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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ROBERT D. STALKER,
Appellant No. 1562 EDA 2014
Appeal from the Judgment of Sentence of April 21, 2014
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0008251-2013
BEFORE: DONOHUE, OLSON AND MUSMANNO, JJ.
MEMORANDUM BY OLSON, J.: FILED APRIL 01, 2015
Appellant, Robert D. Stalker, appeals from the judgment of sentence
entered on April 21, 2014, following the trial court’s acceptance of his nolo
contendere plea to resisting arrest.1 On appeal, counsel filed an application
to withdraw from representation pursuant to Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981) and its federal precursor, Anders v.
California, 386 U.S. 738 (1967), as well as an Anders brief on Appellant’s
behalf. Upon careful consideration, we grant counsel leave to withdraw and
affirm Appellant’s conviction.
We briefly summarize the facts of this case, as gleaned from the
certified record, as follows. On November 15, 2013, for safety reasons,
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1
18 Pa.C.S.A. § 5104.
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police asked Appellant several times to leave the area of a construction site
at the Darby Fire Company #1 located at Quarry Street in Delaware County,
Pennsylvania. At one point, Appellant reached inside his jacket and a police
struggle ensued. Appellant initially wrestled with a police officer and then
became rigid and would not allow the officer to place him in restraints.
Police transported him to the police station and once Appellant’s wrist
restraints were removed, he struck the arresting officer again. Once
subdued, Appellant appeared to have a seizure and medics restrained
Appellant and removed him from the police station on a stretcher. At
Fitzgerald Mercy Hospital, Appellant yelled, cursed, spat, and fought against
his restraints.
Accordingly, the Commonwealth charged Appellant with various crimes
including, inter alia, defiant trespass, criminal trespass, aggravated assault,
simple assault, disorderly conduct, and resisting arrest. On April 21, 2014,
as per a plea agreement with the Commonwealth, Appellant pled nolo
contendere to resisting arrest and the remaining charges were dismissed.
On that same day, the trial court imposed the negotiated sentence of time
served to 23 months of imprisonment. This timely appeal resulted.2
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2
Appellant filed a timely notice of appeal on May 19, 2014. The trial court
ordered Appellant to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). In accordance with Pa.R.A.P.
1925(c)(4), counsel for Appellant filed a statement that he intended to file
an Anders brief with this Court.
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On appeal, counsel filed an Anders brief in this Court and an
accompanying application to withdraw as counsel. The Anders brief
presents one potential issue for our review:
Whether Appellant’s sentence should be vacated because
the [t]rial [c]ourt failed to inform Appellant of the legal
standard to be invoked if Appellant chose to withdraw his
plea?
Appellant’s Brief at 2.
“Initially, we note that we may not address the merits of the issue
raised on appeal without first reviewing the request to withdraw.”
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc). Counsel must: 1) petition the court for leave to withdraw stating
that, after making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy of the brief
to the defendant; and 3) advise the defendant that he or she has the right
to retain private counsel or raise additional arguments that the defendant
deems worthy of the court's attention. Id. (citation omitted).
Herein, counsel's petition to withdraw from representation states that
he reviewed the record and concluded that the appeal is frivolous.
Additionally, counsel notified Appellant that he was seeking permission to
withdraw and furnished Appellant with copies of the petition to withdraw and
Anders brief, and advised Appellant of his right to retain new counsel or
proceed pro se to raise any points he believes worthy of this Court's
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attention.3 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. 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.
Id. 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. (citation omitted). Counsel has complied with these
directives. We now turn to the issue presented on appeal.
“Appellant contends that the failure to inform [him] of the standard
that would apply to a petition to withdraw the plea is tantamount to failure
to determine whether he understood and voluntarily accepted the terms of
the plea.” Appellant’s Brief at 6, citing Pa.R.Crim.P. 590(B)(2).
On this issue, we have recently determined:
To be valid, a guilty plea must be knowingly, voluntarily and
intelligently entered. A manifest injustice occurs when a
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3
Appellant has not responded to counsel’s petition to withdraw.
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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 Rule 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.
Nevertheless, [k]nowledge of the procedural aspects of the
right to withdraw the plea does not bear upon whether it
was voluntary in the first instance. If the colloquy properly
informs the defendant of the rights he is waiving by virtue
of the plea, and the defendant knows his sentence, the
guilty plea is not involuntary or unknowing simply because
the court failed to inform the defendant beforehand of the
standard that would apply to a petition to withdraw the
plea. In other words, the integrity of a defendant's plea
remains intact even if the court failed to inform the
defendant of how, when, or under what circumstances the
plea could be withdrawn.
Commonwealth v. Prendes, 97 A.3d 337, 352-353 (Pa. Super. 2014),
appeal denied, 105 A.3d 736 (Pa. 2014) (internal citations and quotations
omitted).
Upon review of the record and the totality of circumstances, we
conclude the trial court confirmed the Rule 590 prerequisites prior to
accepting Appellant’s plea. Hence, Appellant’s plea was tendered knowingly,
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intelligently, voluntarily, and understandingly. Under Prendes, the plea
remains intact regardless of whether the trial court informed Appellant
beforehand of the standard that would apply to a petition to withdraw the
plea. Accordingly, we conclude Appellant’s issue is frivolous.
Further, after an independent review of the entire record, we see
nothing that might arguably support this appeal. See Commonwealth v.
Vilsaint, 893 A.2d 753, 758 n.6 (Pa. Super. 2006) (“The filing of the
Anders brief triggers the duty of our Court to conduct an independent
review of the entire record to make sure counsel has fully represented his
client's interest.”). The appeal is, therefore, wholly frivolous. Accordingly,
we affirm Appellant’s judgment of sentence and grant counsel’s petition for
leave to withdraw appearance.
Petition for leave to withdraw as counsel granted. Judgment of
sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/1/2015
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