Opinion
J-S79042-17 No. 3692 EDA 2016
01-19-2018
COMMONWEALTH OF PENNSYLVANIA Appellee v. BERNARD FORD Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence November 14, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002505-2014, MC-51-CR-0044110-2013 BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Bernard Ford, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas, following his open guilty plea to third-degree murder and conspiracy. We affirm.
18 Pa.C.S.A. §§ 2502(c) and 903, respectively.
In its opinion, the trial court fully and correctly sets forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them. For purposes of our disposition, we add that counsel filed a petition for leave to withdraw as counsel and Anders brief in this Court on July 25, 2017. On August 16, 2017, Appellant filed a pro se response.
As a preliminary matter, counsel seeks to withdraw his representation pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Santiago , 602 Pa. 159, 978 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).
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.
Santiago , supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:
* * *
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.
[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 conducted a conscientious review of the record and determined the appeal is wholly frivolous. Counsel also supplied Appellant with a copy of the brief and a letter explaining Appellant's right to retain new counsel or to proceed pro se to raise any additional issues Appellant deems worthy of this Court's attention. ( See Letter to Appellant, dated July 24, 2017, attached to Petition for Leave to Withdraw as Counsel). In the Anders brief, counsel provides a summary of the 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 his conclusion that the appeal is wholly frivolous. Therefore, counsel has substantially complied with the requirements of Anders and Santiago.
Counsel raises the following issue on Appellant's behalf:
DID THE HONORABLE COURT COMMIT AN ABUSE OF DISCRETION BY REFUSING TO PERMIT APPELLANT TO WITHDRAW HIS GUILTY PLEA BECAUSE THE PLEA WAS ENTERED UKNOWINGLY AND INVOLUNTARILY DUE TO THE FACT THAT APPELLANT WAS SUFFERING FROM MENTAL ILLNESS AT THE TIME HE ENTERED HIS PLEA AND HAD NOT TAKEN NECESSARY MEDICATION THE NIGHT BEFORE HE ENTERED HIS GUILTY PLEA?( Anders Brief at 14).
Appellant also raised this claim in his pro se response to counsel's petition for leave to withdraw as counsel. --------
This Court reviews "a trial court's ruling on a pre-sentence motion to withdraw a guilty plea for an abuse of discretion." Commonwealth v. Islas , 156 A.3d 1185, 1187 (Pa.Super. 2017). "An abuse of discretion is not a mere error in judgment but, rather, involves bias, ill will, partiality, manifest unreasonableness, and/or misapplication of law." Commonwealth v. Gordy , 73 A.3d 620, 624 (Pa.Super. 2013), appeal denied, 624 Pa. 687, 87 A.3d 818 (2014). "By contrast, a proper exercise of discretion conforms to the law and is based on the facts of record." Id.
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Genece E. Brinkley, we conclude Appellant's issue on appeal merits no relief. The trial court opinion comprehensively discusses and properly disposes of the question presented. ( See Trial Court Opinion, filed June 5, 2017, at 9-21) (finding: to extent Appellant asserts plea counsel was ineffective because he "forced" Appellant to enter guilty plea, this claim is premature and must wait until collateral review; additionally, Appellant failed to demonstrate that allowing withdrawal of his guilty plea would promote fairness and justice; record belies Appellant's claim that he did not understand consequences or terms of his guilty plea, due to his mental health issues; at November 3, 2015 plea hearing, Appellant reviewed and signed written guilty plea colloquy with counsel; court then conducted thorough oral colloquy with Appellant in which it discussed nature of charges, factual basis of plea, permissible sentencing ranges, right to jury trial, Appellant's presumption of innocence, Appellant's level of education, and Appellant's mental health issues; nothing in record indicates Appellant was confused or disoriented; in fact, Appellant answered court's questions during oral colloquy in lucid and coherent manner; Appellant is bound by statements made at guilty plea hearing; with respect to Appellant's assertion that he was not informed of his obligation to testify for Commonwealth, trial counsel stated he explained every component of plea agreement to Appellant, including Appellant's obligation to testify for Commonwealth at trial of Appellant's co-defendants; significantly, Appellant's actions after execution of plea agreement demonstrate Appellant's awareness of requirement to testify for Commonwealth; further, Commonwealth would suffer substantial prejudice if court allowed Appellant to withdraw guilty plea; through Appellant's involvement in co-defendants' case, Appellant was aware of Commonwealth's evidence and trial strategy; as such, allowing Appellant to withdraw plea would substantially impair Commonwealth's ability to prosecute Appellant; under these circumstances, court properly denied Appellant's motion to withdraw his guilty plea). Following our independent review of the record, we conclude the appeal is frivolous. See Palm , supra. Accordingly, we affirm on the basis of the trial court opinion and grant counsel's petition to withdraw.
Judgment of sentence affirmed; petition to withdraw is granted. Judgment Entered. /s/ _________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/19/2018
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