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[U] Commonwealth v. Underwood

Superior Court of Pennsylvania

February 26, 2014



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




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 An additional charge of failing to obey the stop sign, a summary offense, was withdrawn.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 withdraw his plea of guilty?

Appellant's brief at 5.

As noted above, appellant's counsel, Attorney Foreman, has filed a petition to withdraw and accompanying Anders brief. "When presented with an Anders brief, this Court may not review the merits of the underlying issues without first passing on the request to withdraw." Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa.Super. 2010), citing Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007) (en banc) (citation omitted).

In order for counsel to withdraw from an appeal pursuant to Anders, certain requirements must be met, and counsel 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.

Id., quoting Commonwealth v. Santiago, 602 Pa. 159, 178-179, 978 A.2d 349, 361 (2009).

Our review of Attorney Foreman's application to withdraw, supporting documentation, and Anders brief reveals that she has complied with all of the foregoing requirements. We note that counsel also furnished a copy of the brief to appellant, advised him of his right to retain new counsel, proceed pro se, or raise any additional points that he deems worthy of this court's attention, and attached to the Anders petition a copy of the letter sent to appellant as required under Commonwealth v. Millisock, 873 A.2d 748, 751 (Pa.Super. 2005). See Daniels, 999 A.2d at 594 ("While the Supreme Court in Santiago set forth the new requirements for an Anders brief, which are quoted above, the holding did not abrogate the notice requirements set forth in Millisock that remain binding legal precedent."). As Attorney Foreman has complied with all of the requirements set forth above, we now turn to any issues counsel states arguably support the appeal.[3]

"When considering a petition to withdraw a plea submitted to a trial court after sentencing, it is well-established that a showing of prejudice on the order of manifest injustice is required before withdrawal is properly justified." Commonwealth v. Byrne, 833 A.2d 729, 737 (Pa.Super. 2003), quoting Commonwealth v. Johns, 812 A.2d 1260, 1261 (Pa.Super. 2002) (emphasis in original).

The standard for withdrawal of a guilty plea after imposition of sentence is much higher [than the standard applicable to a presentence motion to withdraw]; a showing of prejudice on the order of manifest injustice is required before withdrawal is properly justified. A plea rises to the level of manifest injustice when it was entered into involuntarily, unknowingly, or unintelligently.

Id., quoting Commonwealth v. Muhammad, 794 A.2d 378, 383 (Pa.Super. 2002) (citations and internal quotation marks omitted).

A showing of manifest injustice is required after imposition of sentence since, at this stage of the proceeding, permitting the liberal standard enunciated in [the presentence setting] might encourage the entrance of a plea as a 'sentence testing device.' We note that disappointment by a defendant in the sentence actually imposed does not represent manifest injustice.

Id. (citations omitted).

At the September 14, 2011 plea hearing, it was made clear to appellant that he was pleading guilty to PWID. (Notes of testimony, 9/14/11 at 4.) In addition, the trial court explained to appellant that his guilty plea could affect his parole status:

Q. All right. Now, when this occurred in March of 2008 were you on probation or parole at the time?
A. Yes, sir.
Q. So do you understand by pleading guilty today, may subject you to a sentence in addition to any sentence I impose upon you?
A. Your Honor, I am taking this plea --
Q. Do you understand the question I just asked you?
A. Yes, sir.
Q. Now, have there been any threats or promises, other than the potential plea agreement, [that] may have influenced your decision to plead guilty today?
A. No, sir.

Id. at 5.

Therefore, appellant's assertion in his post-sentence motion, that he was unaware he was pleading guilty to PWID and that his guilty plea could have consequences for his state parole, is belied by the record. "A person who elects to plead guilty is bound by the statements he makes in open court while under oath and he may not later assert grounds for withdrawing the plea which contradict the statements he made at his plea colloquy." Commonwealth v. Turetsky, 925 A.2d 876, 881 (Pa.Super. 2007), appeal denied, 596 Pa. 707, 940 A.2d 365 (2007), quoting Commonwealth v. Pollard, 832 A.2d 517, 524 (Pa.Super. 2003) (citations omitted). Furthermore, the written plea colloquy executed by appellant specifically informed him that,

Do you understand that the conviction that will result from your plea may serve as a violation of any term of state or federal probation or parole you may be serving?"; and "Do you understand that a violation of your state or federal probation or parole could result in the imposition of a further separate, or consecutive, term of imprisonment?

Docket No. 15, p. 8. Appellant checked the "Yes" box after each question and initialed the bottom of the page, and signed and dated the document.

From our review of the record, the trial court's plea colloquy was thorough and complete, and there is no indication that appellant's guilty plea was unknowing, unintelligent, or involuntary. To the contrary, appellant received the benefit of his negotiated plea bargain, including immediate parole with time already served. The trial court did not err in denying appellant's post-sentence motion to withdraw his plea.

Having determined that the instant appeal is wholly frivolous, and, after our own independent review, that there are no issues of arguable merit apparent from the record, we will grant Attorney Foreman's petition to withdraw and affirm the judgment of sentence.

Petition to withdraw granted. Judgment of sentence affirmed.

Judgment Entered.

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