Com. v. Fagair, A.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ASHRAF HUSSAN FAGAIR :
:
Appellant : No. 2089 MDA 2019
Appeal from the Judgment of Sentence Entered December 9, 2019
In the Court of Common Pleas of Centre County Criminal Division at
No(s): CP-14-CR-0001194-2019
BEFORE: PANELLA, P.J., BENDER, P.J.E., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 30, 2020
Ashraf Hussan Fagair (“Appellant”) appeals from the judgment of
sentence of 24 months’ probation, imposed after his guilty plea to one count
each of simple assault1 and criminal mischief.2 Counsel seeks permission to
withdraw from further representation pursuant to Anders v. California, 386
A.2d 738 (Pa. 1967). Upon review, we find that counsel’s Anders brief
satisfies the requirements set forth in Commonwealth v. Santiago, 98 A.2d
349 (Pa. 2009), and that there are no non-frivolous claims that Appellant can
raise herein. Accordingly, we grant counsel’s petition to withdraw and affirm
the judgment of sentence.
____________________________________________
1 18 Pa.C.S. § 2701(a)(1).
2 18 Pa.C.S. § 3304(a)(2).
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The trial court provided the following summary of the procedural history
in this matter:
This case involves [Appellant’s] appeal from a judgment of
sentence entered on December 9, 2019[,] following his plea of
guilty to one count of simple assault, a second degree
misdemeanor, and one count of criminal mischief, a summary
offense.[3] The [c]ourt sentenced in accordance with a negotiated
plea agreement; [Appellant] was sentenced to twenty-four
months of probation and ordered to pay restitution for the simple
assault conviction, and an order of separate penalty was entered
for the criminal mischief conviction. The remaining charge to the
criminal information, summary harassment, was nol prossed.
TCO at 1.
Appellant filed a timely, pro se appeal on December 29, 2019, followed
by a timely, court-ordered Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. He now presents the following issue for our review,
via counsel’s Anders brief: “Was [Appellant’s] guilty plea valid and not
coerced by the prosecutor’s threats?” Anders Brief at 4.
____________________________________________
3To be valid, a guilty plea must be knowingly, voluntarily and intelligently
entered. Commonwealth v. Pollard, 832 A.2d 517, 522 (Pa. Super. 2003).
The trial court noted:
[Appellant’s] answers to the questions posed to him during his on-
record colloquy confirmed, inter alia, that he understood the
charges to which he was pleading guilty, that a factual basis for
his plea to the charges existed, that he understood a guilty plea
must be entered voluntarily, and that he was entering his plea
voluntarily. [Appellant] did not state that he had been unduly
pressured or coerced into entering a plea as opposed to standing
trial on the charges.
Trial Court Opinion (“TCO”), 1/21/20, at 2.
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“When faced with a purported Anders brief, this Court may not review
the merits of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005)
(quoting Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa. Super.
1997)).
Court-appointed counsel who seeks to withdraw from representing
an appellant on direct appeal on the basis that the appeal is
frivolous 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) file a brief referring to anything that arguably might
support the appeal but which does not resemble a “no-
merit” letter to amicus curiae brief; and (3) furnish a copy
of the brief to the [appellant] and advise the [appellant] of
his or her right to retain new counsel or raise any additional
points that he or she deems worthy of the court’s attention.
Commonwealth v. Miller, 715 A.2d 1203 (Pa. Super. 1998)
(citation omitted).
Rojas, 874 A.2d at 639. Appellant’s counsel has complied with these
requirements. Counsel petitioned for leave to withdraw, and filed a brief
satisfying the requirements of Anders, as discussed, infra. Counsel also
provided a copy of the brief to Appellant, and submitted proof that he advised
Appellant of his right to retain new counsel, proceed pro se, and/or to raise
new points not addressed in the Anders brief.
Our Supreme Court has held, in addition, that counsel must explain the
reasons underlying his assessment of Appellant’s case and his conclusion that
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the claims are frivolous. Thus, counsel’s Anders brief must satisfy the
following criteria before we may consider the merits of the underlying appeal:
[W]e hold 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.
Santiago, 978 A.2d at 361.
Upon review of the Anders brief submitted by Appellant’s counsel, we
find it complies with the technical requirements of Santiago. Counsel’s
Anders brief (1) provides a summary of the procedural history and facts of
this case; (2) directs our attention, when applicable, to the portions of the
record that ostensibly supports Appellant’s claim of error; (3) concludes that
Appellant’s claim is frivolous; and (4) does so by citation to the record and
appropriate/applicable legal authorities. Thus, we now examine whether
Appellant’s claim is, indeed, frivolous. We also must “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).
Instantly, Appellant challenges the validity of his guilty plea.
Settled Pennsylvania law makes clear that by entering a guilty
plea, the defendant waives his right to challenge on direct appeal
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all non[-]jurisdictional defects except the legality of the sentence
and the validity of the plea. Commonwealth v. Pantalion, 957
A.2d 1267, 1271 (Pa. Super. 2008)…. 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. Pa.R.Crim.P. 720(A)(1),
(B)(1)(a)(i). Failure to employ either measure results in waiver.
Commonwealth v. Tareila, 895 A.2d 1266, 1270 n.3 (Pa. Super.
2006). Historically, Pennsylvania courts adhere to this waiver
principle because “[i]t is for the court which accepted the plea to
consider and correct, in the first instance, any error which may
have been committed.” Commonwealth v. Roberts, … 352 A.2d
140, 141 ([Pa. Super.] 1975) (holding that [a] common and
previously condoned mistake of attacking guilty plea on direct
appeal without first filing petition to withdraw plea with trial court
is procedural error resulting in waiver; stating, “[t]he swift and
orderly administration of criminal justice requires that lower
courts be given the opportunity to rectify their errors before they
are considered on appeal[, and … s]trict adherence to this
procedure could, indeed, preclude an otherwise costly time
consuming, and unnecessary appeal to this court”).
Likewise:
Normally, issues not preserved in the trial court may not be
pursued before this Court. Pa.R.A.P. 302(a). For example,
a request to withdraw a guilty plea on the grounds that it
was involuntary is one of the claims that must be raised by
motion in the trial court in order to be reviewed on direct
appeal. Similarly, challenges to a court’s sentencing
discretion must be raised during sentencing or in a post-
sentence motion in order for this Court to consider granting
allowance of appeal. Moreover, for any claim that was
required to be preserved, this Court cannot review a legal
theory in support of that claim unless that particular legal
theory was presented to the trial court. Thus, even if an
appellant did seek to withdraw pleas or to attack the
discretionary aspects of sentencing in the trial court, the
appellant cannot support those claims in this Court by
advancing legal arguments different than the ones that were
made when the claims were preserved.
Commonwealth v. Rush, A.2d 945, 949 (Pa. Super. 2008),
appeal denied, … 972 A.2d 521 ([Pa.] 2209).
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Commonwealth v. Lincoln, 72 A.3d 606, 610 (Pa. Super. 2013).
After careful review of the record, we have determined that Appellant
failed to preserve his challenge to the validity of his guilty plea by either
objecting during the plea colloquy or by filing a post-sentence motion to
withdraw his plea. See id. Accordingly, we are constrained to deem
Appellant’s claim waived. 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.”);
Tareila, 895 A.2d at 1270 n.3 (“Where an appellant fails to challenge his
guilty plea in the trial court, he may not do so on appeal.”).
Our review of the record reveals no other potential, non-frivolous issues
that Appellant could raise on appeal. As such, we agree with counsel that a
direct appeal in this case is wholly frivolous. Accordingly, we grant counsel’s
motion to withdraw, and we affirm the judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw granted.
President Judge Panella joins this memorandum.
President Judge Emeritus Ford Elliott concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/30/2020
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