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[U] Commonwealth v. Duncan

Superior Court of Pennsylvania

February 10, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
RALPH M. DUNCAN Appellant COMMONWEALTH OF PENNSYLVANIA Appellee
v.
RALPH M. DUNCAN Appellant COMMONWEALTH OF PENNSYLVANIA Appellee
v.
RALPH M. DUNCAN Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence of March 25, 2013 In the Court of Common Pleas of Indiana County Criminal Division at No.: CP-32-CR-0000822-2012, CP-32-CR-0000827-2012 In the Court of Common Pleas of Indiana County Criminal Division at No.: CP-32-CR-0000978-2012

BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and WECHT, J.

MEMORANDUM

WECHT, J.

Ralph Duncan appeals from the March 25, 2012 judgments of sentence imposed in the above captioned cases.[1] Duncan's counsel has filed with this Court an "Anders/Santiago brief, "[2] wherein counsel submits that Duncan has no non-frivolous arguments to present on appeal. Counsel also has filed a separate motion to withdraw as counsel. We affirm the judgments of sentence, and we grant counsel's motion to withdraw.

On December 7, 2012, Duncan entered consolidated guilty pleas at three separate criminal informations. At CP-32-CR-0000827-2012, Duncan pleaded guilty to one count of sexual assault, 18 Pa.C.S. § 3124.1. At CP-32-CR-0000822-2012, Duncan pleaded guilty to one count of intimidation of a witness or victim, 18 Pa.C.S. § 4952(a)(2). At CP-32-CR-0000978-2012, Duncan pleaded guilty to another count of intimidation of a witness or victim. At the plea hearing, the assistant district attorney summarized the factual basis for the pleas as follows:

Pursuant to an affidavit filed by Trooper [Allison] Goswick of the Pennsylvania State Police for actions that occurred on or about May 9, 2009 through April 2012, at 72 Adams Road in Brush Valley Township in Indiana County, [Duncan] did engage in sexual intercourse or deviate sexual intercourse with the complainant[3] without the complainant's consent. That was in the case of #827 Crim. 2012. In the case of #822 Crim. 2012, pursuant to an affidavit filed by Trooper Goswick of the Pennsylvania State Police for actions that occurred during a period of years ranging from 2005 to September of 2012 at 72 Adams Road, Brush Valley Township, Indiana County, [Duncan] did intimidate the victim who was to testify against him in a criminal trial involving sexual assaults to her daughter. In the case of #978 Crim. 2012, pursuant to an affidavit filed by Trooper [Deana] Kirkland of the Pennsylvania State Police for actions that occurred on or about December 16, 2009 until a period that is unknown in Homer City in Brush Valley Township in Indiana County, [Duncan] did intimidate a male victim who was a minor at the time by telling him not to tell anyone what had happened to him in regards to a sexual abuse that had occurred.

Notes of Testimony ("N.T."), 12/7/2012, at 14-15. In exchange for Duncan's pleas, the Commonwealth agreed to recommend to the trial court that Duncan's sentences on the individual crimes be run concurrently to each other. N.T., 12/7/2012, at 4. Following the execution of a written guilty plea colloquy as well as an oral colloquy conducted in open court, the trial court accepted Duncan's pleas and deferred sentencing until March 25, 2013.

At sentencing, the Commonwealth complied with its obligation and recommended concurrent sentences. N.T., 3/25/2013, at 3-4. The trial court rejected the recommendation, and sentenced Duncan to four and one half to ten years' incarceration on the sexual assault charge filed at CP-32-CR-0000827-2012, two to ten years' incarceration on the intimidation of a witness charge filed at CP-32-CR-0000822-2012, and two to ten years' incarceration on the intimidation of a witness charge filed at CP-32-CR-0000978-2012. The trial court ordered each of these sentences to run consecutively to each other. Thus, in the aggregate, Duncan was sentenced to eight and one-half to thirty years in prison.

On March 28, 2013, Duncan filed post-sentence motions to modify his sentence in each of his three cases. Duncan requested only that his sentence be modified to a lesser prison term. He did not seek to withdraw his guilty pleas or allege in any way that his pleas were not knowing, intelligent, and voluntary. The motions were denied on the same day. On May 10, 2013, Duncan, having not filed a timely notice of appeal, filed a petition to have his appellate rights reinstated nunc pro tunc. On May 13, 2013, the trial court granted the motion, and directed Duncan to file notices of appeal on each case within thirty days of the date of that order.

On May 20, 2013, Duncan filed a notice of appeal at each of his three cases. In response, the trial court directed Duncan to file concise statements of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On June 11, 2013, Duncan filed a Rule 1925(b) statement in each case. On July 10, 2013, the trial court authored a consolidated opinion pursuant to Pa.R.A.P. 1925(a).

Before reviewing the merits of any underlying issue that might be presented by Duncan or on his behalf, this Court first must pass upon counsel's petition to withdraw. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007) (en banc). Prior to withdrawing as counsel on a direct appeal under Anders, counsel must file a brief that satisfies the requirements established by our Supreme Court in Santiago. The 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 ...

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