Com. v. Shields, T.

J-A12027-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TYSHAWN RASHAD SHIELDS :
:
Appellant : No. 1690 WDA 2019
Appeal from the Judgment of Sentence Entered November 13, 2019
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000553-2019
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KING, J.: FILED JULY 02, 2020
Appellant, Tyshawn Rashad Shields, appeals from the judgment of
sentence entered in the Erie County Court of Common Pleas, following his
negotiated nolo contendere pleas to persons not to possess firearms and
possession of drug paraphernalia.1 We affirm and grant counsel’s petition to
withdraw.
The relevant facts and procedural history of this case are as follows. On
November 5, 2018, parole agents entered Appellant’s residence to conduct a
search, pursuant to a probation home agreement. The agents entered the
residence using keys they retrieved from a vehicle owned by Appellant’s
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 6105(a)(1) and 35 P.S. § 780-113(a)(32), respectively.
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daughter’s mother. During the search, the agents discovered contraband in
Appellant’s residence.
On March 19, 2019, the Commonwealth filed a criminal information
charging Appellant with various offenses. Appellant filed a suppression motion
on April 24, 2019. In his motion, Appellant argued the parole agents
conducted an illegal search of his residence. On June 28, 2019, the court
conducted a suppression hearing. The court denied Appellant’s suppression
motion on October 30, 2019.
On November 4, 2019, Appellant entered negotiated pleas of nolo
contendere to persons not to possess firearms and possession of drug
paraphernalia. In exchange for his pleas, the Commonwealth agreed to
withdraw the remaining charges. On November 13, 2019, the court sentenced
Appellant to an aggregate term of six (6) to eighteen (18) months’
imprisonment, followed by one (1) year of probation.
Also on November 13, 2019, Appellant timely filed his notice of appeal
and a voluntary Pa.R.A.P. 1925(b) concise statement of errors complained of
on appeal. Counsel subsequently filed a petition to withdraw and an Anders2
brief with this Court.
As a preliminary matter, counsel seeks to withdraw representation
pursuant to Anders and Commonwealth v. Santiago, 602 Pa. 159, 978
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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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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 him of
his 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. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.
2007). 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
appeal.
* * *
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Under Anders, the right to counsel is vindicated by
counsel’s examination and assessment of the record and
counsel’s references 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, Appellant’s counsel filed a petition to withdraw. The petition
states counsel performed a thorough review of all available transcripts,
pleadings, and other materials from Appellant’s file, concluding the appeal is
wholly frivolous. Counsel supplied Appellant with a copy of the brief. Counsel
also provided Appellant with a letter explaining his right to retain new counsel
to pursue the appeal or to proceed pro se to raise any points Appellant deems
worthy of this Court’s attention.
In the Anders brief, counsel provided a statement of facts and
procedural history of the case. Counsel’s argument refers to relevant law that
might arguably support Appellant’s issue. Counsel further states the reasons
for her conclusion that the appeal is wholly frivolous. Therefore, counsel has
substantially complied with the technical requirements of Anders and
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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 THE TRIAL COURT COMMITTED AN ERROR OF
LAW AND/OR AN ABUSE OF DISCRETION WHEN IT DENIED
THE APPELLANT’S MOTION TO SUPPRESS?
(Anders Brief at 3).
On appeal, Appellant argues the parole agents conducted an illegal
search of his residence. Appellant insists “no reliable grounds existed” to
search the residence, and an exception to the warrant requirement was not
present. Appellant concludes the trial court erred in failing to suppress all
evidence obtained as a result of the search.
“At the outset, we note that in terms of its effect upon a case, a plea of
nolo contendere is treated the same as a guilty plea.” Commonwealth v.
Jabbie, 200 A.3d 500, 505 (Pa.Super. 2018) (internal quotation marks
omitted). “Generally, upon entry of a guilty plea, a defendant waives all
claims and defenses other than those sounding in the jurisdiction of the court,
the validity of the plea, and what has been termed the legality of the sentence
imposed[.]” Commonwealth v. Prieto, 206 A.3d 529, 533-34 (Pa.Super.
2019) (internal quotation marks omitted). Moreover, “[a]n issue that is
waived is frivolous.” Commonwealth v. Tukhi, 149 A.3d 881, 888
(Pa.Super. 2016).
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Instantly, Appellant’s entry of the nolo contendere pleas resulted in the
waiver of his claim regarding the denial of his suppression motion. See
Prieto, supra. Because the claim is waived, we agree with counsel’s
determination that Appellant’s lone issue on appeal is wholly frivolous. See
Tukhi, supra. Further, our independent review of the record does not reveal
any additional, non-frivolous issues preserved on appeal. See Dempster,
supra; Palm, supra. Accordingly, we affirm the judgment of sentence and
grant counsel’s petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw is granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/2/2020
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