
accepting … Appellant’s plea of guilty when … Appellant did not
enter the plea freely, knowingly and intelligently?
II. Whether … Appellant’s sentence is manifestly excessive, clearly
unreasonable and inconsistent with the objective[s] of the
Pennsylvania Sentencing Code?
Anders Brief at 4 (unnecessary capitalization and emphasis omitted).
Attorney Merski determines that this appeal is wholly frivolous.
Accordingly,
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).
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 [her] client. Attending the brief must be a
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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, 879-80 (Pa. Super. 2014). After
determining that counsel has satisfied these technical requirements of Anders
and Santiago, this Court must then “conduct a simple review of the record to
ascertain if there appear on its face to be arguably meritorious issues that
counsel, intentionally or not, missed or misstated.” Commonwealth v.
Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en banc).
In the case sub judice, Attorney Merski’s Anders brief complies with the
above-stated requirements. Namely, she includes a summary of the relevant
factual and procedural history, she refers to portions of the record that could
arguably support Appellant’s claims, and she sets forth her conclusion that
Appellant’s appeal is frivolous. She also explains her reasons for reaching that
determination, and supports her rationale with citations to the record and
pertinent legal authority. Attorney Merski also indicates that she has provided
Appellant with a copy of her Anders brief. Additionally, she attached a letter
directed to Appellant to her petition to withdraw, in which she informed
Appellant of the rights enumerated in Nischan. Accordingly, counsel
complied with the technical requirements for withdrawal. We will now
independently review the record to determine if Appellant’s issues are
frivolous, and to ascertain if there are any other, non-frivolous issues he could
pursue on appeal.
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First, Appellant argues that his guilty plea was not made freely,
knowingly, or voluntarily. See Anders Brief at 9-10. “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.”
Commonwealth v. Lincoln, 72 A.3d 606, 609-10 (Pa. Super. 2013) (citation
omitted). Here, the record indicates that Appellant did not make an objection
during the plea colloquy or file a timely motion to withdraw his plea. As a
result, Appellant has waived this claim.
Second, Appellant contends that his sentence is manifestly excessive,
clearly unreasonable and inconsistent with the objectives of the Pennsylvania
Sentencing Code. Anders Brief at 11-15. However, our review of the record
demonstrates that Appellant also failed to raise this claim at sentencing or in
a post-sentence motion. See Commonwealth v. Ahmad, 961 A.2d 884,
886 (Pa. Super. 2008) (“A challenge to an alleged excessive sentence is a
challenge to the discretionary aspects of a sentence. Issues challenging the
discretionary aspects of a sentence must be raised in a post-sentence motion
or by presenting the claim to the trial court during the sentencing proceedings.
Absent such efforts, an objection to a discretionary aspect of a sentence is
waived.”) (citations omitted). Accordingly, he has waived this issue as well.2
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2 It is apparent from the record that Appellant believes that his plea counsel
coerced him into pleading guilty and failed to pursue certain relief on his
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Petition to withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/6/2020
____________________________________________
behalf. Furthermore, we recognize that Attorney Merski neglected to ensure
that Appellant’s post-sentence motion rights were restored nunc pro tunc,
despite Appellant’s indications to her that he wanted to withdraw his plea. We
note that Appellant can file a timely petition under the PCRA challenging the
effectiveness of his counsel within one year of the date his judgment of
sentence becomes final. See 42 Pa.C.S. § 9545(b)(1).
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