February 18, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
QUINZELL REDDICK, Appellant
Appeal from the Judgment of Sentence November 8, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): No. CP-51-0013234-2009
BEFORE: SHOGAN, J., OTT, J., and PLATT, J. [*]
Quinzell Reddick appeals the judgment of sentence imposed on November 8, 2012, in the Philadelphia County Court of Common Pleas. The mandatory minimum sentence of five to ten years' imprisonment was imposed after Reddick entered a guilty plea to charges of possession with intent to deliver controlled substances (PWID), criminal conspiracy, firearms not to be carried without a license, and carrying firearms on a public street in Philadelphia. Contemporaneous with this appeal, Reddick's counsel has filed a petition to withdraw from representation and an Anders brief. See Anders v. California, 386 U.S. 738 (1967); Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981). Counsel's Anders brief challenges the voluntariness of Reddick's guilty plea and the discretionary aspects of Reddick's sentence. For the reasons set forth below, we affirm and grant counsel's petition to withdraw.
The facts underlying Reddick's guilty plea were gleaned from the plea colloquy. On August 7, 2009, a narcotics surveillance team observed Reddick and two co-conspirators engage in three separate drug transactions. During each transaction, a potential buyer would hand money to one of the co-conspirators. Then, either Reddick or the other co-conspirator would retrieve small objects from underneath a nearby car's bumper, and hand it to the buyer. After each transaction, the buyer was stopped with heroin. During the last transaction, the police also observed Reddick remove an item from the trunk of the car, put it in a plastic bag, and place it in a nearby alleyway. Thereafter, the police detained Reddick and his co-conspirators. A search of the alleyway where Reddick had deposited the bag uncovered a plastic bag containing a loaded handgun. In addition, the officers recovered heroin and cocaine from underneath the car's bumper. See N.T., 11/8/2012, at 11-12.
Reddick was arrested and charged with the aforementioned offenses, as well as possession of controlled substances. On November 8, 2012, Reddick entered an open guilty plea to the charges of PWID, conspiracy and two violations of the Uniform Firearms Act. The remaining drug charge was nolle prossed. Following the court's acceptance of the guilty plea, Reddick proceeded immediately to sentencing. For the charge of PWID, the court imposed a mandatory minimum sentence of five to 10 years' imprisonment.The trial court imposed concurrent sentences on the remaining counts. At the same hearing, the trial court also sentenced Reddick on CP #5276-2010, for which he had previously been found guilty, following a bench trial, of additional drug and gun charges. Reddick filed a timely post sentence motion seeking reconsideration of his sentence. The trial court denied the motion on November 26, 2012, and this appeal followed.
Preliminarily, we must address counsel's petition to withdraw. When direct appeal counsel files a petition to withdraw and accompanying Anders brief, we must first examine the request to withdraw before addressing any of the substantive issues raised on appeal. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007). Here, our review of the record reveals that counsel has substantially complied with the requirements for withdrawal outlined in Anders, supra, and its progeny. Moreover, our review of the record reveals no additional correspondence from Reddick. Accordingly, we will proceed to examine the record and make an independent determination of whether the appeal is wholly frivolous.
The first issue presented in the Anders brief challenges the voluntariness of Reddick's guilty plea.
A defendant wishing to challenge the voluntariness of a guilty plea on direct appeal must either object during the plea colloquy or file a motion to withdraw the plea within ten days of sentencing. Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i). Failure to employ either measure results in waiver. Commonwealth v. Tareila, 895 A.2d 1266, 1270 n. 3 (Pa.Super. 2006).
Commonwealth v. Lincoln, 72 A.3d 606, 609-610 (Pa.Super. 2013). Here, Reddick failed to raise this challenge during his plea colloquy or in his post sentence motion. Therefore, it is not preserved for our review.
Nevertheless, even if we were to conclude there was no waiver, Reddick would still be entitled to no relief. "Our law presumes that a defendant who enters a guilty plea was aware of what he was doing [and h]e bears the burden of proving otherwise." Commonwealth v. Rush, 909 A.2d 805, 808 (Pa.Super. 2006) (citation omitted). Indeed, "[w]here the record clearly demonstrates that a guilty plea colloquy was conducted, during which it became evident that the defendant understood the nature of the charges against him, the voluntariness of the plea is established." Commonwealth v. Stork, 737 A.2d 789, 790 (Pa.Super. 1999) (citation omitted and internal quotation marks), appeal denied, 764 A.2d 1068 (2000). Furthermore, a defendant who seeks to withdraw a guilty plea after sentencing must demonstrate "prejudice on the order of manifest injustice." Commonwealth v. Yeomans, 24 A.3d 1044, 1046 (Pa.Super. 2011) (quotation omitted).
A trial court is required to inquire into the following areas when conducting a guilty plea colloquy:
(1) Does the defendant understand the nature of the charges to which he or she is pleading guilty or nolo contendere?
(2) Is there a factual basis for the plea?
(3) Does the defendant understand that he or she has the right to trial by jury?
(4) Does the defendant understand that he or she is presumed innocent until found guilty?
(5) Is the defendant aware of the permissible range of sentences and/or fines for the offenses charged?
Commonwealth v. Pollard, 832 A.2d 517, 522 (Pa.Super. 2003) (citation omitted).
Our review of Reddick's plea colloquy reveals that the trial court properly informed him of the factual basis for his plea, his right to a jury trial, the presumption of innocence, and the applicable sentencing range. See N.T. 11/8/2012, at 7-8, 11-12. Specifically, in the "Plea Bargain or Agreement" section of the written colloquy, there is the following notation: "mandatory minimum 5-10 years." Written Guilty Plea Colloquy, 11/8/2012, at 1. Moreover, Reddick affirmed in the written plea colloquy that his "lawyer told [him] what the elements of the crime(s) are that the District Attorney must prove to convict [him]." Id. Furthermore, during the in-court colloquy, Reddick acknowledged that (1) he read and understood the written colloquy; (2) he signed it of his own free will; (3) he was not threatened or coerced into pleading guilty; and (4) he was satisfied with the advice of his attorney. See N.T., 11/8/2012, at 5-6, 10. See also Pollard, 832 A.2d at 523 (holding that defendant who pleads guilty is bound by statements he makes under oath in open court) (citation omitted). Therefore, we agree with the determination of the trial court that Reddick's guilty plea was entered knowingly and voluntarily.
Next, the Anders brief presents a general challenge to the discretionary aspects of Riddick's sentence. "A challenge to the discretionary aspects of a sentence must be considered a petition for permission to appeal, as the right to pursue such a claim is not absolute." Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa.Super. 2007) (citation omitted). In order to reach the merits of such a claim, this Court must determine:
(1) whether appellant has filed a timely notice of appeal; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence; (3) whether appellant's brief has a fatal defect; and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code.
Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa.Super. 2011) (footnotes omitted). Here, Reddick filed a timely post sentence motion challenging the discretionary aspects of his sentence, as well as a timely direct appeal. Although the Anders brief fails to include the requisite statement pursuant to Pa.R.A.P. 2119(f), setting forth the reasons relied upon for allowance of appeal, the Commonwealth has neglected to file an appellate brief objecting to this omission. Therefore, we may overlook the defect, and proceed to determine whether Reddick has set forth a substantial question that his sentence is inappropriate under the Sentencing Code. See Commonwealth v. Titus, 816 A.2d 251, 255 (Pa.Super. 2003).
A substantial question exists when an appellant sets forth "a colorable argument that the sentence imposed is either inconsistent with a specific provision of the Sentencing Code or is contrary to the fundamental norms underlying the sentencing process." Commonwealth v. Ventura, 975 A.2d 1128, 1133 (Pa.Super. 2009), appeal denied, 987 A.2d 161 (Pa. 2009) (citation omitted). The Anders brief asserts the trial court erred when it permitted the prosecutor to set forth the unproven factual allegations underlying an open homicide charge against Reddick, and, in particular, the prosecutor's statement that Reddick "put a gun to the back of [one of the victim's heads] and shot him execution style." N.T., 11/8/2012. "[A]n allegation that the court considered an impermissible sentencing factor raises a substantial question." Commonwealth v. Macias, 968 A.2d 773, 776 (Pa.Super. 2009).
Although the trial court permitted the Commonwealth to state the unproven factual allegations underlying Reddick's pending charge, the court clearly acknowledged that it understood Reddick had not been proven guilty of that crime. The court stated:
It's a sentencing hearing so any allegations of criminal conduct are always permitted in the sentencing hearing. They're allegations. He hadn't been proven guilty beyond a reasonable doubt. Certainly the court can hear the allegations. Whatever weight the court gives fine, but they're allegations, and I understand that.
N.T., 11/8/2012, at 22. Moreover, while defense counsel argued that the allegations "were designed to insight and inflame the court[, ]" the trial court stated, "I don't think that's the case." Id. Indeed, the five to ten year sentence imposed corresponded with the mandatory minimum sentence for Reddick's conviction of PWID while in the possession or control of a firearm. The trial court ordered the remaining sentences on the complaint to run concurrently. However, the court did direct that a two and one-half to five year sentence for one of the gun charges in Reddick's other case run consecutively. It provided the following rationale for the sentencing scheme:
All of your cases involve guns. You have a complete history of nothing but guns and nothing but violence and of course drugs, and this was the initial case that brought you in here that was one from 2009 which you get the 5 to 10 years, but even after that you still continue to be involved in criminal conduct, that's why I did that.
Id. at 26. Therefore, our review of the guilty plea and sentencing proceeding reveals no basis to conclude that the trial court improperly relied on the allegations of Reddick's open homicide charge when imposing the sentence in the present case. Accordingly, no relief is warranted on this claim.
Lastly, we note that on November 25, 2013, an en banc panel of this Court in Commonwealth v. Watley, 81 A.3d 108 (Pa.Super. 2013) (en banc), held that the mandatory minimum sentencing provision, 42 Pa.C.S. § 9712.1, which was applied in the instant case, "is no longer constitutionally sound in light of the Alleyne v. United States, U.S. __, __133 S.Ct. 2151 (2013)[.]" Id. at 112, n.2.
In Alleyne, the Supreme Court held that "[a]ny fact that, by law, increases the penalty for a crime is an 'element' that must be submitted to the jury and found beyond a reasonable doubt." Alleyne, 133 S.Ct. at 2155. The Court expanded upon its holding in Apprendi,  which applied only to facts that increased the statutory maximum for a crime, to include facts which increase the mandatory minimum sentence. Id. Accordingly, under the holding of Alleyne, the "fact" that a defendant sold drugs while in "physical possession or control of a firearm" under Section 9712.1, must be submitted to a jury.
The Sixth Amendment concerns of Alleyne, however, are not applicable here since Reddick entered a guilty plea. Furthermore, it is clear from the plea colloquy – facts Reddick admitted to – that, at the time he sold drugs, he was "in physical possession or control of a firearm." 42 Pa.C.S. § 9712.1(a). See N.T., 11/8/2012, at 11-12 (Reddick retrieved drugs and gun from same car). Moreover, he pled guilty to two firearms offenses. Therefore, he would be entitled to no relief under either Alleyne or Watley.
Therefore, we agree with counsel's assessment that the appeal is frivolous, and grant counsel's petition to withdraw.
Judgment of sentence affirmed.
Petition to withdraw as counsel granted.