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[U] Commonwealth v. Beck

Superior Court of Pennsylvania

March 6, 2014



Appeal from the Judgment of Sentence May 23, 2012 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0009123-2011, CP-02-CR-0016194-2010.




Vaughn Anthony Beck appeals from the May 23, 2012 judgment of sentence imposed after he entered a negotiated guilty plea in two separate criminal actions to one count each of possession with intent to deliver a controlled substance ("PWID"), possession of a controlled substance, possession of drug paraphernalia, criminal conspiracy, assault by prisoner, and terroristic threats. 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.

We glean the facts giving rise to the charges at No. CP-02-CR-0016194-2010 from the Commonwealth's on-the-record proffer of evidence during the guilty plea proceeding. Appellant engaged in a drug deal with an undercover Pennsylvania State Trooper in the parking lot of a Walmart store in the North Versailles section of Allegheny County. A subsequent search of the vehicle conducted by the trooper and an assisting officer yielded four cell phones owned by Appellant and 10.4 grams of a substance later verified as heroin. N.T. Guilty Pleas & Sentencing, 5/23/12, at 5-9. The charges of terroristic threats and assault by a prisoner at No. CP-02-CR-0009123-2011, resulted from Appellant punching a prison guard in the face and threatening to throw a cup of urine at the next person to open his cell door. N.T. Preliminary Hearing, 7/26/11, at 3-18.

Following the unsuccessful litigation of a suppression motion, Appellant entered a negotiated guilty plea in the consolidated actions. This plea agreement provided that: (1) Appellant would plead guilty to all charges; (2) the Commonwealth would not seek the minimum mandatory sentence of five years of incarceration for possession with the intent to deliver; (3) Appellant would receive a sentence of four to eight years of imprisonment for possession with the intent to deliver; and (4) Appellant would receive a consecutive sentence of one and one-half to three years of incarceration for assault by prisoner. After Appellant completed both a written and oral colloquy, the court sentenced Appellant in accordance with the terms of the negotiated plea agreement.

Appellant timely filed a pro se post-sentence motion, alleging that his sentence was excessive. Instant counsel was appointed to represent Appellant, and the court granted leave for counsel to file an amended post- sentence motion.[1] Appellant filed a timely notice of appeal, and the trial court ordered him to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Pursuant to Pa.R.A.P. 1925(b) and 1925(c)(4), counsel for Appellant filed a concise statement and advised the court he would be filing an Anders brief and petition to withdraw.

Counsel for Appellant has presented four issues on appeal.

1. Whether the plea was not knowingly, intelligently, and voluntarily entered?
2. Whether counsel gave ineffective assistance for allowing Appellant to plead guilty when the plea was unknowingly, unintelligently and involuntarily entered?
3. Whether the trial court abused its discretion in sentencing Appellant?
4. Whether the sentence was illegal?

Appellant's brief, at 6.

Counsel has filed a petition to withdraw from representation and an Anders brief. Therefore, before addressing the merits of the issues raised on appeal, this Court must first review the request to withdraw. Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.Super. 2005). As this Court held in Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa.Super. 2009), a petition to withdraw must satisfy certain procedural requirements. Counsel must: (1) petition the court for leave to withdraw stating that, after making a conscientious examination of the record, counsel has determined that an appeal would be frivolous; (2) furnish a copy of the brief to the defendant; and (3) advise the defendant that he has the right to retain private counsel or raise additional arguments that the defendant deems worthy of the court's attention. Id.

Herein, counsel's petition to withdraw from representation states that he made a conscientious review of the record and concluded that the appeal is wholly frivolous. Additionally, counsel notified Appellant that he was withdrawing and he furnished Appellant with a copy of the petition to withdraw, a copy of the Anders brief, and a statement advising Appellant of his right to retain new counsel or proceed pro se to raise any points he believed worthy of this Court's attention. Counsel attached a copy of the statement to the petition. Accordingly, counsel has satisfied the procedural requirements of Anders.

Having concluded that counsel has complied with the procedural mandates of Anders, we now determine whether counsel's Anders brief meets the substantive dictates of Santiago. According to Santiago:

in the Anders brief that accompanies court-appointed counsel's petition to withdraw, 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 conclusions that the appeal is frivolous.

Santiago, supra at 361.

Counsel's Anders brief meets all of the substantive dictates of Santiago. Counsel provided the facts and procedural history of the case, with appropriate citations to the record. While he identifies possible issues from his review of the record, counsel concludes that the appeal is frivolous and advances reasons in support of that conclusion. Additionally, in demonstrating the frivolity of each issue, counsel has articulated the relevant facts of record, controlling case law, and statutes on point that have led to his conclusion.

Having concluded that counsel has satisfied the procedural mandates of Anders and substantive requirements of Santiago, we now address Appellant's issues raised in this appeal. We are mindful that, since Appellant entered into a negotiated plea agreement, the only issues that can possibly be preserved for appeal are legality of sentence, jurisdiction, and whether the plea was knowing, intelligent, and voluntary. Commonwealth v. Main, 6 A.3d 1026 (Pa.Super. 2010). Counsel has addressed the merits of all such issues in his Anders brief, together with an ineffective assistance of counsel claim.

The first issue raised, whether the guilty plea was knowing, intelligent, and voluntary, is waived because Appellant did not seek to withdraw his guilty plea in a post-sentence motion. Commonwealth v. Rush, 959 A.2d 945 (Pa.Super. 2008). Nonetheless, even if it were not waived, the record supports a finding that, under the totality of the circumstances, Appellant knowingly, voluntarily, and intelligently entered into the guilty plea agreement. Appellant was subject to an oral colloquy by the court and stated that he understood his rights, the terms of the negotiated plea, and that he was pleading guilty to all charges. Appellant also completed a written colloquy, and represented to the court at sentencing that he read and understood each question, and answered honestly. N.T., Guilty Pleas and Sentencing, 5/23/12, at 4. Additionally, Appellant confirmed that he discussed with his attorney the nature of the crimes to which he was pleading guilty, the maximum penalties that could be imposed, and his right to a trial on all charges. Id. This claim is frivolous.

Next, Appellant avers that trial counsel was ineffective. Generally, ineffective assistance of counsel claims are deferred for collateral review under the PCRA. Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002). There is a narrow exception when the defendant waives his right to future post-conviction proceedings, a circumstance that is not present herein. Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013). Since the exception is inapplicable, Appellant's claim of ineffective assistance of counsel is deferred for collateral review.

In Appellant's third issue he asserts that the trial court abused its discretion in sentencing. This appears to be based on a belief that his sentence was excessive, which presents a challenge to the discretionary aspects of Appellant's sentence. As a matter of law, Appellant has waived any challenge to the discretionary aspects of his sentence because he entered a plea agreement that contained a negotiated sentence, which was accepted and imposed by the sentencing court. Commonwealth v. Reichle, 589 A.2d 1140, 1141 (Pa.Super. 1991). We reasoned in Reichle that, "[p]ermitting a discretionary appeal following the entry of a negotiated plea would undermine the designs and goals of plea bargaining, and 'would make a sham of the negotiated plea process.'" Id. at 1141 (quoting Commonwealth v. Coles, 530 A.2d 453, 458 (Pa.Super. 1987)).[2] Thus, Appellant's claim is wholly frivolous.

Finally, Appellant challenges the legality of his sentence. A sentence is illegal when it is not statutorily authorized or it exceeds the statutory maximum sentence. Commonwealth v. Mears, 972 A.2d 1210, 1211 (Pa.Super. 2009). None of the sentences imposed exceeded the statutory maximum for that offense. Pursuant to the plea agreement, Appellant was sentenced on two counts only: PWID (heroin) and assault by a prisoner.[3] PWID is an ungraded felony, which carries a statutory maximum sentence of fifteen years imprisonment. 35 P.S. § 780-113(f)(1). Appellant received a sentence of four to eight years imprisonment on that charge. The crime of assault by a prisoner carries a maximum sentence of ten years incarceration; Appellant was sentenced to one to one and one-half years imprisonment. Hence, the sentences imposed were far below the statutory maximum.

Appellant also questions whether the trial court complied with the recidivism risk reduction incentive sentencing ("RRRI") statute, which raises an issue of legality of the sentence. See Commonwealth v. Pardo, 35 A.3d 1222, 1230 (Pa.Super. 2011), (citing Main, supra at 1028, for the proposition that "when a defendant challenges a trial court's disqualification of his entry into the RRRI program, the issue is one of legality of the sentence and is non-waivable."). After noting that Appellant's eligibility for RRRI was addressed at sentencing, and that both the Commonwealth's attorney and Appellant's attorney agreed that Appellant's convictions of assault by a prisoner and terroristic threats rendered him ineligible pursuant to 61 Pa.C.S. § 4503(3), counsel correctly concluded that this issue was frivolous.

After a thorough independent review of the record, we agree that there are no preserved non-frivolous issues for appeal. Thus, we grant Thomas N. Farrell, Esquire's petition to withdraw, and we affirm.

Judgment of sentence affirmed.

Judgment Entered.

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