Opinion
J-S15019-18 No. 1348 EDA 2017
07-18-2018
COMMONWEALTH OF PENNSYLVANIA v. KEITH DARRIN MORRISON, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence February 10, 2017
In the Court of Common Pleas of Montgomery County
Criminal Division at No.: CP-46-CR-0000273-2015 BEFORE: STABILE, J., DUBOW, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY DUBOW, J.:
Appellant, Keith Darrin Morrison, appeals from the Judgment of Sentence entered by the Montgomery County Court of Common Pleas after he entered a negotiated guilty plea to one count of Burglary. On appeal, he challenges the validity of his plea. Appellant's counsel filed a Petition to Withdraw as Counsel and a Brief pursuant to Anders v. California , 386 U.S. 738 (1967), as elucidated by our Supreme Court in Commonwealth v. McClendon , 434 A.2d 1185 (Pa. 1981), and Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009). After careful review, we grant counsel's Petition to Withdraw and affirm Appellant's Judgment of Sentence.
The trial court set forth the underlying facts in its Pa.R.A.P. 1925(a) Opinion and we need not repeat them in detail. See Trial Court Opinion, filed 9/28/17, at 1-2. Briefly, in June 2014 Appellant broke into a home in Upper Merion Township and stole cash and watches valued at $42,000. On February 10, 2016, Appellant entered a negotiated guilty plea to one count of Burglary and the court immediately sentenced him to the negotiated term of 7½ to 15 years' incarceration. Significantly, Appellant did not file a Post-Sentence Motion or a Notice of Appeal.
On November 22, 2016, Appellant filed a pro se PCRA Petition alleging plea counsel's ineffectiveness. The PCRA court appointed counsel, who filed an Amended PCRA Petition on February 16, 2017, alleging plea counsel's ineffectiveness for failure to file a requested direct appeal. The PCRA court held an evidentiary hearing, at which Appellant, his plea counsel, and another attorney testified. On April 5, 2017, the PCRA court granted Appellant's PCRA Petition and reinstated Appellant's direct appeal rights nunc pro tunc.
Appellant's retained counsel did not handle Appellant's plea; a colleague covered Appellant's guilty plea hearing. See N.T. PCRA, 3/29/17, at 27-28. Both attorneys testified at the PCRA hearing. Appellant appeared by video from SCI Pine Grove.
On April 24, 2017, Appellant filed a timely Notice of Appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant's PCRA counsel continued to represent Appellant.
On December 12, 2017, counsel filed a Brief and a Petition to Withdraw pursuant to Anders and Santiago. Appellant did not file a response to counsel's Anders Brief.
In his Anders Brief, counsel raised one issue:
Is the Appellant, Keith D. Morrison, entitled to a new trial on the basis that his negotiated guilty plea was not knowing, voluntary and intelligent[?]Anders Brief at 3.
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. Goodwin , 928 A.2d 287, 290 (Pa. Super. 2007) (en banc). Counsel who wishes to withdraw must file a petition to withdraw stating that he or she has made a conscientious examination of the record and determined that there are no meritorious issues to be raised on appeal. Commonwealth v. Wright , 846 A.2d 730, 736 (Pa. Super. 2004). 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. See also Commonwealth v. Millisock , 873 A.2d 748 (Pa. Super. 2005); Santiago , 978 A.2d at 361 (detailing substantive requirements of an Anders Brief).
Once counsel has satisfied the above requirements, it is then this Court's duty to conduct an independent review of the record to discern if there are any additional, non-frivolous issues overlooked by counsel and render an independent judgment as to whether the appeal is, in fact, wholly frivolous. See Goodwin , supra at 291; Commonwealth v. Yorgey , ___ A.3d ___, 2018 PA Super 136, *5 (Pa. Super. filed May 24, 2018) (en banc) (noting that Anders requires the reviewing court to "review 'the case' as presented in the entire record with consideration first of issues raised by counsel.").
Counsel in the instant appeal has complied with the above requirements. We thus proceed to conduct an independent review to ascertain if the appeal is indeed wholly frivolous.
In the Anders Brief, Appellant's counsel raised a challenge to the validity of Appellant's guilty plea. Anders Brief at 5-9. Specifically, Appellant argues, inter alia, that plea counsel caused him to enter an unknowing and involuntary plea because the plea colloquy was deficient. Id. Before we address the merits of Appellant's claim, we must first determine whether Appellant preserved this issue in the court below.
"Issues not raised in the lower court are waived and cannot be raised for the first time on appeal." Pa.R.A.P. 302. Where an appellant failed to challenge his guilty plea in the trial court, he may not do so on appeal. Commonwealth v. Watson , 835 A.2d 786, 791 (Pa. Super. 2003). An appellant may not cure his failure by raising the issue in his Pa.R.A.P. 1925(b) Statement of Errors. Id.
In order to preserve a challenge to the validity of a guilty plea, the appellant must either object during the sentencing colloquy, at the sentencing hearing, or by filing a post-sentence motion. Commonwealth v. Tareila , 895 A.2d 1266, 1270 n.3 (Pa. Super. 2006). See , e.g., Commonwealth v. May , 402 A.2d 1008, 1009 n.3 (Pa. 1979) (holding that appellant waived claim on appeal that he was entitled to withdraw his guilty plea because he "did not understand the felony murder rule and his plea was[, therefore, not] knowingly entered[,]" where appellant did not present this specific claim in the trial court).
Here, Appellant failed to challenge the validity of his guilty plea during his plea hearing. See N.T. Plea, 2/10/16, at 5-13. Appellant did not file a post-sentence motion or otherwise seek to withdraw his guilty plea. Accordingly, this claim is waived because Appellant never requested that the trial court permit him to withdraw his plea. Pa.R.A.P. 302(a); Watson , 835 A.2d at 791.
Further, even if the claim were not waived, the claim would fail on its merits. "A defendant who attempts to withdraw a guilty plea after sentencing must demonstrate prejudice on the order of manifest injustice before withdrawal is justified." Commonwealth v. Yeomans , 24 A.3d 1044, 1046 (Pa. Super. 2011) (citation omitted). "A showing of manifest injustice may be established if the plea was entered into involuntarily, unknowingly, or unintelligently." Id.
Pa.R.Crim.P. 590 requires pleas to be entered in open court, and specifies that the trial judge must make inquiries, on the record, to determine whether the plea is voluntarily and knowingly tendered. The comments to Pa.R.Crim.P. 590 specify that "nothing in the rule would preclude the use of a written colloquy that is read, completed, signed by the defendant, and made part of the record of the plea proceedings. This written colloquy would have to be supplemented by some on-the-record oral examination." Id.
We have reviewed Appellant's written and oral guilty plea colloquies, and conclude that the record belies Appellant's claim that they were deficient and, thus, unknowing and involuntary. The Honorable Gail A. Weilheimer, sitting as the trial court, has authored a comprehensive, thorough, and well-reasoned Opinion, citing relevant case law in addressing Appellant's claim. See Trial Court Opinion, filed 9/28/17, at 3-6 (concluding Appellant's guilty plea was knowing, voluntary, and intelligent because the court inquired into the areas required under Pa.R.Crim.P. 590; (2) the court informed Appellant of his post-sentence and appellate rights; and (3) Appellant's oral and written colloquies were thorough and sufficient, and Appellant may not now contradict his statements contained on the record). Thus, even if Appellant had not waived this issue for review, Appellant's challenge to the validity of his negotiated guilty plea would warrant no relief.
After conducting a full examination of all the proceedings as required pursuant to Anders , we discern no non-frivolous issues to be raised on appeal. We, therefore, grant counsel's Petition to Withdraw and affirm Appellant's Judgment of Sentence.
Petition to Withdraw granted. Judgment of Sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 7/18/18
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