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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
MICHAEL TAYLOR, : No. 573 EDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, January 14, 2014,
in the Court of Common Pleas of Delaware County
Criminal Division at No. CP-23-CR-0004788-2013
BEFORE: FORD ELLIOTT, P.J.E. DONOHUE AND LAZARUS, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 17, 2015
This is an appeal from the judgment of sentence entered in the Court
of Common Pleas of Delaware County following appellant’s conviction for
possession of a controlled substance with intent to deliver. Appointed
counsel, Patrick J. Connors, Esq., has filed a petition to withdraw, alleging
that the appeal is wholly frivolous, accompanied by an Anders brief.1 We
grant counsel’s withdrawal petition and affirm the judgment of sentence.
On June 20, 2013, appellant was apprehended by parole agents for
violation of parole. A search of his person uncovered a Ziploc bag containing
10 bundles of heroin. The agents turned appellant over to Chester police
officers. Appellant was subsequently charged with possession of a controlled
1
See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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substance, possession of a controlled substance with intent to deliver, and
possession of drug paraphernalia.2
On January 14, 2014, pursuant to a negotiated guilty plea agreement,
appellant pleaded guilty to possession of a controlled substance with intent
to deliver. In exchange, the Commonwealth recommended a sentence of
12 to 24 months’ imprisonment followed by 2 years’ probation and dismissed
the remaining charges. Immediately following the plea, the court imposed
the recommended sentence. A timely notice of appeal was filed on
February 12, 2014. In response to the trial court’s order to file a statement
of errors complained of on appeal, appellant’s counsel filed a statement of
intent to file an Anders brief under Pa.R.A.P. 1925(c)(4).3 Consequently,
the trial court declined to issue a Pa.R.A.P. 1925(a) opinion and had the
record certified for transmittal to this court.
2
35 P.S. § 780-113(a)(16), (a)(30), and (a)(32), respectively.
3
Rule 1925(c)(4) provides:
In a criminal case, counsel may file of record and
serve on the judge a statement of intent to file an
[Anders] brief in lieu of filing a Statement. If, upon
review of the [Anders] brief, the appellate court
believes that there are arguably meritorious issues
for review, those issues will not be waived; instead,
the appellate court may remand for the filing of a
Statement, a supplemental opinion pursuant to
Rule 1925(a), or both. Upon remand, the trial court
may, but is not required to, replace appellant’s
counsel.
Pa.R.A.P. 1925(c)(4).
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On April 24, 2014, appellant’s counsel filed in this court a motion to
withdraw as counsel and an Anders brief, wherein counsel states there are
no non-frivolous issues preserved for our review. “When presented with an
Anders brief, this Court may not review the merits of the underlying issues
without first examining counsel’s petition to withdraw.” Commonwealth v.
Daniels, 999 A.2d 590, 593 (Pa.Super. 2010), citing Commonwealth v.
Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007) (en banc) (citation
omitted).
In order for counsel to withdraw from an appeal
pursuant to Anders, certain requirements must be
met, and 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.
Id., quoting Santiago, 978 A.2d at 361.
Our review of Attorney Connors’s application to withdraw, supporting
documentation, and Anders brief reveals that he has complied with all of
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the foregoing requirements. We note that counsel also furnished a copy of
the brief to appellant, advised him of his right to retain new counsel,
proceed pro se, or raise any additional points that he deems worthy of this
court’s attention, and attached to the Anders petition a copy of the letter
sent to appellant as required under Commonwealth v. Millisock, 873 A.2d
748, 751 (Pa.Super. 2005). See Daniels, 999 A.2d at 594 (“While the
Supreme Court in Santiago set forth the new requirements for an Anders
brief, which are quoted above, the holding did not abrogate the notice
requirements set forth in Millisock that remain binding legal precedent.”).
As Attorney Connors has complied with all of the requirements set forth
above, we conclude that counsel has satisfied the procedural requirements
of Anders.
Once counsel has met his obligations, “it then becomes the
responsibility of the reviewing court to make a full examination of the
proceedings and make an independent judgment to decide whether the
appeal is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5. Thus,
we now turn to the merits of appellant’s appeal.
The sole issue put forward by counsel as having possible merit
contends that the sentence imposed was excessive, which raises the
discretionary aspects of appellant’s sentence. “It is firmly established that a
plea of guilty generally amounts to a waiver of all defects and defenses
except those concerning the jurisdiction of the court, the legality of
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sentence, and the validity of the guilty plea.” Commonwealth v.
Dalberto, 648 A.2d 16, 18 (Pa.Super. 1994), appeal denied, 655 A.2d 983
(Pa. 1995), cert. denied, Dalberto v. Pennsylvania, 516 U.S. 818
(1995). The Dalberto court went on to hold that the discretionary aspects
of sentence could be contested following a guilty plea only where the plea
was open and the terms of the sentence were not negotiated. Id. at 18-22.
Traditionally, a negotiated plea refers to one where the terms of the
sentence are set by the parties and if the agreement is accepted by the
court, that sentence must be imposed. Instantly, the plea agreement
provided for a recommended sentence. Under these circumstances, if the
court accepts the plea agreement it may or may not impose the
recommended sentence, but if the court rejects the recommended sentence
it must afford the defendant an opportunity to withdraw the plea, so long as
the plea did not prohibit withdrawal. Commonwealth v. Pardo, 35 A.3d
1222, 1228 (Pa.Super. 2011), appeal denied, 50 A.3d 125 (Pa. 2012).4 In
4
[W]hen a written plea agreement includes specific
language that the defendant knowingly waives his
right to withdraw his plea if the trial judge shall not
concur in the recommended sentence, the defendant
is not entitled to withdraw his plea; but if a plea
agreement is silent on whether the defendant may
withdraw the plea in the event that the trial court
does not concur in the recommended sentence, the
defendant shall be entitled to withdraw his plea, as is
the current practice under Rule 319.
Pardo, 35 A.3d at 1228, quoting Commonwealth v. Porreca, 595 A.2d
23, 26 (1991).
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its analysis, the Dalberto court cited with approval Commonwealth v.
Coles, 530 A.2d 453 (Pa.Super. 1987), appeal denied, 559 A.2d 34 (Pa.
1989).
In Coles, appellant and the Commonwealth entered a plea agreement
calling for a recommended sentence. Initially, the trial court imposed the
recommended sentence, but upon a motion to reconsider by appellant, the
trial court reduced the sentence. On appeal by the Commonwealth, the
Coles court held that a plea containing a recommended sentence is a
bargain for a specific sentence and that to allow its modification deprives the
Commonwealth of the benefit of its bargain, turning the negotiating process
into a sham. Coles, 530 A.2d at 456-458. Consequently, the Coles court
vacated the order modifying the original sentence.
In citing Coles, the Dalberto court indicated that an accepted
recommended sentence was tantamount to a negotiated sentence for
purposes of not being permitted to raise the discretionary aspects of
sentence following a guilty plea. Thus, appellant cannot now raise the
discretionary aspects of his sentence because the sentencing
recommendation he bargained for was accepted by the guilty plea court.
This issue is wholly without merit.
We find this appeal to be wholly frivolous, and our independent review
of the entire record has not disclosed any other potentially non-frivolous
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issues. Consequently, we grant counsel’s petition to withdraw, and we
affirm the judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/17/2015
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