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[U] Commonwealth v. Underwood

Superior Court of Pennsylvania

February 26, 2014

COMMONWEALTH OF PENNSYLVANIA
v.
ROGER UNDERWOOD, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence, September 14, 2011, in the Court of Common Pleas of Allegheny County Criminal Division at No. CP-02-CR-0010803-2008

BEFORE: FORD ELLIOTT, P.J.E., BOWES AND WECHT, JJ.

MEMORANDUM

FORD ELLIOTT, P.J.E.:

Roger Underwood appeals, nunc pro tunc, from the judgment of sentence of September 14, 2011. Appointed counsel, Christy P. Foreman, Esq., has filed a petition to withdraw and accompanying Anders brief.[1] We grant counsel permission to withdraw and affirm the judgment of sentence.

The trial court has aptly summarized the facts of this matter as follows:

This matter arises out of [appellant]'s arrest on March 13, 2008. The summary of facts that was presented at the time of the plea indicated that on March 13, 2008 detectives from the City of Pittsburgh were conducting surveillance unrelated to [appellant] on California Avenue. At that time, they observed [appellant] in a vehicle and another male entered the vehicle and an exchange was made. The other male then exited the vehicle, placed a small object in his pocket and entered a nearby residence. [Appellant], who was driving a Ford Expedition, then made a U-turn and failed to stop at a posted stop sign. The detectives initiated a traffic stop and determined that [appellant] was driving with a suspended license, non DUI related. [Appellant] gave consent to search the vehicle and the detectives located a knotted baggie containing 1.67 grams of cocaine. [Appellant] was placed under arrest and $600.00 of U.S. funds and 3 cell phones were recovered.

Trial court opinion, 1/9/13 at 2.

On September 14, 2011, appellant entered a negotiated guilty plea to one count each of possession of a controlled substance, possession with intent to deliver ("PWID"), and driving while operating privileges are suspended or revoked. An additional charge of failing to obey the stop sign, a summary offense, was withdrawn. Pursuant to the plea agreement, appellant was sentenced to 3 to 9 months' incarceration, with credit for time served and immediate parole.

Appellant filed a post-sentence motion on September 23, 2011, seeking to withdraw his plea. Appellant alleged that the plea was not entered knowingly, intelligently, and voluntarily where he was unaware the guilty plea would constitute a state parole violation. (Docket No. 18.) Appellant also claimed he was unaware that he was pleading guilty to PWID. (Id.)

Appellant's post-sentence motion was denied on October 3, 2011; however, apparently counsel never received a copy of the order. On December 7, 2011, appellant filed a pro se PCRA[2] petition seeking reinstatement of his direct appeal rights nunc pro tunc. Counsel was appointed and filed an amended petition on his behalf. On May 4, 2012, appellant's direct appeal rights were reinstated nunc pro tunc; and on June 1, 2012, appellant filed a notice of appeal. On June 7, 2012, appellant was ordered to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) within 21 days; appellant timely complied on June 28, 2012; and on January 9, 2013, the trial court filed a Rule 1925(a) opinion. Subsequently, on October 7, 2013, Attorney Foreman filed a petition to withdraw and Anders brief with this court.

Appellant has raised the following issues for this court's review:
1. Whether Appellant did not enter a plea of guilty knowingly and voluntarily?
2. Whether the trial court abused its discretion when it denied Appellant's Post-Sentence Motion to ...

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