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[U] Commonwealth v. Hareford

Superior Court of Pennsylvania

February 18, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
ASHLEY RYAN HAREFORD, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence April 16, 2013 in the Court of Common Pleas of Delaware County Criminal Division at No.: CP-23-CR-0000566-2013

BEFORE: SHOGAN, J., OTT, J., and PLATT, J. [*]

MEMORANDUM

PLATT, J.

Appellant, Ashley Ryan Hareford, appeals from the judgment of sentence imposed after a negotiated guilty plea. Counsel has filed a petition to withdraw from representation and a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We grant counsel's petition to withdraw and affirm the judgment of sentence.

On April 16, 2013, Appellant entered a negotiated guilty plea to one count of involuntary deviate sexual intercourse (IDSI), one count of aggravated indecent assault, and one count of corrupting the morals of a minor. The charges arose out of an episode during which Appellant, a Virginia resident, then twenty years of age, came to Delaware County and had several sexual encounters with the victim, then age thirteen, before they both left the Commonwealth. Appellant was apprehended with the victim in the Washington, D.C. area, a few days after the victim's father reported her missing.

After a written and oral guilty plea colloquy, the trial court immediately[1] sentenced him to the agreed aggregate sentence of not less than fifteen nor more than thirty years' incarceration, to be followed by seven years' (eighty-four months') probation.[2] Appellant is also subject to lifetime registration as a sexual offender under Megan's Law.

After sentencing, on April 23, 2013, although represented, Appellant filed a pro se motion for reconsideration of sentence. Appellant asserted he was "unaware of what he was agreeing to, " claiming to suffer from diminished mental capacity.[3] (Defendant's Motion for Reconsideration of Sentence, 4/23/13, at 1 ¶ 3). He also claimed he was intimidated and misled by his counsel. (See id.). Counsel then filed a motion to withdraw the plea, alleging it was not a "voluntary, knowing, and intelligent waiver of his right to a trial." (Motion Challenging Validity of Guilty Plea, 4/24/13). After a hearing on June 7, 2013, the trial court denied the motion, on June 19, 2013. (See Order, 6/19/13). This timely appeal followed. In lieu of a statement of errors, counsel filed a notice of intent to file an Anders brief.[4] See Pa.R.A.P. 1925(c)(4). Counsel filed an Anders brief and a petition to withdraw.

In the Anders brief, counsel sets forth one issue that is of arguable merit:

Whether the sentence imposed on [Appellant] should be vacated since he was denied his right of allocution?

(Anders Brief, at 1).

Initially, we note that we may not address the merits of the issue raised on appeal without first reviewing the request to withdraw. See Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.Super. 2005). Therefore, we review counsel's petition at the outset. Our Supreme Court's decision in Santiago, supra, did not alter the procedural requirements counsel must satisfy in requesting to withdraw from representation. Counsel must: 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 defendant; and 3) advise the defendant that he or she has the right to retain private counsel or raise additional arguments that the defendant deems worthy of the court's attention. See Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa.Super. 2009).

Here, the petition to withdraw from representation states that counsel thoroughly examined the record and determined that the appeal would be wholly frivolous. (See Application to Withdraw Appearance, 10/09/13, at 1). Additionally, counsel notified Appellant that he was seeking permission to withdraw and furnished Appellant with copies of the petition to withdraw and the Anders brief, and advised Appellant of his right to retain new counsel or proceed pro se to raise any points he believes worthy of this Court's attention.[5] Accordingly, we conclude that counsel has satisfied the procedural requirements of Anders.

Next, we determine whether counsel's Anders brief meets the directives of Santiago, supra ...


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