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[U] Commonwealth v. Harris

Superior Court of Pennsylvania

February 5, 2014



Appeal from the Judgment of Sentence, March 30, 2012, in the Court of Common Pleas of Philadelphia County Criminal Division at Nos. CP-51-CR-0013559-2009, CP-51-CR-0013560-2009




Robert Harris appeals from the judgment of sentence of March 30, 2012, following his plea of nolo contendere to two counts each of unlawful contact and indecent assault. Appointed counsel, John Martin Belli, Esq., has filed a petition to withdraw and Anders brief.[1] After careful review, we grant the petition to withdraw and affirm the judgment of sentence.

The charges related to appellant's fondling of two young girls, ages seven and eight at the time of the offenses. (Notes of testimony, 10/18/10 at 15-17.) One of the girls was appellant's niece. (Id.) Appellant was accused of rubbing their breasts, buttocks, and vaginal areas, underneath their clothing. (Id.) Appellant also exposed himself to his niece. (Id. at 16.) On October 18, 2010, the day trial was scheduled to begin, appellant entered an open plea of nolo contendere to the charges described above; additional charges were nol prossed. Sentencing was deferred pending a Megan's Law assessment; bail was revoked and appellant remained in jail awaiting sentencing.

On February 7, 2012, appellant filed a motion to withdraw his plea. In addition, appellant's court-appointed public defender, Michael Garmisa, Esq., filed a motion to withdraw as counsel. The trial court granted Attorney Garmisa permission to withdraw and appointed new counsel, Carina Laguzzi, Esq., to represent appellant. The trial court also granted Attorney Laguzzi leave to amend the pre-sentence motion to withdraw the plea. However, the trial court did not receive an amended motion to withdraw the plea or any other indication that Attorney Laguzzi intended to pursue the motion. (Trial court opinion, 6/28/13 at 3.)

The case proceeded to sentencing on March 30, 2012. The trial court imposed an aggregate sentence of 2 to 4 years' incarceration followed by 8 years of reporting probation. No post-sentence motions were filed; however, on April 30, 2012, a timely notice of appeal was filed.[2]Subsequently, Attorney Laguzzi was permitted to withdraw as counsel, and Attorney Belli was appointed to represent appellant on the appeal. Appellant has complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has filed an opinion.

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, 178-179, 978 A.2d 349, 361 (2009).

Upon review, we find that Attorney Belli has complied with all of the above requirements. In addition, Attorney Belli served appellant a copy of the Anders brief, and advised him of his right to proceed pro se or hire a private attorney to raise any additional points he deemed worthy of this court's review. Appellant has not responded to counsel's motion to withdraw. As we find the requirements of Anders and Santiago are met, we will proceed to the issues on appeal.

Appellant has identified two issues for our review:

1. Was sentencing counsel ineffective for failing to litigate appellant's pre-sentence motion to withdraw his nolo contendere pleas?
2. Did the trial court err in not granting appellant's motion to withdraw his nolo contendere pleas prior to sentencing incarceration imposed upon him?

Appellant's brief at 8.

Appellant claims that sentencing counsel, Attorney Laguzzi, was ineffective for failing to pursue appellant's pre-sentence motion to withdraw his nolo contendere plea. This claim is not cognizable on direct appeal. There has been no evidentiary hearing on his ineffectiveness claim, and appellant has not waived his right to file a PCRA[3] petition following the disposition of the instant appeal. Therefore, appellant's claim of counsel ineffectiveness is dismissed without prejudice pursuant to Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), and its progeny. See also Commonwealth v. Barnett, 25 A.3d 371, 377 (Pa.Super. 2011) (en banc) (". . . this Court cannot engage in review of ineffective assistance of counsel claims on direct appeal absent an 'express, knowing and voluntary waiver of PCRA review.'"), quoting Commonwealth v. Liston (Liston II), 602 Pa. 10, 22, 977 A.2d 1089, 1096 (2009) (Castille, C.J., concurring).

Appellant also argues that the trial court erred by not granting his pre-sentence motion to withdraw his nolo contendere plea. However, as discussed above, Attorney Laguzzi never filed an amended motion and appellant apparently abandoned the issue. (Trial court opinion, 6/28/13 at 10.) The matter was not raised at sentencing. The trial court would have had no reason to sua sponte consider the motion. (Id.) To the extent appellant still wishes to pursue it, it is better framed as a counsel ineffectiveness claim on collateral review.[4]

Having determined that the issues raised are entirely frivolous and/or not cognizable on direct appeal, and, after our own independent review, that there are no other issues of arguable merit apparent from the record, we will grant counsel's petition to withdraw and affirm the judgment of sentence.

Petition to withdraw granted. Judgment of sentence affirmed. Judgment Entered.

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