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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JEFFREY MCELWEE, :
:
Appellant : No. 2148 EDA 2014
Appeal from the Judgment of Sentence Entered June 16, 2014,
in the Court of Common Pleas of Delaware County,
Criminal Division, at No(s): CP-23-CR-0002441-2014
BEFORE: ALLEN, OLSON, and STRASSBURGER, JJ.*
MEMORANDUM BY: STRASSBURGER, J.: FILED JANUARY 13, 2015
Jeffrey McElwee (Appellant) appeals from the judgment of sentence
imposed following his negotiated plea of guilty to one count of receiving
stolen property.1 In addition, Appellant’s counsel has filed a petition to
withdraw and brief pursuant to Anders v. California, 386 U.S. 738 (1967),
and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We affirm the
judgment of sentence and grant the petition to withdraw.
On April 8, 2014, Appellant was arrested and charged with receiving
stolen property because he was in possession of a vehicle that had been
reported stolen.2 Appellant told the police officer that the vehicle was not
1
18 Pa.C.S. § 3925(a).
2
Specifically, the vehicle had been reported stolen from Covington, Virginia
where a warrant had been issued for Appellant’s arrest on a charge of
unauthorized use of a vehicle.
*Retired Senior Judge assigned to the Superior Court.
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stolen, and he had paid $2,000 for it. Affidavit of Probable Cause, 4/9/2014.
On June 16, 2014, Appellant entered into a negotiated guilty plea to the
aforementioned charge in exchange for a sentence of time served to 23
months’ incarceration followed by three years of probation. The trial court
sentenced Appellant accordingly.
Appellant timely filed a notice of appeal. In response to the trial
court’s directive to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925, Appellant’s counsel filed a statement of intent to
file an Anders brief pursuant to Pa.R.A.P. 1925(c)(4).
The following principles guide our review of this matter.
Direct appeal counsel seeking to withdraw under Anders must
file a petition averring that, after a conscientious examination of
the record, counsel finds the appeal to be wholly frivolous.
Counsel must also file an Anders brief setting forth issues that
might arguably support the appeal along with any other issues
necessary for the effective appellate presentation thereof….
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 either to 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-
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frivolous issues, we will deny the petition and remand for the
filing of an advocate’s brief.
Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)
(citations omitted).
Our Supreme Court has clarified the requirements of the Anders brief:
Accordingly, we hold that 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
conclusion that the appeal is frivolous.
Santiago, 978 A.2d at 361.
We find that counsel has complied substantially with the requirements
of Anders and Santiago.3 We, therefore, will undertake a review of the
appeal to determine if it is wholly frivolous.
We begin by noting that “generally, a plea of guilty amounts to a
waiver of all defects and defenses except those concerning the jurisdiction of
the court, the legality of the sentence, and the validity of the guilty plea.”
Commonwealth v. Reichle, 589 A.2d 1140, 1141 (Pa. Super. 1991)
(citation omitted).
3
Appellant has filed a pro se response to the counsel’s Anders brief.
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In his Anders brief, counsel presents the following issues that might
arguably support an appeal: “Whether [the trial court] should have explored
the statement attributed to [Appellant] in the Affidavit of Probable Cause
attached to the Criminal Complaint that he did not steal the truck in question
and that he had paid $2,000 for it?” Anders Brief at 1.
A defendant wishing to challenge the voluntariness of a guilty
plea on direct appeal must either object during the plea colloquy
or file a motion to withdraw the plea within ten days of
sentencing. Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i). Failure to
employ either measure results in waiver. Commonwealth v.
Tareila, 895 A.2d 1266, 1270 n. 3 (Pa. Super. 2006).
Historically, Pennsylvania courts adhere to this waiver principle
because “[i]t is for the court which accepted the plea to consider
and correct, in the first instance, any error which may have been
committed.” Commonwealth v. Roberts, 237 Pa. Super. 336,
352 A.2d 140, 141 (1975) (holding that common and previously
condoned mistake of attacking guilty plea on direct appeal
without first filing petition to withdraw plea with trial court is
procedural error resulting in waiver; stating, “(t)he swift and
orderly administration of criminal justice requires that lower
courts be given the opportunity to rectify their errors before they
are considered on appeal”; “Strict adherence to this procedure
could, indeed, preclude an otherwise costly, time consuming,
and unnecessary appeal to this court”).
Commonwealth v. Lincoln, 72 A.3d 606, 609-10 (Pa. Super. 2013).
Instantly, Appellant has waived review of the validity of his guilty plea
because he failed to preserve it properly by objecting during the plea
colloquy or by filing a post-sentence motion to withdraw his plea. Thus, we
conclude that this issue is frivolous.
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Moreover, even if Appellant had preserved this issue, it would still be
frivolous. “[A]fter the court has imposed a sentence, a defendant can
withdraw his guilty plea ‘only where necessary to correct a manifest
injustice.’” Commonwealth v. Prendes, 97 A.3d 337, 352 (Pa. Super.
2014) (quoting Commonwealth v. Starr, 301 A.2d 592, 595 (Pa. 1973)).
To be valid, a guilty plea must be knowingly, voluntarily and
intelligently entered. [A] manifest injustice occurs when a plea is
not tendered knowingly, intelligently, voluntarily, and
understandingly. The Pennsylvania Rules of Criminal Procedure
mandate pleas be taken in open court and require the court to
conduct an on-the-record colloquy to ascertain whether a
defendant is aware of his rights and the consequences of his
plea. Under [Pa.R.Crim.P.] 590, the court should confirm, inter
alia, that a defendant understands: (1) the nature of the charges
to which he is pleading guilty; (2) the factual basis for the plea;
(3) he is giving up his right to trial by jury; (4) and the
presumption of innocence; (5) he is aware of the permissible
ranges of sentences and fines possible; and (6) the court is not
bound by the terms of the agreement unless the court accepts
the plea. 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.
Prendes, 97 A.3d at 352-53.
A review of the record reveals that the trial court inquired into the
appropriate areas. N.T., 6/16/2014, at 5-10. Moreover, Appellant and his
attorney signed a lengthy guilty plea statement and statement of post-
sentence rights. Notably, the trial court questioned Appellant as follows.
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The Court: In this case, the Commonwealth would have to
prove at trial that on the date charged you unlawfully retained or
disposed of the moveable property of another either believing
that it was stolen or -- either knowing it was stolen or believing
that it was probably stolen. Do you understand that?
[Appellant]: Yes, sir.
***
The Court: Do you understand by entering the plea,
you’re admitting your guilt?
[Appellant]: Yes, sir.
N.T., 6/16/2014, at 7-8.
As the plea and sentencing came to a close, Appellant raised the issue
that the vehicle involved was a truck he “put in [his] girlfriend’s name.” Id.
at 16. However, he wanted to know when he would be extradited to Virginia
to face the other charge in connection with this incident. In his pro se
response to counsel’s Anders Brief, Appellant claims once again that he
“bought [the truck and] put it in [his girlfriend’s] name[.]” Pro Se Brief at 1.
He also claims that he “was advised by [his] lawyer to plead guilty” and now
wishes to appeal on the basis that “the truck wasn’t stolen.” Id. at 2.
However, “[a] defendant is bound by the statements he makes during his
plea colloquy, and may not assert grounds for withdrawing the plea that
contradict statements made when he pled.” Commonwealth v. Stork, 737
A.2d 789, 790–91 (Pa. Super. 1999). Because Appellant admitted at his
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guilty plea hearing that he stole the truck, an argument on appeal that the
truck was not stolen is wholly frivolous.
Thus, after a review of the record, we agree with counsel that this
appeal is wholly frivolous. For these reasons, we affirm the judgment of
sentence and grant counsel’s petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/13/2015
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