J-S58007-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NICHOLAS LOMAX,
Appellant No. 854 WDA 2013
Appeal from the Judgments of Sentence September 20, 2011
in the Court of Common Pleas of Allegheny County
Criminal Division at Nos.: CP-02-CR-0007260-2010;
CP-02-CR-0018407-2009
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED OCTOBER 15, 2014
In these consolidated cases, Appellant, Nicholas Lomax, appeals from
the judgments of sentence imposed following his entry of guilty pleas in case
Nos. CC 200918407 and CC 201007260. Counsel for Appellant has
petitioned to withdraw on the ground that Appellant’s issues on appeal are
wholly frivolous. We grant counsel’s petition to withdraw and affirm the
judgments of sentence.
On September 20, 2011, the trial court held a guilty plea and
sentencing hearing for cases CC 200918407 and CC 201007260.1 In case
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*
Retired Senior Judge assigned to the Superior Court.
1
Appellant also executed a nine-page, sixty-eight question written guilty
plea colloquy applicable to both cases while his attorney was available for
consultation.
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CC 200918407, Appellant entered an open guilty plea to one count each of
carrying a firearm without a license, possession of a firearm by a minor, and
person not to possess a firearm.2 The charges stem from a June 30, 2009
incident, during which the vehicle in which Appellant was a backseat
passenger drove directly at and nearly collided with an Allegheny County
Deputy Sheriff’s vehicle. Deputy Shatkoff3 ordered Appellant out of the
vehicle and observed him make a kicking motion under the backseat before
exiting. Deputy Shatkoff recovered a semi-automatic pistol from under the
backseat. At the September 20, 2011 hearing, Appellant’s counsel
requested a sentence in the mitigated range with a recommendation for boot
camp. The trial court sentenced Appellant in the standard range to a term of
forty-two to eighty-four months’ incarceration, followed by five years of
probation.4 The court did not recommend Appellant for boot camp.
In case CC 201007260, Appellant entered a negotiated guilty plea to
one count of person not to possess a firearm.5 In exchange for this plea, the
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2
18 Pa.C.S.A. §§ 6106(a)(1), 6110.1(a), and 6105(c)(1), respectively.
3
Our review of the certified record did not reveal Deputy Shatkoff’s first
name.
4
Appellant had previous adjudications in juvenile court for robbery and
possession of a firearm by a minor. (See N.T. Guilty Plea and Sentencing
Hearing, 9/20/11, at 9, 16).
5
18 Pa.C.S.A. § 6105(c)(1).
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Commonwealth withdrew the remaining charges brought against Appellant,
specifically, one count of carrying a firearm without a license and three
counts each of terroristic threats and simple assault.6 The charges arose
from an April 25, 2010 report to police by Appellant’s next-door neighbor
that Appellant had displayed a semi-automatic firearm to her ten and eleven
year old grandchildren and threatened to shoot and kill them. The trial court
sentenced Appellant to a term of not less nineteen nor more than thirty-
eight months’ incarceration. Pursuant to the plea agreement, the court ran
this sentence concurrently with the sentence imposed in case CC
200918407.
Appellant did not file post-sentence motions or a direct appeal.
Counsel for Appellant filed a petition to withdraw from representation, and
the court granted the petition and appointed new counsel. On September
20, 2012, Appellant filed a counseled PCRA petition. On October 30, 2012,
the PCRA court entered an order granting the petition and reinstating
Appellant’s post-sentence and direct appeal rights.
On November 9, 2012, Appellant filed post-sentence motions in which
he sought to withdraw his guilty pleas or have the court reconsider his
sentence. On April 18, 2013, the post-sentence motions were denied by
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6
18 Pa.C.S.A. §§ 6106(a)(1), 2706(a)(1), and 2701(a)(3), respectively.
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operation of law. See Pa.R.Crim.P. 720(B)(3)(b). This timely appeal
followed.7
On June 10, 2014, counsel for Appellant filed an Anders8 brief and a
petition to withdraw as counsel stating her belief that this appeal is wholly
frivolous. (See Motion to Withdraw as Counsel, 6/10/14, at unnumbered
page 4). Counsel has submitted to this Court a copy of her letter to
Appellant, enclosing a copy of the Anders brief, informing him of the
petition to withdraw, and advising him of his right to retain new counsel or
proceed with the appeal pro se. (See Letter from Christy P. Foreman, Esq.
to Appellant, 6/10/14, at unnumbered page 1). Appellant has not
responded.
[I]n the Anders brief that accompanies . . . 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 conclusion that the appeal is
frivolous.
Santiago, supra at 361.
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7
Pursuant to the trial court’s order, Appellant filed a timely statement of
errors complained of on appeal on September 5, 2013. See Pa.R.A.P.
1925(b). The court filed a Rule 1925(a) opinion on December 5, 2013. See
Pa.R.A.P. 1925(a).
8
Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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Anders counsel must also provide a copy of the Anders
petition and brief to the appellant, advising the appellant of the
right to retain new counsel, proceed pro se or raise any
additional points worthy of this Court’s attention.
If counsel does not fulfill the aforesaid technical
requirements of Anders, this Court will deny the petition to
withdraw and remand the case with appropriate instructions
(e.g., directing counsel to either comply with Anders or file an
advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
petition and brief satisfy Anders, we will then undertake our
own review of the appeal to determine if it is wholly frivolous. If
the appeal is frivolous, we will grant the withdrawal petition and
affirm the judgment of sentence. However, if there are non-
frivolous issues, we will deny the petition and remand for the
filing of an advocate’s brief.
Commonwealth v. O’Malley, 957 A.2d 1265, 1266 (Pa. Super. 2008)
(citations omitted).
In the instant case, counsel has complied with the Anders and
Santiago requirements. She has submitted a brief that summarizes the
case, (see Anders Brief, at 7-11); referred to anything that might arguably
support the appeal, (see id. at 13, 18, 22); and set forth her reasoning and
conclusion that the appeal is frivolous, (see id. at 12-22). See Santiago,
supra at 361. Counsel has filed a petition to withdraw, sent Appellant a
letter advising that she concluded that there are no non-frivolous issues,
provided him with a copy of the Anders brief, and notified him of his right to
retain new counsel or proceed pro se. Because counsel’s petition and brief
satisfy the requirements of Anders and Santiago, we will undertake our
own review of the appeal to determine if it is wholly frivolous. See
O’Malley, supra at 1266.
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The Anders Brief raises the following issues for our review:
1. Whether Appellant’s guilty plea was unlawfully induced
because it was not knowing, intelligent, and voluntary[?]
2. Whether the sentence imposed upon Appellant was
excessive[?]
(Anders Brief, at 6).
In his first issue, Appellant challenges the validity of his guilty pleas,
claiming that the pleas were unlawfully induced because he did not
knowingly, intelligently and voluntarily enter them. (See Anders Brief, at
13). Specifically, Appellant argues that the pleas were invalid because the
trial court rejected the negotiated plea agreement and inappropriately
refused to make a recommendation for boot camp. (See id.). He also
asserts that trial counsel did not fully explain the plea agreement to him.
(See id.). This issue does not merit relief.
“Our law is clear that, to be valid, a guilty plea must be knowingly,
voluntarily and intelligently entered.” Commonwealth v. Pollard, 832
A.2d 517, 522 (Pa. Super. 2003) (citation omitted). “[T]he decision as to
whether to allow a defendant to [withdraw a guilty plea] is a matter within
the sound discretion of the trial court.” Id. (citation omitted). “In
considering whether the [trial] court abused its discretion in not permitting
withdrawal of the plea it must be emphasized that there is an important
distinction between presentencing attempts to withdraw a guilty plea and
post-sentencing attempts.” Commonwealth v. Shaffer, 446 A.2d 591,
592-93 (Pa. 1982).
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[A]fter the court has imposed a sentence, a defendant can
withdraw his guilty plea only where necessary to correct a
manifest injustice. [P]ost-sentence motions for withdrawal are
subject to higher scrutiny since courts strive to discourage the
entry of guilty pleas as sentencing-testing devices. . . .
. . . [A] manifest injustice occurs when a plea is not tendered
knowingly, intelligently, voluntarily, and understandingly.
* * *
The reviewing Court will evaluate the adequacy of the plea
colloquy and the voluntariness of the resulting plea by examining
the totality of the circumstances surrounding the entry of that
plea. Pennsylvania law presumes a defendant who entered a
guilty plea was aware of what he was doing, and the defendant
bears the burden of proving otherwise.
Commonwealth v. Prendes, 97 A.3d 337, 352 (Pa. Super. 2014) (citations
and quotation marks omitted).
“Rule 590 of the Pennsylvania Rules of Criminal Procedure requires
that a guilty plea be offered in open court, and provides a procedure to
determine whether the plea is voluntarily, knowingly, and intelligently
entered.” Commonwealth v. Yeomans, 24 A.3d 1044, 1046-47 (Pa.
Super. 2011) (citation omitted). The comment to the rule provides, in
pertinent part:
At a minimum the judge should ask questions to elicit the
following information:
(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?
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(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?
(6) Is the defendant aware that the judge is not bound by the
terms of any plea agreement tendered unless the judge accepts
such agreement?
Pa.R.Crim.P. 590, Comment.
When addressing an appellate challenge to the validity of a guilty plea,
we are mindful that “[a] person who elects to plead guilty is bound by the
statements he makes in open court while under oath and may not later
assert grounds for withdrawing the plea which contradict the statements he
made at his plea colloquy.” Yeomans, supra at 1047 (citation omitted).
Here, at the guilty plea and sentencing hearing, the Commonwealth
explained that there was no plea agreement with respect to case CC
200918407. (See N.T. Guilty Plea and Sentencing Hearing, 9/20/11, at 3).
The Commonwealth further explained that, in case CC 201007260, there
was a negotiated plea agreement pursuant to which the Commonwealth
agreed to withdraw the remaining charges brought against Appellant and the
sentence would run concurrently with the sentence in case CC 200918407.
(See id. at 3-4). Appellant indicated that he understood the terms of the
plea agreement and that he did not have any questions. (See id. at 4).
The court went over the charges brought against Appellant and the
maximum potential sentences and fines that it could impose, and the
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Commonwealth explained the factual bases for the pleas. (See id. at 4-9).
The court engaged Appellant in an oral colloquy in which it apprised him of
his right to a trial and of the Commonwealth’s burden of proof. (See id. at
10). Appellant assured the court that he understood his rights, that he was
pleading guilty to the charges because he was guilty, and that there had
been no threats or promises made to influence him to plead guilty. (See id.
at 10-11; see also id. at 16).
With respect to the written plea colloquy, Appellant indicated that he
filled out the form while counsel was available for consultation, that he
understood its contents, and that he did not have any questions about the
form.9 (See id. at 12). Appellant also averred that he was satisfied with
counsel’s representation. (See id. at 12-13). The trial court accepted
Appellant’s guilty pleas and stated its finding that Appellant understood the
proceedings and knowingly, intelligently, and voluntary entered the pleas.
(See id. at 13). The court advised Appellant of his right to file a petition
seeking withdrawal of his guilty pleas before sentencing, and Appellant
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9
In the written plea colloquy, Appellant acknowledged, inter alia, that he:
(1) was aware of the nature of the charges to which he was pleading guilty
(see Guilty Plea Colloquy, 9/20/11, at 2 ¶¶ 6, 8); (2) understood the factual
bases for the pleas (see id. at ¶ 7) (3) understood his right to trial by jury
(see id. at ¶ 9); (4) understood that he was presumed innocent until proven
guilty (see id. at 3 ¶ 17); (5) was aware of the permissible range of
sentences for the offenses charged (see id. at 7 ¶ 44); and (6) understood
that the court was not bound by the terms of the plea agreement (see id. at
8 ¶ 58); see also Pa.R.Crim.P. 590, Comment.
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expressly gave up this right and elected to proceed immediately to
sentencing. (See id.). When the court asked Appellant what he wished to
say on his behalf, Appellant responded, “I accept the plea.” (Id. at 15).
During the sentencing portion of the hearing, Appellant’s counsel
requested a sentence in the mitigated range with a recommendation for boot
camp. (See id. at 15). However, counsel also advised: “I did explain to
[Appellant] that this is just a recommendation. That doesn’t always mean it
is going to happen. . . . I explained that to [Appellant’s] mother and they are
fully aware of it.” (Id.). The court declined to recommend boot camp or
impose a mitigated-range sentence, explaining:
I’m not going to recommend boot camp. I think he is a
dangerous person. He has guns, guns, and more guns.
Robbery. It doesn’t seem to matter that he has a conviction
pending. He gets another one. I think this is ridiculous to have
anything less than a standard range sentence in this case. And I
will not recommend boot camp, because again, I don’t think
that’s appropriate for someone who was involved in this much
criminal activity.
* * *
I think this [sentence] is appropriate, due to the fact
that [Appellant] has been involved with firearms throughout his
young life. Pretty often, it seems, and these are certainly
situations that are just [rife] with potential disaster— . . . a
young man with a firearm, over and over, repeatedly after he
has been caught and told and knows not to continue and
continues to break the law with [p]ossession of a [f]irearm and
these charges. That’s it. I think this is appropriate. It is a
standard range sentence. . . .
(Id. at 17-19).
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Thus, a review of the record belies Appellant’s claims that the trial
court rejected the plea agreement and inappropriately refused to make a
recommendation for boot camp. Further, Appellant stated on the record that
he understood the terms of the plea agreement and that he “accept[ed] the
plea” (id. at 15; see id. at 3-4); he cannot now “assert grounds for
withdrawing the plea which contradict the statements he made at his plea
colloquy.” Yeomans, supra at 1047 (citation omitted). Upon examination
of the totality of the circumstances, see Prendes, supra at 352, we
conclude that the record wholly supports the trial court’s finding that
Appellant knowingly, intelligently and voluntarily pleaded guilty. Therefore,
the court did not abuse its discretion in denying Appellant’s post-sentence
request to withdraw his guilty pleas. See Pollard, supra at 522.
Appellant’s first issue lacks merit.10
In his second issue, Appellant challenges the discretionary aspects of
his sentence. Specifically, he argues that the sentence imposed was
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10
To the extent Appellant argues that counsel was ineffective in connection
with entry of the guilty pleas (see Anders Brief, at 2, 13; Commonwealth’s
Brief, at 14), we dismiss his claim without prejudice, should he decide to
pursue it in a timely-filed PCRA petition. See Commonwealth v. Holmes,
79 A.3d 562, 563 (Pa. 2013) (reaffirming general rule that ineffective
assistance of counsel claims must await collateral review); see also
Commonwealth v. Stollar, 84 A.3d 635, 652 (Pa. 2014), cert. denied, 134
S.Ct. 1798 (2014) (dismissing, pursuant to Holmes, appellant’s ineffective
assistance of counsel claims raised on direct appeal without prejudice to
pursue them on collateral review).
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excessive even though it was within the standard range. (See Anders
Brief, at 6, 18, 22). This issue does not merit relief.
Our standard of review in sentencing matters is well settled:
Sentencing is a matter vested in the sound discretion of
the sentencing judge, and a sentence will not be disturbed on
appeal absent a manifest abuse of discretion. An abuse of
discretion is more than just an error in judgment and, on appeal,
the trial court will not be found to have abused its discretion
unless the record discloses that the judgment exercised was
manifestly unreasonable, or the result of partiality, prejudice,
bias, or ill-will.
Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa. Super. 2013), appeal
denied, 85 A.3d 481 (Pa. 2014) (citation omitted).
However, “[t]he right to appeal the discretionary aspects of a sentence
is not absolute.” Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa.
Super. 2011) (citation omitted).
Before we reach the merits of this [issue], we must engage
in a four part analysis to determine: (1) whether the appeal is
timely; (2) whether Appellant preserved his issue; (3) whether
Appellant’s brief includes a concise statement of the reasons
relied upon for allowance of appeal with respect to the
discretionary aspects of sentence [See Pa.R.A.P. 2119(f)]; and
(4) whether the concise statement raises a substantial question
that the sentence is appropriate under the sentencing code. . . .
[I]f the appeal satisfies each of these four requirements, we will
then proceed to decide the substantive merits of the case.
Commonwealth v. Edwards, 71 A.3d 323, 329-30 (Pa. Super. 2013),
appeal denied, 81 A.3d 75 (Pa. 2013) (citations and quotation marks
omitted).
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In the instant case, Appellant has complied with the first two
requirements because he filed a timely notice of appeal and preserved his
claim in a timely post-sentence motion. See id. While the Anders brief
does not contain a Rule 2119(f) statement, we decline to find waiver in light
of counsel’s petition to withdraw. See Commonwealth v. Lilley, 978 A.2d
995, 998 (Pa. Super. 2009) (addressing appellant’s challenges to
discretionary aspects of sentence despite deficient Rule 2119(f) statement in
Anders brief); see also Commonwealth v. Hernandez, 783 A.2d 784,
787 (Pa. Super. 2001) (concluding that Anders requires review of issues
otherwise waived on appeal).11 With respect to the fourth requirement:
The determination of what constitutes a substantial
question must be evaluated on a case-by-case basis. A
substantial question exits only when the appellant advances a
colorable argument that the sentencing judge’s actions were
either: (1) inconsistent with a specific provision of the
Sentencing Code; or (2) contrary to the fundamental norms
which underlie the sentencing process.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013), appeal
denied, 77 A.3d 1258 (Pa. 2013) (citations and quotation marks omitted).
This Court has held that “a bald assertion that a sentence is excessive does
not by itself raise a substantial question justifying this Court’s review of the
merits of the underlying claim.” Commonwealth v. Fisher, 47 A.3d 155,
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11
We also decline to find waiver on the basis that the Commonwealth has
not objected to Appellant’s failure to include a Rule 2119(f) statement. See
Commonwealth v. Titus, 816 A.2d 251, 255 (Pa. Super. 2003).
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159 (Pa. Super. 2012), appeal denied, 62 A.3d 378 (Pa. 2013) (citation
omitted). Thus, Appellant’s bald claim that his sentence is excessive does
not raise a substantial question. See id.
Moreover, after independent review of the record, see O’Malley,
supra at 1266, we conclude that Appellant’s claim that his sentence is
excessive is frivolous, and the trial court did not abuse its discretion in
imposing the sentence. See Clarke, supra at 1287. As discussed above,
the trial court comprehensively stated on the record its reasons for its
determination that, based on Appellant’s history of illegal involvement with
firearms, a sentence in the mitigated rage with a recommendation for boot
camp was inappropriate. Furthermore, we determine that there are no other
non-frivolous bases for appeal, and this appeal is “wholly frivolous.”
O’Malley, supra at 1266.
Judgments of sentence affirmed. Petition for leave to withdraw as
counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/15/2014
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Com. v. Lomax, N.
Combined Opinion