Opinion
J-S20042-17 No. 2641 EDA 2016
11-15-2017
COMMONWEALTH OF PENNSYLVANIA v. TAI THACH Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence February 6, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004527-2013 BEFORE: BOWES, J., OTT, J. and FORD ELLIOTT, P.J.E. MEMORANDUM BY OTT, J.:
Tai Thach appeals, nunc pro tunc, from the judgment of sentence imposed on February 6, 2014, in the Court of Common Pleas of Philadelphia County, after Thach pled guilty to charges of aggravated assault and conspiracy. Thach was sentenced to a term of five to ten years' incarceration. In this appeal, Thach claims his guilty plea was unknowing and involuntary in that it lacked the mandatory elements for a guilty plea, the Cambodian interpreter lacked the ability to translate and he was not informed of the possibility he would be deported after he had served his sentence. Counsel has filed an Anders brief along with a motion to withdraw as counsel. After a thorough review of the submissions by the parties, relevant law, and the certified record, we affirm and grant counsel's motion to withdraw.
18 Pa.C.S. §§ 2702(a) and 903, respectively.
Anders v. California , 386 U.S. 738, 87 S.Ct. 1396 (1981); Commonwealth v. McClendon , 434 A.2d 1185 (Pa. 1981).
Initially, we must examine counsel's motion to withdraw.
Counsel having filed a petition to withdraw, we reiterate that "[w]hen presented with an Anders brief, this court may not review the merits of the underlying issues without first passing on the request to withdraw." Commonwealth v. Daniels , 999 A.2d 590, 593 (Pa. Super. 2010), citing Commonwealth v. Goodwin , 928 A.2d 287, 290 (Pa. Super. 2007) (en banc) (citation omitted). In order for counsel to withdraw from an appeal pursuant to Anders , certain requirements must be met, and 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., quoting Commonwealth v. Santiago , 602 Pa. 159, 978 A.2d 349, 361 (2009).
If counsel does not fulfill the aforesaid technical requirements of Anders , this Court will deny the petition to withdraw and remand the case with appropriate instructions (e.g., directing counsel either to comply with Anders or file an advocate's brief on Appellant's behalf). By contrast, if counsel's petition and brief satisfy Anders , we will then undertake our own review of the appeal to determine if it is wholly frivolous. If the appeal is frivolous, we will grant the withdrawal petition and affirm the judgment of sentence. However, if there are non-frivolous issues, we will deny the petition and remand for the filing of an advocate's brief.
Commonwealth v. Tukhi , 149 A.3d 881, 886 (Pa. Super. 2016) quoting Commonwealth v. Wrecks , 931 A.2d 717, 720-721 (Pa. Super. 2007)(citations omitted).Commonwealth v. Blauser , 166 A.3d 428, 431 (Pa. Super. 2017).
Counsel has satisfied all of the requirements needed to fulfill his duty. Additionally, following remand, counsel has certified he presented Thach with copies of all relevant material translated by a certified translator into Cambodian to ensure Thach understood the proceedings. Thach has not filed a response to counsel's Anders brief.
This panel previously remanded this matter with instructions to counsel to either certify Thach had been given a certified translation of the Anders brief or to provide Thach with a certified translation of the Anders brief. --------
Because counsel has fulfilled his duty to Thach and Thach has filed no reply, we will now examine the substance of the claim to determine if any of the issues are not wholly frivolous.
First and foremost, Thach's claims all address the voluntariness of his guilty plea. Thach did not seek to withdraw his plea either prior to or after sentencing. Therefore, all issues have been waived by failing to preserve the claim below. 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.") See also Commonwealth v. Monjaras-Amaya , 163 A.3d 466, 468-69 (Pa. Super. 2017) (In order to preserve an issue related to a guilty plea, an appellant must either object at the plea colloquy or file a post-sentence motion seeking to withdraw his plea.) Because the claims have not been preserved, we have nothing to review, making those claims wholly frivolous.
However, even if the claims had been properly preserved, Thach would not be entitled to relief. In this regard, we rely on the trial court's opinion which explains why Thach's claims are substantively without merit. We highlight the facts that Thach responded appropriately to all questioning during the guilty plea, a fact that demonstrates the interpreter was competent and that Thach understood what was said at the hearing. Additionally, the certified record demonstrates that Thach was, in fact, told of the risk of deportation. Specifically, there is a notice of that possibility in the written guilty plea colloquy that was translated for Thach and signed by him. Further, at sentencing, Thach asked for consideration of a sentence of less than one year, which would make it less likely that he would be deported. Finally, Thach does not indicate what element or elements were missing from the colloquy, thereby waiving that issue, as well. Nonetheless, the trial court noted that reviewed in toto, the oral and written colloquies addressed all of the guilty plea requirements.
In the event of further proceedings, the parties shall attach a copy of the trial court opinion, dated December 1, 2016, pages 4-6, which discuss the substantive aspects of Thach's claims.
In light of the foregoing, we affirm the judgment of sentence.
Judgment of sentence affirmed. Application to withdraw as counsel granted.
Judge Bowes concurs in the result.
President Judge Emeritus Elliott concurs in the result. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/15/2017
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