Opinion
No. 795 MDA 2021 No. 796 MDA 2021
10-13-2022
COMMONWEALTH of Pennsylvania v. Gerald Robert MARTIN, Appellant Commonwealth of Pennsylvania v. Gerald Robert Martin, Appellant
MEMORANDUM BY COLINS, J.:
Appellant, Gerald Robert Martin, appeals from the judgments of sentence imposed following his entry of a nolo contendere plea to possession of a controlled substance with intent to deliver (methamphetamine, less than two and one-half grams) and a guilty plea to possession of drug paraphernalia. Following an initial remand to ensure that Appellant's counsel properly sought to withdraw from his representation, we are tasked with reviewing a petition to withdraw as counsel and an accompanying brief pursuant to Anders v. California , 386 U.S. 738 (1967). We deny the petition to withdraw as counsel and direct counsel to take remedial action within ten days of the filing of this memorandum.
35 P.S. § 780-113(a)(30), (32).
On or about August 29, 2018, the state police arranged through a confidential informant to purchase a controlled substance from Appellant. N.T. 1/12/21, 9. The informant met with Appellant and another person named Amanda Wilcox in Athens Township in Bradford County. Id. The informant purchased less than two and one-half grams of methamphetamine from them. Ms. Wilcox was the driver of a car at that location and Appellant was in the front passenger seat. Id. Appellant conducted the conversation to arrange the transaction and Ms. Wilcox was the one who completed the exchange with the informant. Id. The methamphetamine sold to the informant weighed .79 grams. Id. After the police stopped a car transporting Appellant on March 29, 2020, they found Appellant in possession of a hypodermic needle. Id. at 8.
On January 12, 2021, Appellant entered his pleas to the abovereferenced charges. N.T. 1/12/21, 1-10. The parties did not reach an agreement on a sentencing recommendation but the Commonwealth agreed to nolle prosse additional charges in exchange for the entry of the pleas. Id. at 1-2; N.T. 5/24/21, 8. Sentencing was deferred for the preparation of a pre-sentence investigation report. N.T. 1/12/21, 9.
The drug possession charge was docketed at CP-08-CR-0000214-2020 and the paraphernalia charge was docketed at CP-08-CR-0000362-2020. This Court consolidated these cases, sua sponte , pursuant to Pa.R.A.P. 513. See Order, 8/3/21 (per curiam ).
The additional charges included two counts of criminal conspiracy (for delivery of methamphetamine and heroin), an additional count of possession of a controlled substance with intent to deliver (heroin), and single counts of criminal use of a communication facility and false identification to a law enforcement officer. Bills of Information, CP-08-CR-0000362-2020, 8/5/20, 1; Bills of Information, CP-08-CR-0000214-2020, 5/5/20, 1-2.
On May 24, 2021, the court imposed an aggregate imprisonment term of sixteen to sixty months, including consecutive prison terms of fifteen to forty-eight months for possession of a controlled substance with intent to deliver and one to twelve months for possession of drug paraphernalia. N.T. 5/24/21, 6-9; Sentencing Order, CP-08-CR-0000214-2020, 5/24/21, 1; Sentencing Order, CP-08-0000362-2020, 5/24/21, 1. Appellant did not file post-sentence motions and filed timely notices of appeals in each of the underlying cases. Notice of Appeal, CP-08-CR-0000214-2020, 6/21/21; Notice of Appeal, CP-08-CR-000362-2020, 6/21/21, 1.
The Sentencing Guidelines recommended minimum imprisonment terms of fifteen to twenty-one months, plus or minus six months for aggravating or mitigating circumstances for possession of a controlled substance with intent to deliver, and restorative sanctions to four months, plus for aggravating circumstances. See 204 Pa. Code § 303.15 (7th ed., amend. 4 supp.; comprehensive offense listing) (providing offense gravity scores of six and one for possession of a controlled substance with intent to deliver and possession of drug paraphernalia); 204 Pa. Code § 30316(a) (7th ed., amend. 4; basic sentencing matrix); N.T. 5/24/21, 2 (noting the applicable guideline ranges and that Appellant had a prior record score of four).
Appellant's counsel filed an Anders brief for these consolidated appeals but failed to file a petition to withdraw as counsel along with a required notice letter advising Appellant of his rights under Anders and enclosing copies of the brief and the petition to withdraw as counsel. This Court issued two orders directing counsel to file an application to withdraw as counsel along with proof that Appellant had been properly advised of his rights. Order, 11/3/21, 1; Order, 11/18/21, 1. After no responsive filings were made with this Court, we remanded this case for the purposes of allowing the plea court to hold a hearing to determine whether counsel had abandoned Appellant. Commonwealth v. Martin , 2022 WL 2764211, *2 (Pa. Super., filed July 15, 2022) (unpublished memorandum). Appellant's counsel subsequently filed a petition to withdraw as counsel with this Court, and the plea court informed this Court of its findings that counsel had not abandoned his client and had filed the withdrawal motion to "cure the identified deficiencies" that were addressed in our former memorandum. Order, CP-08-CR-0000214-2020 & CP-08-CR-000362-2020, 8/8/22, ¶¶ 3-5; Application to Withdraw as Counsel, 7/29/22.
Counsel's Anders brief identifies three issues:
1. Whether the Appellant's plea was knowing, voluntary[,] and intelligent.
2. Whether the sentence imposed was appropriate given the circumstances of this case.
3. Whether the Appellant's sentence was legal and within Sentencing Guidelines for the Commonwealth of Pennsylvania.
Anders brief, at 3.
Prior to addressing the issues identified in Appellant's brief, we must first resolve counsel's petition to withdraw. Commonwealth v. Goodwin , 928 A.2d 287, 290 (Pa. Super. 2007) (en banc ). An attorney seeking to withdraw on appeal pursuant to Anders must take the following actions:
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) furnish a copy of the brief to the [appellant]; and 3) advise the [appellant] that he or she has the right to retain private counsel or raise additional arguments that the [appellant] deems worthy of the court's attention.
Commonwealth v. Cartrette , 83 A.3d 1030, 1032 (Pa. Super. 2013) (en banc ) (citation omitted; emphasis added). Our Supreme Court has also stated that a proper Anders 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.
Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009). Counsel also must provide the appellant with a copy of the Anders brief, together with a letter that advises the appellant of his or her 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. Nischan , 928 A.2d 349, 353 (Pa. Super. 2007) (citation omitted). "Substantial compliance with the Anders requirements is sufficient." Commonwealth v. Redmond , 273 A.3d 1247, 1252 (Pa. Super. 2022) (citation omitted).
Counsel filed an Anders brief and, following our former remand, a petition to withdraw as counsel. The Anders brief substantially complies with the requirements set forth in Santiago , although we note that the summary of the procedural history and facts in the brief does not contain citations to the certified record and the "Order in Question" section of the brief contains nothing after a heading for that section. Anders brief, at v, 4-9. Copies of Appellant's Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, that stated an intent to file the Anders brief, and the plea court's Rule 1925(a) opinion are appended to the brief. Notably, the proof of service for the brief does not reflect that counsel served Appellant with a copy of it.
On the date that the brief was filed, counsel filed two proofs of service. One was a form version generated by the Unified Judicial System of Pennsylvania's Web Portal that reflected electronic mail service to attorneys Brian Patrick Gallagher of the Bradford County Public Defenders’ Office and James Robert Nasatka of the Bradford County District Attorney's Office. The other form appears to have been generated by counsel and reflected electronic and regular U.S. mail service to the plea court, the prothonotary for the Bradford County Court of Common Pleas, and the Bradford County District Attorney's Office.
In his petition to withdraw, counsel advises this Court that, after "a conscientious examination of the record," he communicated with Appellant and "attempted to explain the absence of any arguable issue" to him. Petition to Withdraw, 7/29/22, ¶¶ 2, 4. Counsel acknowledged that he furnished a copy of the withdrawal petition to Appellant, along with a letter explaining Appellant's rights to "forward any additional argument or to retain new counsel to represent him." Id. at ¶ 5. In the letter to Appellant, counsel properly informed Appellant of his rights to proceed pro se or with newly retained counsel, acknowledged his filing of the Anders brief, and offered a short explanation as to counsel's reasons why some proposed claims for review would not provide Appellant with a basis for relief. Correspondence to Appellant, 7/28/22, attached to Petition to Withdraw, 7/29,22.
After previously delaying our review by twice ordering Appellant's counsel to file a petition to withdraw as counsel along with the Anders brief and a required notice letter to Appellant and then remanding for proceedings below when counsel failed to acknowledge or respond to our orders, this Court would have liked to proceed with substantive review of the identified claims. We are unable to do that because we unable to discern from the record that counsel ever furnished a copy of the Anders brief to Appellant as required by Cartrette , 83 A.3d at 1032. The proofs of service that counsel filed at the time that he filed the brief do not reflect service to Appellant. Counsel also does not acknowledge his service of the brief to Appellant in either the brief, his petition to withdraw, or the petition's accompanying letter to Appellant. Counsel's failure to acknowledge whether he satisfied his requirement to provide Appellant with a copy of the Anders brief is particularly frustrating as this Court reminded counsel of his need to acknowledge his enclosure of a copy of the brief along with his correspondence to his client in our former memorandum. See Martin , 2022 WL 2764211 at *1 ("Attorney Thompson failed to file a contemporaneous application to withdraw as counsel and failed to file the required notice letter addressed to Appellant explaining Appellant's rights under Anders and enclosing copies of the Anders brief and the application to withdraw as counsel) (emphasis added).
Given counsel's failure to demonstrate his compliance with an essential requirement for seeking withdrawal under Anders , we deny counsel's petition to withdraw. We direct counsel to send new copies of the Anders brief, the petition to withdraw as counsel, and the letter to Appellant that was attached to the petition to withdraw as counsel with amended certificates demonstrating proper service on Appellant and the Commonwealth. We further direct counsel to file a proof of service with this Court reflecting his service of new copies of all three pertinent documents (the brief, the petition, and the letter) to Appellant and the Commonwealth. We direct counsel to take this action within ten days of our filing of this memorandum.
Petition to withdraw as counsel denied. Panel jurisdiction retained.
We note that, as of the filing of this memorandum, Appellant has not filed any responsive pleadings as a pro se litigant and that there have been no filings reflecting the entry of an appearance for any privately retained counsel.
Judge Nichols joins the memorandum.
Judge Bowes files a dissenting memorandum.
DISSENTING MEMORANDUM BY BOWES, J.:
The first time this Court remanded these cases for the trial court to determine whether Appellant's counsel abandoned him, given counsel's failure to comply with or respond to two orders of this Court, I dissented to the Majority's decision to inject further delay into the resolution of this appeal. Since in my view the Majority again has opted to unnecessarily extend this process, I am constrained to dissent.
Although counsel appeared before the trial court in accordance with our remand and finally took the required actions to minimally fulfill his obligation to represent his client, I observe that we still have been provided no explanation from counsel or the trial court for counsel's failure to comply with our first two directives. Accordingly, I maintain my belief that counsel violated his obligations under the rules of professional conduct, and appears to have acted in contempt of this Court.
The Majority remands with directions for counsel to refile his petition to withdraw and to send it and a "new cop[y] of the Anders brief" to Appellant because counsel failed "to acknowledge whether he satisfied his requirement to provide Appellant with a copy of the Anders brief[.]" Majority Memorandum at 8. However, the trial court's order filed in response to our directions in the prior remand includes the express finding that counsel cured all of the deficiencies noted in our prior memorandum, including "provid[ing] his Anders brief, petition to withdraw, and the notification of rights to Appellant." Order, 8/9/22, at ¶ 4. To me, this representation of counsel to the trial court, documented in the certified record, is as good, if not better, an indication that Appellant was served with the necessary documents than a proof of service appended to a filing. Accordingly, rather than remand again, I would proceed to address the substance of the appeal in accordance with the applicable principles. See , e.g. , Commonwealth v. Wrecks , 931 A.2d 717, 721 (Pa. Super. 2007) ("[I]f counsel's petition and brief satisfy Anders , we will then undertake our own review of the appeal to determine if it is wholly frivolous."). See also Commonwealth v. Flowers , 113 A.3d 1246, 1249 (Pa. Super. 2015) (indicating that this Court must "make a full examination of the proceedings and make an independent judgment to decide whether the appeal is in fact wholly frivolous" (cleaned up)).
The issues of arguable merit identified by counsel are as follows:
1. Whether the Appellant's plea was knowing, voluntary and intelligent.
2. Whether the sentence imposed was appropriate given the circumstances of this case.
3. Whether the Appellant's sentence was legal and within the Sentencing Guidelines for the Commonwealth of Pennsylvania.
Anders brief at 3.
By way of background, Appellant's aggregate term of sixteen to sixty months of incarceration was imposed after he entered guilty pleas to delivery of a controlled substance and possession of drug paraphernalia and following a presentence investigation. See N.T. Sentencing, 5/24/21, at 1. The sentence is composed of standard-range sentences, and the trial court both ordered that Appellant receive credit for time served and noted his eligibility for the state drug treatment program and the Recidivism Risk Reduction Incentive ("RRRI") program. Id . at 8.
Addressing the first issue identified by counsel, I observe that, since Appellant did not object during the plea colloquy or file a motion to withdraw his guilty plea in the trial court prior to filing this appeal, Appellant waived his right to challenge the validity of his plea herein. See Commonwealth v. Lincoln , 72 A.3d 606, 609–10 (Pa. Super. 2013) ("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."). Consequently, attempting to raise the claim now would be frivolous. See Commonwealth v. Tukhi , 149 A.3d 881, 888 (Pa. Super. 2016) ("An issue that is waived is frivolous.").
Turning to the second issue, I agree with counsel that challenging the discretionary aspects of his sentence would be fruitless. See Anders brief at 16-17. I discern nothing in the certified record suggesting that there is any substantial question that the trial court abused its discretion in imposing sentence at the low end of the standard range after it duly considered the presentence investigation report, which revealed Appellant's prior record score of four, failure to address his addiction issues under prior supervision, and failure to submit to a drug and alcohol evaluation or chemical testing while on bail in these cases. Therefore, this issue cannot support a non-frivolous appeal.
Appellant failed to raise a challenge to the discretionary aspects of his sentence at the sentencing hearing or in a post-sentence motion. As noted by the trial court, this would ordinarily result in waiver. See Trial Court Opinion, 9/7/21, at 5 (citing Commonwealth v. Cartrette , 83 A.3d 1030, 1042 (Pa. Super. 2013) ). However, the trial court misadvised Appellant about his post-sentence rights at the sentencing hearing, informing Appellant as follows:
[Appellant], there's two ways you can challenge the sentence. You can file a [m]otion with me, you have to do that in ten (10) days. You can file an appeal, you have to do that within thirty (30) days. You have the right to an attorney to help with both those processes. [Counsel] is your attorney, so you want to make sure you talk with him about either of those options and do so promptly, if that is something you want to consider.
N.T. Sentencing, 5/24/21, at 9. Insofar as the trial court misadvised Appellant that he could challenge the sentence by filing a direct appeal, I find waiver inapplicable in the face of this breakdown in court processes. Accord Commonwealth v. Patterson , 940 A.2d 493, 498 (Pa. Super. 2007) (compiling cases in which the "courts of this Commonwealth have held that a court breakdown occurred in instances where the trial court, at the time of sentencing, either failed to advise Appellant of his post-sentence and appellate rights or misadvised him").
As for the third issue identified by counsel, I discern no illegality in Appellant's sentences. Being within the standard range of the sentencing guidelines, they are plainly within the statutory limits. Furthermore, the trial court complied with its obligation to assess Appellant's RRRI eligibility and expressly found him eligible. See N.T. Sentencing, 5/24/21, at 8.
Moreover, my "simple review of the record to ascertain if there appear[s] on its face to be arguably meritorious issues that counsel, intentionally or not, missed or misstated[,]" has revealed no additional issues counsel failed to address. Commonwealth v. Dempster , 187 A.3d 266, 272 (Pa. Super. 2018) (en banc ).
I have conducted my review cognizant of the fact that "upon entry of a guilty plea, a defendant waives all claims and defenses other than those sounding in the jurisdiction of the court, the validity of the plea, and what has been termed the ‘legality’ of the sentence imposed." Commonwealth v. Eisenberg , 98 A.3d 1268, 1275 (Pa. 2014).
Accordingly, because I agree with counsel that pursuing this appeal would be wholly frivolous, I would affirm the judgment of sentence and grant counsel's petition to withdraw. As the Majority instead remands for additional filings, I respectfully dissent.