Opinion
J-A11012-20 No. 1635 MDA 2019
05-27-2020
COMMONWEALTH OF PENNSYLVANIA v. JOSE ORLANDO MORILLO Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered August 26, 2019
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0002555-2018 BEFORE: PANELLA, P.J., McLAUGHLIN, J., and STEVENS, P.J.E. MEMORANDUM BY PANELLA, P.J.:
Former Justice specially assigned to the Superior Court.
Jose O. Morillo appeals from the judgment of sentence imposed on August 26, 2019, in the Court of Common Pleas of Lancaster County. This followed his open guilty plea to one count each of drug delivery resulting in death and criminal use of a communication facility. The trial court sentenced Morillo to an aggregate term of 7 to 15 years' imprisonment.
18 Pa.C.S. §§ 2506(a) and 7512(a), respectively.
Morillo's counsel has filed a petition to withdraw from representation and an Anders brief. See Anders v. California , 386 U.S. 738 (1967); Commonwealth v. McClendon , 434 A.2d 1185 (Pa. 1981). The three issues addressed in the Anders brief are a claim Morillo received ineffective assistance of plea counsel, and challenges to the voluntariness of his plea and the discretionary aspects of his sentence. After a thorough review of the submissions by the parties, relevant law, and the certified record, we affirm and grant counsel's petition to withdraw.
The Commonwealth declined to file a brief.
On March 9, 2017, Morillo delivered heroin to the victim, who subsequently died of an overdose. On May 16, 2019, Morillo entered an open guilty plea. A little over three months later, after receiving a pre-sentence investigation report (PSI), the trial court sentenced Morillo.
On September 4, 2019, defense counsel filed a post-sentence motion challenging the discretionary aspects of sentence. On September 5, 2019, despite being represented by counsel, Morillo, acting pro se, filed a second motion seeking reconsideration of his sentence. On September 6, 2019, the trial court denied the counseled motion. The instant, timely appeal followed.
It is well settled under Pennsylvania law that there is no right to hybrid representation either at trial or on the appellate level. See Commonwealth v. Padilla , 80 A.3d 1238, 1259 (Pa. 2013), cert. denied, 573 U.S. 907 (2014). As a result, courts in this Commonwealth "will not accept a pro se motion while an appellant is represented by counsel; indeed, pro se motions have no legal effect and, therefore, are legal nullities." Commonwealth v. Williams , 151 A.3d 621, 623 (Pa. Super. 2016) (citation omitted). Because of this, the trial court forwarded a copy of Morillo's motion to counsel and did not otherwise address it. See Padilla , 80 A.3d at 1258.
On October 16, 2019, the trial court ordered Morillo to file a concise statement of errors complained of on appeal. On October 31, 2019, the trial court issued an amended Rule 1925(b) order. On December 5, 2019, defense counsel filed notice of intent to file an Anders brief. The court then declined to file a Rule 1925(a) opinion, citing counsel's notice of intent.
Preliminarily, we note when counsel files a petition to withdraw and accompanying Anders brief, we must first examine the request to withdraw before addressing any of the substantive issues raised on appeal. See Commonwealth v. Bennett , 124 A.3d 327, 330 (Pa. Super. 2015). Here, our review of the record reveals counsel has complied with the requirements for withdrawal outlined in Anders , supra , and its progeny. Specifically, counsel requested permission to withdraw based upon his determination the appeal is "wholly frivolous," filed an Anders brief pursuant to the dictates of Commonwealth v. Santiago , 978 A.2d 349, 361 (Pa. 2009), furnished a copy of the Anders brief to Morillo and advised Morillo of his right to retain new counsel or proceed pro se. See Commonwealth v . Cartrette , 83 A.3d 1030, 1032 (Pa. Super. 2013) (en banc). Moreover, our review of the record reveals no correspondence from Morillo responding to the Anders brief. Accordingly, we will proceed to examine the issues counsel identified in the Anders brief, and then conduct "a full examination of all the proceedings, to decide whether the case is wholly frivolous." Commonwealth v. Yorgey , 188 A.3d 1190, 1195 (Pa. Super. 2018) (en banc); see also Commonwealth v. Dempster , 187 A.3d 266 (Pa. Super. 2018) (en banc).
In his first claim, Morillo contends plea counsel was ineffective. See Anders Brief, at 9. This ineffectiveness claim, however, is premature.
In Commonwealth v. Holmes , 79 A.3d 562 (Pa. 2013), the Pennsylvania Supreme Court reaffirmed the general rule first set forth in Commonwealth v. Grant , 813 A.2d 726 (Pa. 2002), that "claims of ineffective assistance of counsel are to be deferred to PCRA review; trial courts should not entertain claims of ineffectiveness upon post-verdict motions; and such claims should not be reviewed upon direct appeal." Holmes , 79 A.3d at 576. Although there are three recognized exceptions to that general rule, no exception is applicable here. Accordingly, Morillo's ineffective assistance of counsel claim is not cognizable on direct appeal and must await collateral review.
The Holmes Court recognized two exceptions: (1) where the trial court determines a claim of ineffectiveness is "both meritorious and apparent from the record so that immediate consideration and relief is warranted[;]" or (2) where the trial court finds "good cause" for unitary review, and the defendant makes a "knowing and express waiver of his entitlement to seek PCRA review from his conviction and sentence, including an express recognition that the waiver subjects further collateral review to the time and serial petition restrictions of the PCRA." Holmes , 79 A.3d at 564, 577 (footnote omitted). Our Supreme Court adopted a third exception for "claims challenging trial counsel's performance where the defendant is statutorily precluded from obtaining PCRA review." Commonwealth v. Delgros , 183 A.3d 352, 361 (Pa. 2018) ("[W]here the defendant is ineligible for PCRA review because he was sentenced only to pay a fine, we agree with Appellant that the reasoning in Holmes applies with equal force to these circumstances").
In his second claim, Morillo challenges the voluntariness of his guilty plea. Anders Brief, at 9. However, he waived this claim.
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. Failure to employ either measure results in waiver. 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. Lincoln , 72 A.3d 606, 609-10 (Pa. Super. 2013) (citations and internal quotation marks omitted).
Instantly, Morillo cannot obtain review of a claim challenging the voluntariness of his guilty plea on direct appeal because he failed to preserve it properly by either objecting during the plea colloquy or filing a post-sentence motion to withdraw the plea. See Pa.R.Crim.P. 720(B)(1)(a)(i). Accordingly, because Morillo waived the claim, any challenge to it on appeal would be wholly frivolous.
As noted above, Morillo did file two post-sentence motions; however, both motions only challenged the discretionary aspects of his sentence. Post-Sentence Motion to Reconsider and Modify Sentence, 9/04/19, at unnumbered pages 1-2; Sentence Modification Appeal for Post Sentence, 9/05/19, at unnumbered page 1.
Moreover, Morillo's contention appears to be less a challenge to the voluntariness of his plea than a complaint of dissatisfaction with his sentence. See Anders Brief, at 9-10. This Court has held "[t]he law does not require that appellant be pleased with the outcome of his decision to enter a plea of guilty[.]" Commonwealth v. Yager , 685 A.2d 1000, 1004 (Pa. Super. 1996) (en banc) (citation omitted). Our review of the record shows not only his plea was clearly voluntary but in both the written guilty plea and oral colloquy the Court made him aware: (1) this was an open guilty plea; (2) there was no promise as to sentence; (3) the court had the option of imposing consecutive sentences; and (4) the court could sentence him to an aggregate sentence of up to 47 years' imprisonment. See N.T. Guilty Plea Hearing, 5/16/19, at 3-11; Written Guilty Plea Colloquy, 5/15/19, at 3-5. Thus, even if not waived, Morillo's challenge to the voluntariness of his plea based upon a claim he did not understand the sentencing implications is frivolous. --------
In his third claim, Morillo challenges the discretionary aspects of his sentence. See Anders Brief, at 9-11. "Generally, a plea of guilty amounts to a waiver of all defects and defenses except those concerning the jurisdiction of the court, the legality of the sentence, and the validity of the guilty plea." Commonwealth v. Reichle , 589 A.2d 1140, 1141 (Pa. Super. 1991). "The determination of whether discretionary aspects of sentencing may be challenged after a guilty plea is entered depends upon the actual terms of the plea bargain, specifically, to what degree a sentence agreement has been reached." Commonwealth v. Dalberto , 648 A.2d 16, 18 (Pa. Super. 1994).
Where the plea agreement provides specific penalties, an appeal from a discretionary sentence will not stand; however, where the plea agreement provides for no sentencing restrictions, the entry of a guilty plea will not preclude a challenge to the discretionary aspects of sentencing. See id. at 20. When the plea agreement falls somewhere between a negotiated plea and an open plea, we must determine the effect of the hybrid plea agreement on the right to challenge the discretionary aspects of his sentence. See id. at 21. Here, Morillo entered an open guilty plea that did not purport to limit the sentencing court's discretion in any way. Therefore, he may challenge the discretionary aspects of the sentence. See id.
The principles that guide our review are as follows:
Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.
The right to appellate review of the discretionary aspects of a sentence is not absolute, and must be considered a petition for permission to appeal. An appellant must satisfy a four-part test to invoke this Court's jurisdiction when challenging the discretionary aspects of a sentence.
[W]e conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence; (3) whether appellant's brief has a fatal defect; and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code.
* * * *
Commonwealth v. Zirkle , 107 A.3d 127, 132 (Pa. Super. 2014) (citations omitted).
A substantial question will be found where an appellant advances a colorable argument that the sentence imposed is either inconsistent with a specific provision of the Sentencing Code or is contrary to the fundamental norms which underlie the sentencing process. At a minimum, the Rule 2119(f) statement must articulate what particular provision of the code is violated, what fundamental norms the sentence violates, and the manner in which it violates that norm.
Here, Morillo preserved his claim by filing a motion to modify sentence. While he did not include a Pa.R.A.P. 2119(f) statement in the Anders brief, the Commonwealth has not objected to its absence and we are able to discern the nature of the claim from his argument, therefore we will consider it. See Commonwealth v. Ziegler , 112 A.3d 656, 661 (Pa. Super. 2015).
Instantly, Morillo appears to complain his sentence was harsh and excessive and the trial court failed to consider mitigating circumstances. These claims, taken together, have been found to raise a substantial question. See Commonwealth v. Dodge , 77 A.3d 1263, 1272 (Pa. Super. 2013).
However, the substance of the claims are frivolous. Here, the trial court had the benefit of a PSI. "Where pre-sentence reports exist, we shall continue to presume that the sentencing judge was aware of relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors." Commonwealth v. Devers , 546 A.2d 12, 18 (Pa. 1988). Further, Morillo's sentence was in the standard range of the sentencing guidelines. Where a sentence is within the standard range of the guidelines, Pennsylvania law views the sentence as appropriate under the Sentencing Code. See Moury , 992 A.2d 162, 171 (Pa. Super. 2010). Under the circumstances of this case, we cannot conclude that the imposition of concurrent standard range sentences constitutes an unreasonable sentence. Hence, Morillo's challenge to the discretionary aspects of his sentence is frivolous.
Finally, in accordance with Yorgey , 188 A.3d at 1197, we have independently reviewed the certified record in order to determine if counsel's analysis regarding the frivolous nature of the present appeal is correct. Because we agree with counsel's assessment this appeal is wholly frivolous, we affirm the judgment of sentence and grant counsel's petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw as counsel granted.
Judge McLaughlin joins the memorandum.
President Judge Emeritus Stevens files a concurring memorandum. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 05/27/2020