Com. v. Lee-Chima, K.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KASHEYON LEE-CHIMA :
:
Appellant : No. 3688 EDA 2018
Appeal from the Judgment of Sentence Entered November 14, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0012239-2015
BEFORE: BOWES, J., McCAFFERY, J., and MUSMANNO, J.
MEMORANDUM BY BOWES, J.: FILED JULY 13, 2020
Kasheyon Lee-Chima appeals from his November 14, 2018 judgment of
sentence entered after he entered a plea of nolo contendere to the charges of
involuntary deviate sexual intercourse with a child (“IDSI”), unlawful contact
with a minor, and indecent assault of a person less than 13 years of age.
Appellant’s counsel, Matthew Sullivan, Esquire, has filed a petition to withdraw
pursuant to Anders v. California, 386 U.S. 738 (1967) and Commonwealth
v. Santiago, 978 A.2d 349 (Pa. 2009). We affirm Appellant’s judgment of
sentence, and we grant counsel’s petition to withdraw.
Appellant was charged in connection with allegations that he had
sexually assaulted a minor (the “victim”) while temporarily living with the
victim’s family in Philadelphia, Pennsylvania. The victim disclosed the abuse
to his mother several days after it occurred, stating that Appellant had
assaulted him by touching the victim’s penis, putting the victim’s penis in his
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mouth, and forcing the victim to touch his penis. See N.T. Plea Colloquy,
11/14/18, at 14-16. Appellant later turned himself in to the police, waived
his Miranda1 rights, and confessed to the above-referenced acts.2 Id. at 16.
Ultimately, Appellant entered a negotiated plea of nolo contendere to the
above-referenced crimes after participating in a plea colloquy before the trial
court. In exchange for his plea, the Commonwealth recommended that
Appellant receive an aggregate sentence of five and one-half to twelve years
of imprisonment, followed by ten years of probation. See N.T. Sentencing,
11/14/18, at 6-7.
At this point, Appellant was still represented by trial counsel.
Nonetheless, Appellant chose to file a timely, pro se notice of appeal.3
Thereafter, the trial court appointed new appellate counsel4 to represent
Appellant. The trial court directed Appellant to file a concise statement of
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1 See Miranda v. Arizona, 384 U.S. 436 (1966).
2 Appellant sought to suppress the inculpatory statements he made to law
enforcement on the grounds that Appellant had decided to turn himself in after
consulting with a pastor, and no video evidence of Appellant’s waiver of his
Miranda rights was created by police. See N.T. Suppression Hearing, 6/8/18,
at 44-52. The trial court denied Appellant’s motion. Id. at 54-58.
3 Ordinarily, such a pro se filing would have no legal effect because Appellant
was still represented by counsel when he filed this notice. However, notices
of appeal are an exception to the ordinary rules forbidding hybrid
representation. See Pa.R.A.P. 121(g)(i); see also S.C.B. v. J.S.B., 218 A.3d
905, 911 n.4 (Pa.Super. 2019). Thus, Appellant’s notice of appeal was proper.
4 Trial counsel withdrew his representation shortly after Appellant initiated
this appeal, averring that Appellant had neither informed him of his intent to
file the instant appeal, nor retained him to assist in the appeal.
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errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). In response,
appellate counsel filed a statement under Rule 1925(c)(4), stating his
intention to seek withdrawal from the case pursuant to the Anders/Santiago
framework. Thereafter, appellate counsel filed an Anders brief along with a
petition to withdraw. In relevant part, appellate counsel averred that
Appellant had no cognizable or meritorious claims relating to the trial court’s
jurisdiction, his plea, or his sentence.
Appellant filed an application seeking the appointment of new counsel,
which this Court denied. However, we provided Appellant a thirty-day window
in which to submit a response to appellate counsel’s Anders brief “either pro
se, or via privately retained counsel.” Order, 8/14/19. Appellant sought
numerous extensions and ancillary relief related to this response, serially
alleging that appellate counsel had not provided him with certain
documentation and transcripts related to his case.5 Eventually, Appellant filed
a pro se response to appellate counsel’s Anders brief, claiming that various
meritorious issues allegedly remain in his case.
Before we address the merits of this appeal, we must determine whether
counsel has complied with the procedures provided in Anders and its progeny.
Commonwealth v. Yorgey, 188 A.3d 1190, 1195 (Pa.Super. 2018) (en
banc). “Counsel who wishes to withdraw must file a petition to withdraw
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5 On November 13, 2019, appellate counsel filed a response with this Court
denying that he had withheld any materials from Appellant, and averring that
he had provided him with all of the relevant materials in his possession. See
Response, 11/13/19, at ¶¶ 1-5.
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stating that he or she has made a conscientious examination of the record and
determined that the appeal would be frivolous.” Id. “Also, counsel must
provide a copy of the Anders brief to the appellant and inform him of his right
to proceed pro se or retain different counsel.” Id. at 1195-96.
At a minimum, the Anders 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. Id. at 1196. Overall, the
brief “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 the outset, we note that as a result of Appellant’s nolo contendere
plea, his available appellate claims are curtailed under Pennsylvania law. See
Commonwealth v. Jabbie, 200 A.3d 500, 505 (Pa.Super. 2018). In relevant
part, such a plea “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.” Id.Counsel has offered a thorough and cogent discussion of the history of
Appellant’s case and the legal arguments in support of the conclusion that
Appellant has no claims of arguable merit. See Anders brief at 1-18.
Counsel’s discussion clearly recognizes the legal consequences of Appellant’s
nolo contendere plea, and enumerates the lack of arguable merit in any of the
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available arguments, to wit: (1) Appellant did not file any post-sentence
motions or petitions seeking to withdraw his guilty plea, and has waived any
claims challenging the validity of his plea; and (2) Appellant’s sentence
appears to be legal. Id. Finally, there are no obvious jurisdictional defects.
Based on the foregoing analysis, we conclude that counsel has complied
with the requirements of Anders. Counsel has filed both a petition to
withdraw and a substantively compliant Anders brief. Counsel has also
provided a copy of his brief to Appellant, and advised Appellant of his right to
proceed either pro se or with a privately retained attorney. Thus, we find that
appellate counsel has technically complied with the requirements of Anders.
However, our review does not end there. Having determined that
appellate counsel is in technical compliance with Anders, we also must
conduct “a full examination of all the proceedings, to decide whether the case
is wholly frivolous.” Yorgey, supra at 1196 (citing Anders, supra at 744).
This independent examination of Appellant’s case “requires us only to conduct
a review of the record to ascertain if on its face, there are non-frivolous issues
that counsel, intentionally or not, missed or misstated.” Id. at 1197.
Reviewing Appellant’s pro se response to counsel’s Anders brief, we
discern that the only issues he raises that are not foreclosed by the legal effect
of his nolo contendere plea relate to the validity of his underlying plea. See
Appellant’s Anders Response, 5/22/20, at 6-16. Contrary to Appellant’s
averments, “a plea of nolo contendere is treated as a guilty plea in terms of
its effect upon a given case.” Commonwealth v. V.G., 9 A.3d 222, 226
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(Pa.Super. 2010). Thus, in order to preserve challenges to the validity of a
plea, a defendant must object at the colloquy or otherwise raise the issue at
the sentencing hearing or through a post-sentence motion. See
Commonwealth v. Tareila, 895 A.2d 1266, 1270 n.3 (Pa.Super. 2006)
(citing Pa.R.A.P. 302(a)). “Where an appellant fails to challenge his guilty
plea in the trial court, he may not do so on appeal.” Id.Instantly, Appellant did not object at his colloquy or during his
sentencing hearing. Moreover, he did not file any post-sentence motions.6
Thus, Appellant has waived any arguable challenge to the validity of his nolo
contendere plea. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court
are waived and cannot be raised for the first time on appeal.”).
Based on the foregoing discussion, we find that Appellant’s claims
challenging the validity of his nolo contendere plea lack merit. Furthermore,
after conducting a thorough examination of the certified record, we discern no
non-frivolous issues to be raised in Appellant’s case. Consequently, we grant
counsel’s petition to withdraw, and we affirm Appellant’s judgment of
sentence.
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6 Belying the certified record, Appellant claims that he did, in fact, file a
petition to withdraw and has attached an alleged copy of the filing to his pro
se response. See Appellant’s Anders Response, 5/22/20, at Exhibit 1.
However, this document does not appear on the trial court docket, bears no
indicia of having ever been filed, and is de hors the certified record. As such,
we will not consider it. Accord Pa.R.A.P. 1921; see also Commonwealth
v. Young, 317 A.2d 258, 264 (Pa. 1974) (holding that an appellate court may
consider only the facts which have been duly certified in the record on appeal).
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Petition of Matthew Sullivan, Esquire, to withdraw as counsel granted.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/13/20
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