Com. v. Mowery, T.

J-S17017-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
TODD A. MOWERY
Appellant No. 2002 MDA 2019
Appeal from the Judgment of Sentence imposed November 13, 2019
In the Court of Common Pleas of Lackawanna County
Criminal Division at No: CP-35-CR-0000624-2018
BEFORE: PANELLA, P.J., STABILE, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY STABILE, J.: FILED AUGUST 14, 2020
Appellant, Todd A. Mowery, appeals from the judgment of sentence
imposed in the Court of Common Pleas of Lackawanna County on November
13, 2019. Counsel has filed a brief and petition to withdraw pursuant to
Anders v. California, 386 U.S. 738 (1967) and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009). We deny counsel’s petition without
prejudice for the filing of a proper Anders petition and brief, or an advocate’s
brief.
The factual and procedural background are not at issue. Briefly, on
August 26, 2019, Appellant entered an open guilty plea to one count of simple
assault, a misdemeanor of the second degree carrying a maximum fine of
$5,000 and 2 years’ imprisonment. Prior to the acceptance of the plea,
Appellant completed and signed a written guilty plea colloquy, which was
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supplemented by an oral colloquy on the record. The colloquies informed
Appellant of the nature of the charges against him, the rights he was giving
up, and the maximum sentence for the crime. Following these colloquies,
Appellant admitted to committing simple assault.
On November 13, 2019, the trial court sentenced Appellant to 12 to 24
months’ incarceration. After the trial court denied Appellant’s motion for
reconsideration, Appellant filed the instant appeal. In response to the trial
court’s order pertaining to the filing of a Pa.R.A.P. 1925(b) concise statement,
counsel filed a statement pursuant to Pa.R.A.P. 1925(c)(4), informing the trial
court of his intention to file an Anders brief instead of a concise statement
pursuant to Rule 1925(b).
The Anders brief challenges the jurisdiction of the trial court to accept
Appellant’s guilty plea, the validity of the plea, and the legality of the
sentence.1 Before we address the merits of the challenge, however, we must
____________________________________________
1 In the brief, counsel notes that
Appellant requested an appeal be fi[le]d because he believes his
sentence was “harsh.” He maintains he was willing to participate
in any programs necessary to address any perceived alcohol
issues and that he should have been given an opportunity to
establish any alcohol issues that he may have had were under
control.
Anders Brief at 3. Thus, while Appellant asked counsel to challenge the
discretionary aspects of his sentence, counsel believed that such a challenge
was not possible given that Appellant had pled guilty. As explained below,
counsel is mistaken.
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consider the adequacy of counsel’s compliance with Anders and Santiago.
Our Supreme Court requires counsel to do the following.
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.
Counsel also must provide a copy of the Anders brief to his client.
Attending the brief must be a 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. Orellana, 86 A.3d 877, 879–80 (Pa. Super. 2014).
We note that the brief substantially complies with Anders/Santiago,
although counsel failed to provide citations to the record in the context of the
summary of the procedural history and facts, and omitted the requisite Rule
2119(f) statement when challenging the discretionary aspects of the sentence.
See, e.g., Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009)
(“The Anders brief challenges discretionary aspects of Appellant’s sentence.
Appellant was required to set forth in his brief a concise statement of the
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reasons relied upon for allowance of appeal with respect to the discretionary
aspects of a sentence”) (citation and internal quotation marks omitted).
We suspect the absence of a Rule 2119(f) statement is probably due to
counsel’s failure to recognize that, since the plea here was open, the law
permits a discretionary challenge to Appellant’s sentence. Counsel indicates
in his brief that, since Appellant pled guilty, Appellant’s reasons for challenging
the sentence are limited to three grounds: jurisdiction of the court, validity
of the plea, and legality of the sentence. Had Appellant pled guilty to a
negotiated plea, counsel would be correct that any subsequent challenges
would be limited to these grounds.
In Commonwealth v. Tirado, 870 A.2d 362 (Pa. Super. 2005),
[w]e note[d] that while a guilty plea which includes sentence
negotiation ordinarily precludes a defendant from contesting the
validity of his or her sentence other than to argue that the
sentence is illegal or that the sentencing court did not have
jurisdiction, open plea agreements are an exception in which a
defendant will not be precluded from appealing the discretionary
aspects of the sentence.
Id. at 365, n.5. See also Commonwealth v. Guth, 735 A.2d 709, 710, n.3
(Pa. Super. 1999) (when the plea agreement is open, containing no bargain
for a specific or stated term of sentence, the defendant will not be precluded
from appealing the discretionary aspects of his sentence).
A review of the plea Appellant entered on August 26, 2019 reveals that
while Appellant pled guilty to simple assault, the plea was silent as to any
sentence to be imposed. Indeed, the guilty plea form executed by Appellant
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merely stated the maximum sentence applicable under the statute but did not
provide any specifics as to the actual sentence to be imposed. The plea
entered by Appellant, therefore, was open. As such, contrary to counsel’s
assertion, Appellant can challenge the discretionary aspects of his sentence.
See Tirado, supra; Guth, supra.
Because counsel’s argument rests on a misunderstanding of the facts
and/or the law, we are constrained to deny his petition to withdraw without
prejudice to refile his petition. We therefore, direct that counsel file, within
thirty days of the date of this memorandum, either an advocate’s brief or a
compliant Anders brief and petition to withdraw. If counsel files an Anders
petition and brief, Appellant shall have thirty days after service of counsel’s
petition, letter, and brief to file a response in this Court either pro se or with
the benefit of private counsel. The Commonwealth may respond within thirty
days to any brief filed on behalf of Appellant.
Petition to withdraw denied. Panel jurisdiction retained.
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