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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NON-PRECEDENTIAL DECISION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 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.

Santiago, 978 A.2d at 361. Counsel also must provide a copy of the Anders brief to the appellant. Attending the brief must be 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); see Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa.Super. 2010); Commonwealth v. Millisock, 873 A.2d 748, 751 (Pa.Super. 2005).

Our review of counsel's petition to withdraw and the accompanying brief reveals that counsel substantially has complied with the Santiago requirements. Counsel has provided a procedural history detailing the events relevant to the instant appeal in his brief, along with appropriate citations. Brief for Duncan at 4-8. Counsel has set forth the information in the record that counsel believes arguably would support Duncan's pursuit of relief. Id. at 5-6, 9-11, 11-12. Duncan seeks to raise two claims on appeal: (1) a claim that his guilty pleas were not knowingly, intelligently, and voluntarily entered; and (2) a claim of ineffective assistance of counsel. Id. at 4, 8, 11. Counsel addresses the applicable principles of law and facts, ultimately concluding that each of these claims would be frivolous. Id. at 8-13. In his motion to withdraw as counsel filed with this Court, counsel again certifies that, "after carefully and conscientiously examining the record, " he has "determined that the appeal of this case is wholly frivolous." See Petition for Leave to Withdraw as Counsel, 8/27/2013, ¶2 (unpaginated).

Additionally, in accordance with Nischan, counsel has sent Duncan a letter informing him that: (1) counsel believes that no meritorious issues exist in this case, rendering Duncan's appeal frivolous; (2) counsel is filing a motion to withdraw her representation in accordance with the aforementioned belief of frivolity; and (3) Duncan has the right to hire a private attorney to pursue an appeal or to proceed in the instant appeal pro se. Letter, 8/26/2013. Accordingly, we conclude that counsel substantially has complied with the requirements set forth in Nischan. 928 A.2d at 353; see also Millisock, 873 A.2d at 751.

We now must conduct an independent review of the record to determine whether the issues identified by Duncan in this appeal are, as counsel claims, wholly frivolous, or if there are any other meritorious issues present in this case. Santiago, 978 A.2d at 355 (quoting Anders, 386 U.S. at 744) ("[T]he court – not counsel – then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw . . . .")

We begin with an independent analysis of the two issues raised by Duncan in his brief. Duncan's first issue questions whether his guilty pleas were entered into knowingly, voluntarily, and intelligently. As a general rule, "[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal." Pa.R.A.P. 302(a). In order to preserve an issue related to a guilty plea, an appellant must either "object[] at the sentence colloquy or otherwise rais[e] the issue at the sentencing hearing or through a post-sentence motion." Commonwealth v. D'Collanfield, 805 A.2d 1244, 1246 (Pa.Super. 2002). When an appellant fails 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). We have reviewed the sentencing transcript and Duncan's post-sentence motions. At no point did Duncan challenge the voluntariness of his plea before the trial court. Duncan raised the issue for the first time in his Rule 1925(b) statement. Because Duncan did not preserve this claim before the trial court, it is waived on appeal. Thus, because the claim is waived and cannot by its nature afford relief to Duncan, the claim is frivolous.

Duncan's second issue is a claim of ineffective assistance of counsel ("IAC"). Specifically, Duncan contends that trial counsel rendered constitutionally ineffective assistance by advising him to plead guilty on the promise that Duncan would only receive, at most, three and one-half to seven years in prison. This claim is not cognizable on direct appeal under the circumstances of this case.

Recently, in Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), our Supreme Court considered "the reviewability of claims of ineffective assistance of counsel on post-verdict motions and direct appeal." Id. at 563. Following a comprehensive review of the language codified in the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-46, and decisions from our courts, the Supreme Court reaffirmed the principle that IAC claims must be deferred until collateral review, and, thus, are not reviewable on direct appeal. Id. The Court crafted two exceptions to this general proscription. First, the Court held that a trial court may, in its discretion, entertain IAC claims where extraordinary circumstances exist such that review of the claim would best serve the interests of justice. Id. at 563, 577. Second, the Court "repose[d] discretion in trial courts" to review IAC claims during post- sentence motions "only if (1) there is good cause shown, and (2) the unitary review so indulged is preceded by the defendant's knowing and express waiver of his entitlement to seek PCRA review from his conviction and sentence, including an express recognition that the waiver subjects further collateral review to the time and serial restrictions of the PCRA." Id. at 563-64, 577-80.

Instantly, extraordinary circumstances do not exist in this case such that Duncan's IAC claim warrants review on direct appeal or that Duncan expressly waived his right to PCRA review. See also Commonwealth v. Barnett, 25 A.3d 371 (Pa.Super. 2011) (en banc) (holding that this Court cannot review ineffective assistance of counsel claims on direct appeal absent a defendant's waiver of PCRA review). Consequently, in light of Holmes, Duncan's claim is not cognizable in this direct appeal.

We have reviewed the claims raised by Duncan and agree with counsel that those claims are frivolous, because they are either waived or not cognizable on direct appeal. We also independently have reviewed the remainder of the certified record, the transcripts, and the briefs by the parties. We have uncovered no other issues that have sufficient merit to warrant our attention. Therefore, we agree with counsel that Duncan's appeal is wholly frivolous.

Judgments of sentence affirmed.

Petition for leave to withdraw as counsel is granted. [4] Judgment Entered.


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