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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
SHAWN EMMENS
Appellant No. 1120 EDA 2015
Appeal from the Judgment of Sentence March 9, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0003999-2014
BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED NOVEMBER 13, 2015
Shawn Emmens appeals the judgment of sentence entered March 9,
2015, in the Delaware County Court of Common Pleas. The trial court
imposed a sentence of time served to 23 months’ imprisonment, after
Emmens entered a plea of nolo contendere to one count of possession with
intent to deliver marijuana.1 Contemporaneous with this appeal, Emmens’
counsel has filed a petition to withdraw from representation and an Anders
brief. See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981). The Anders brief identifies one
issue for our review, that is, whether Emmens’ plea of nolo contendere was
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1
35 P.S. 780-113(a)(30).
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entered knowingly and voluntarily. For the reasons that follow, we affirm
the judgment of sentence and grant counsel’s petition to withdraw.
The facts underlying Emmens’ arrest are gleaned from the probable
cause affidavit attached to Emmens’ criminal complaint. See Criminal
Complaint, 5/13/2013, Probable Cause Affidavit, at 1. On May 10, 2013,
members of both the Chester Police Department Narcotic/Vice Intelligence
Unit and the Unifomed Narcotic Strike Force Team were conducting
surveillance in the area of West 10th Street and Pine Lane in Chester,
Pennsylvania. At approximately 3:41 p.m., Officer C. Butcher observed a
black female approach a black male, later identified as Emmens, who was
loitering in front of a store on Keystone Road. The officer observed the two
engage in a short conversation, and then walk towards an alley at the rear
of the 900 block of Clover Lane. Emmens walked into the alley, and out of
Officer Butcher’s view, while the female remained on the street. Emmens
returned shortly thereafter, and handed the female several small, dark
colored items. In exchange, the female handed Emmens paper currency.
Officer Butcher then radioed for assistance to stop the female, who was
leaving the area.
Captain Joseph Massi stopped the female based on the description
provided by Officer Butcher. During an ensuing pat down search, Captain
Massi recovered five clear plastic baggies each containing what was later
determined to be marijuana. Another officer stopped Emmens and
performed a pat down search, which uncovered $340.00 in cash.
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Emmens was subsequently charged with possession with intent to
deliver marijuana, possession of marijuana,2 and possession of drug
paraphernalia.3 On March 9, 2015, he entered a negotiated plea of nolo
contendere to one count of possession with intent to deliver marijuana, in
exchange for which the Commonwealth dismissed the remaining charges,
and recommended a sentence of time served to 23 months’ incarceration.4
After accepting the plea, the trial court imposed the recommended sentence.
This timely appeal followed.5
When counsel files a petition to withdraw and accompanying Anders
brief, we must first examine the request to withdraw before addressing any
of the substantive issues raised on appeal. Commonwealth v. Goodwin,
928 A.2d 287, 290 (Pa. Super. 2007) (en banc). Here, our review of the
record reveals counsel has complied with the requirements for withdrawal
outlined in Anders, supra, and its progeny. Specifically, counsel filed a
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2
35 P.S. § 780-113(a)(16).
3
35 P.S. § 780-113(a)(32).
4
The Commonwealth explained at the plea hearing that Emmens was to
receive credit for his time served from January 29, 2015 to March 9, 2015.
N.T., 3/9/2015, at 3.
5
On April 14, 2015, the trial court ordered Emmens to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
On May 1, 2015, counsel complied with the court’s directive by serving the
trial court with a statement of his intent to file an Anders brief pursuant to
Pa.R.A.P. 1925(c)(4).
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petition for leave to withdraw, in which he states his belief that the appeal is
frivolous, filed an Anders brief pursuant to the dictates of Commonwealth
v. Santiago, 978 A.2d 349, 361 (Pa. 2009), furnished a copy of the Anders
brief to Emmens and advised Emmens of his right to retain new counsel or
proceed pro se. Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.
Super. 2013) (en banc). Moreover, our review of the record reveals no
additional correspondence from Emmens. Accordingly, we will proceed to
examine the record and make an independent determination of whether the
appeal is wholly frivolous.
The sole issue identified in counsel’s Anders brief is a challenge to the
voluntariness of Emmens’ nolo contendere plea based on an abbreviated oral
plea colloquy.6 Anders’ Brief at 3.
Preliminarily, we note that:
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).
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“[I]n terms of its effect upon a case, a plea of nolo contendere is treated
the same as a guilty plea.” Commonwealth v. Lewis, 791 A.2d 1227,
1230 (Pa. Super. 2002) (citation omitted), appeal denied, 806 A.2d 859 (Pa.
2002).
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Commonwealth v. Lincoln, 72 A.3d 606, 609-610 (Pa. Super. 2013),
appeal denied, 87 A.3d 319 (Pa. 2014). Here, Emmens neither objected to
the plea colloquy during the hearing, nor filed a post-sentence motion to
withdraw his plea. Therefore, his challenge is now waived.
Moreover, even if we were to find that Emmens’ claim is preserved for
our review, we would conclude he is entitled to no relief. As counsel aptly
notes, the oral colloquy conducted by the trial court in this case was “sparse
to say the least[.]” Anders Brief at 3. Nevertheless, Emmens completed a
detailed written colloquy prior to the hearing, which was referred to during
the plea hearing and is included in the certified record. 7 “[A] written plea
colloquy that is read, completed and signed by the defendant and made part
of the record may serve as the defendant's plea colloquy when
supplemented by an oral, on-the-record examination.” Commonwealth v.
Reid, 117 A.3d 777, 782 (Pa. Super. 2015).
This Court has explained:
“[A] plea of guilty will not be deemed invalid if the circumstances
surrounding the entry of the plea disclose that the defendant had
a full understanding of the nature and consequences of his plea
and that he knowingly and voluntarily decided to enter the plea.”
“Our law presumes that a defendant who enters a guilty plea
was aware of what he was doing. He bears the burden of
proving otherwise.” The entry of a negotiated plea is a “strong
indicator” of the voluntariness of the plea.
Id. (internal citations omitted).
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7
See Guilty Plea Statement, 3/17/2015.
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In the present case, the “circumstances surrounding the entry of the
plea” indicate that Emmens’ decision to plead nolo contendere was
voluntary. Id. Emmens’ attorney stipulated to the facts in the affidavit of
probable cause and the laboratory reports submitted by the Commonwealth.
N.T., 3/9/2015, at 4. Emmens acknowledged to the court that he had
completed a detailed written plea statement, and was given sufficient time
to review the statement with his attorney. Id. at 4-5. Further, before the
court accepted the plea, Emmens asked for a moment to speak with his
attorney, and was given the opportunity to do so. Id. at 6. Finally, we note
that the negotiated agreement was very favorable to Emmens, as he was
sentenced in the mitigated range of the guidelines to time served. See
Guideline Sentence Form, 3/9/2015.
Because we agree with counsel’s assessment that Emmens’ appeal is
frivolous, we affirm the judgment of sentence and grant counsel’s petition to
withdraw.
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/13/2015
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