United States District Court, Western District of Pennsylvania
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
SUSAN PARADISE BAXTER UNITED STATES MAGISTRATE JUDGE
It is respectfully recommended that the petition for a writ of habeas corpus filed by state prisoner Poncho Bruno Florez ("Petitioner") pursuant to 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), be denied as untimely and that a certificate of appealability be denied.
A. Relevant Background
On July 7, 2008, Petitioner appeared before the Court of Common Pleas of Erie County and entered guilty pleas at Criminal Docket Nos. 885 through 888 of 2008, and no contest pleas a Criminal Docket Nos. 889, 890 and 915 of 2008, pursuant to agreements whereby he entered pleas to a single count of robbery at the respective docket numbers with the remaining criminal counts being nolle prossed. Alison Scarpitti, Esquire, was Petitioner's attorney.
Several days later, on July 14, 2008, Petitioner filed a pro se motion to withdraw his pleas and to proceed to trial. (CP Dkt. No. 6). There is no order in the record indicating that the Court of Common Pleas ruled on the pro se motion. The court likely did not consider it because Petitioner had counsel and hybrid representation in criminal cases is not permitted in Pennsylvania. Commonwealth v. Reid, 642 A.2d 453, 183-84 (Pa. 1994). In any event, Petitioner did not mention any desire to withdraw his pleas at his sentencing, which was conducted on September 10, 2008. He once again acknowledged his guilt (Sentencing Tr. at 9), and the Common Pleas Court sentenced him to an aggregate term of 37 ½ to 75 years' incarceration.
Approximately two months later, Petitioner filed a pro se motion in which he requested that his sentence be modified. He also asserted that Attorney Scarpitti was ineffective for failing to file an appeal of his sentence. (CP Dkt. No. 9). The Common Pleas Court construed the motion as one filed under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. § 9541 et seq., and appointed Nicole Sloane, Esquire, to represent him. Attorney Sloane filed a supplemental PCRA motion and requested, inter alia, that Petitioner's post-sentence and appellate rights be reinstated. (CP Dkt. No. 13). The Common Pleas Court granted this request. (CP Dkt. No. 15).
Petitioner, through Attorney Sloane, next filed a post-sentence motion in which he requested that he be permitted to withdraw his guilty pleas. He also requested that one of the court's sentencing orders be corrected to reflect the proper sentence as stated at the sentencing hearing. (CP Dkt. No. 17). The Common Pleas Court granted the latter request and on January 16, 2009, it corrected its sentencing order at Criminal Docket No. 890 of 2008. It denied the remainder of Petitioner's motion. (CP Dkt. No. 18).
Petitioner, through Attorney Sloane, filed an appeal with the Superior Court of Pennsylvania. Attorney Sloane also requested that the Superior Court grant her permission to withdraw from Petitioner's representation pursuant to Anders v. California, 386 U.S. 738 (1967). (CP Dkt. Nos. 19-20).
On September 10, 2009, the Superior Court issued a Memorandum in which it affirmed Petitioner's judgments of sentence. Commonwealth v. Florez, 346-353 WDA 2009, slip op. (Pa.Super.Ct. Sept. 10, 2009). It held:
When faced with a purported Anders brief, this Court may not review the merits of the underlying issues without first passing on the request to withdraw. Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa. Super. 1997). To be permitted to withdraw pursuant to Anders, counsel must meet the following requirements:
(1) petition the court for leave to withdraw, stating that after making a conscientious examination of the record it has been determined that the appeal would be frivolous; (2) file a brief referring to anything that might arguably support the appeal, but which does not resemble a "no-merit" letter or amicus curiae brief; and (3) furnish a copy of the brief to the defendant and advise him of his right to retain counsel or raise any additional points that he deems worthy of the court's attention. After establishing the antecedent requirements have been met, this Court must then make an independent evaluation of the record to determine whether the appeal is, in fact, wholly frivolous.
Commonwealth v. Boyd, 763 A.2d 421, 423 (Pa. Super. 2000) (citations and quotation marks omitted). A review of the record indicates that appointed counsel has complied with all of the aforementioned requirements of Anders, as restated by Boyd. Accordingly, we will determine the accuracy of appointed counsel's averment that this appeal is wholly frivolous.
The Anders brief for Appellant presents the following issue:
Whether the trial court erred when it denied Appellant's motion to withdraw his guilty plea?
Anders brief for Appellant, at 3.3
3 During the pendency of this appeal, Appellant filed pro se a "Motion for Appointment of Counsel and Affidavit in Support Of" that this Court denied on June 11, 2009. We have reviewed the allegations presented by Appellant within the motion in order to determine whether any of these allegations could constitute a pro se response by Appellant to counsel's Anders brief. Essentially, the allegations presented by Appellant in the motion constitute a claim that counsel was ineffective for failing to attempt to withdraw his guilty plea. In fact, appointed counsel filed a post-sentence motion to withdraw Appellant's guilty plea after his post-sentence rights were restored. Accordingly, Appellant's motion does not present a proper response to appointed counsel's Anders brief, and we will not consider it further.
Essentially, the Anders brief asserts that the trial court erred by failing to grant Appellant's pre-sentence request to withdraw his guilty plea. We disagree. Although a defendant does not have an automatic right to withdraw their guilty plea before sentencing, a pre-sentence request to withdraw a guilty plea should be freely granted where the defendant offers a "fair and just reason" for the withdrawal and where the Commonwealth is not substantially handicapped by the withdrawal of the plea. See Commonwealth v. Randolph, 553 Pa. 224, 228-29, 718 A.2d 1242, 1244-45 (1998). Generally, a "fair and just reason" has been interpreted by the appellate courts of this Commonwealth to mean the defendant's simple assertion of innocence. See Commonwealth v. Miller, 748 A.2d 733 (Pa. Super. 2000). However, a "fair and just reason" may not be presumed by any court from the defendant's mere request to withdraw the guilty plea and request to proceed to trial. See, e.g., Commonwealth v. Hollenbach, 544 A.2d 471, 475-76 (Pa. Super. 1988) (remanding matter to trial court upon ...