J-S32026-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LISA SWING
Appellant No. 2818 EDA 2015
Appeal from the Judgment of Sentence July 7, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0002204-2015
BEFORE: BOWES, J., MUNDY, J., and PLATT, J.*
MEMORANDUM BY MUNDY, J.: FILED JULY 06, 2016
Appellant, Lisa Swing, appeals from the July 7, 2015 aggregate
judgment of sentence of 5 to 10 years’ imprisonment, followed by 12 years’
probation, imposed following her entry of a negotiated guilty plea to robbery
with serious bodily injury inflicted, burglary, and criminal conspiracy.1
Contemporaneously with this appeal, Appellant’s counsel has filed a petition
to withdraw and an Anders2 brief, stating that the appeal is wholly frivolous.
After careful review, we affirm and grant counsel’s petition to withdraw.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 3701(a)(1)(ii), 3502(a)(1), and 903.
2
Anders v. California, 386 U.S. 738 (1967).
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The trial court has set forth the relevant factual history as follows.
On February 19, 2015[, Appellant] entered her
friend’s apartment bearing two cups of coffee. Her
friend, the Victim, turned to walk back in the
apartment and was accosted by two men,
[Appellant]’s co-conspirators. One man had a gun.
The Victim was shocked with a stun gun and
immobilized. Duct tape was applied to her eyes,
hands and legs. Her pocketbook and jewelry were
taken. A neighbor heard the commotion and called
the police. [Appellant] and her co-conspirators were
apprehended in a stolen truck and [Appellant] had
the Victim’s stolen jewelry in her jacket pocket.
Trial Court Opinion, 10/23/15, at 1.
On July 7, 2015, Appellant initialed each paragraph of, signed, and
dated a negotiated guilty plea agreement. Following an on the record
colloquy, Appellant pled guilty to the aforementioned crimes. N.T., 7/7/15,
at 7. Appellant was sentenced the same day to an aggregate term of 5 to
10 years’ imprisonment, followed by 12 years’ probation, which was the
recommended sentence in the plea agreement. On July 10, 2015, Appellant
filed a timely post sentence motion to withdraw her guilty plea stating she
“had done nothing wrong and wished to have a trial.” Motion to Withdraw
Guilty Plea, 7/10/15, at ¶ 5. On August 19, 2015, a hearing was held on
Appellant’s motion. On August 20, 2015, the trial court denied Appellant’s
motion. On September 17, 2015, Appellant filed a timely notice of appeal.3
____________________________________________
3
On September 22, 2015, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pennsylvania Rule
(Footnote Continued Next Page)
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On October 23, 2015, the trial court filed its Rule 1925(a) opinion. On
January 7, 2016, counsel filed, with this Court, a motion to withdraw.
Appellant has not filed a response to counsel’s Anders brief or motion to
withdraw.
In his Anders Brief, counsel has raised the following issue for our
review.
Whether the [trial c]ourt should have further
explored the statements made by [Appellant] during
the hearing on her motion to withdraw the guilty
plea which suggested that she was innocent of the
charges, was coerced into pleading guilty, was
confused at the time, and that her medication kept
her from entering a knowing, voluntary and
intelligent plea?
Anders Brief at 2.
“When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.
2010) (citation omitted). Additionally, an Anders brief shall comply with the
requirements set forth by our Supreme Court in Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
[W]e hold that in the Anders brief that
accompanies court-appointed counsel’s petition to
_______________________
(Footnote Continued)
of Appellate Procedure 1925(b). On October 9, 2015, counsel filed a
statement of his intent to file an Anders brief in lieu of a concise statement,
pursuant to Rule 1925(c)(4).
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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.
Id. at 361.
Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.
2005), and its progeny, counsel seeking to withdraw on direct appeal must
also meet the following obligations to his or her client.
Counsel also must provide a copy of the Anders
brief to his client. Attending the brief must be a
letter that advises the client of [her] right to: (1)
retain new counsel to pursue the appeal; (2)
proceed pro se on appeal; or (3) raise any points
that the appellant deems worthy of the court[’]s
attention in addition to the points raised by counsel
in the Anders brief.
Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (internal
quotation marks and citation omitted). “Once counsel has satisfied the
above requirements, it is then this Court’s duty to conduct its own review of
the trial court’s proceedings and render an independent judgment as to
whether the appeal is, in fact, wholly frivolous.” Commonwealth v.
Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc), quoting
Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004). Further,
“this Court must conduct an independent review of the record to discern if
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there are any additional, non-frivolous issues overlooked by counsel.”
Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015)
(footnote and citation omitted).
In this appeal, we conclude that counsel’s Anders brief complies with
the requirements of Santiago. First, counsel has provided a procedural and
factual summary of the case with references to the record. Anders Brief at
3-4. Second, counsel advances relevant portions of the record that arguably
support Appellant’s claims on appeal. Id. at 5-7. Third, counsel noted,
“[a]fter reviewing the record in this case, counsel has concluded that this
appeal is frivolous.” Id. at 8. Lastly, counsel has complied with the
requirements set forth in Millisock. See Letter from Counsel to Appellant,
dated 1/8/16. As a result, we proceed to conduct an independent review to
ascertain if the appeal is indeed wholly frivolous.
“Settled Pennsylvania law makes clear that by entering a guilty plea,
the defendant waives [her] right to challenge on direct appeal all
nonjurisdictional defects except the legality of the sentence and the validity
of the plea.” Commonwealth v. Lincoln, 72 A.3d 606, 609 (Pa. Super.
2013) (citation omitted), appeal denied, 87 A.3d 319 (Pa. 2014). “Our law
presumes that a defendant who enters a guilty plea was aware of what [s]he
was doing. [Sh]e bears the burden of proving otherwise.” Commonwealth
v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011) (citation omitted). “[A]
defendant has no absolute right to withdraw a guilty plea; rather, the
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decision to grant such a motion lies within the sound discretion of the trial
court.” Commonwealth v. Muhammad, 794 A.2d 378, 382 (Pa. Super.
2002). The standard for deciding whether to grant a motion to withdraw a
guilty plea varies based on when such a motion is filed. Our Supreme Court
has concluded that a request to withdraw a guilty plea made before
sentencing should be “liberally allowed,” and outlined the following two-part
test for a pre-sentence motion “(1) the defendant has provided a ‘fair and
just reason’ for withdrawal of his plea; and (2) the Commonwealth will not
be ‘substantially prejudiced in bringing the case to trial.’” Id. at 383,
quoting Commonwealth v. Forbes, 299 A.2d 268, 271 (Pa. 1973). On the
other hand, the standard for a post-sentence motion to withdraw a guilty
plea is much higher. To obtain such relief, a defendant must make a
“showing of prejudice on the order of manifest injustice.” Commonwealth
v. Warren, 84 A.3d 1092, 1096 (Pa. Super 2014). “A plea rises to the level
of manifest injustice when it was entered into involuntarily, unknowingly, or
unintelligently.” Lincoln, supra at 610.
Instantly, a review of the record reveals Appellant filed a timely post
sentence motion to withdraw her July 7, 2015 guilty plea on July 10, 2015.
At the hearing on her motion, the trial court asked Appellant the basis for
her request to withdraw her guilty plea. Appellant responded as follows.
For – I feel like I’m not the guilty one here, he was,
and I was – I was just scared. I didn’t know what to
do. I’m not going to take a plea that I’m not – I’m –
I’m – I’ve done everything I’m supposed to do while
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in jail. I was on the – on the – on drugs at the time
and like I just followed. I didn’t do nothing wrong. I
wasn’t the one who did any harm to anybody. And I
got letters from him like threatening me, say this,
say that, and I didn’t know what to do. And I didn’t
know what to do the day and I was scared. And this
is the truth.
N.T., 8/19/15, at 4. Appellant also made bald assertions that she was
confused the day of the plea hearing, but went on to admit the plea
agreement was explained to her and she was informed of the charges she
was pleading guilty to. Id. at 4-6. Appellant further indicated at the time of
the plea hearing she was taking prescribed medication for her mental health.
Id. at 7.
Notably, Appellant does not specifically assert that her plea was not
entered knowingly, voluntarily, and intelligently. Rather, she testified she
was in shock, and “really didn’t want to” plead guilty, but admitted she
understood at the time of the guilty plea hearing what she was doing. Id. at
7-8. Further, a review of the plea hearing reveals the following occurred.
[The trial court]: Do you read, write and understand
the English language?
[Appellant]: Yes, I do.
[The trial court]: Were you given sufficient time and
opportunity to review a four page Guilty Plea
Statement?
[Appellant]: She explained it to me, yes.
[The trial court]: Okay. Did you read the whole
thing?
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[Appellant]: No, I didn’t read it, but she explained it
to me.
[The trial court]: Okay. Is there some reason you
didn’t read the whole thing?
[Appellant]: No, I was just – she explained it to me
step by step.
[The trial court]: Are you satisfied that she
explained everything in there to you?
[Appellant]: Yes, I did [sic].
[The trial court]: Okay. Did you understand
everything that was communicated to you about this
four page Guilty Plea Statement?
[Appellant]: Yes, I do.
[The trial court]: Okay. You realize then that you
don’t have to plead guilty. Is that correct?
[Appellant]: Yes.
[The trial court]: Okay. If you went to trial the
Commonwealth would have to prove you guilty of
these offenses beyond a reasonable doubt. That is
the heaviest burden of proof under the law. Knowing
that you still wish to give up your right to trial and
plead guilty in these matters?
[Appellant]: Yeah.
[The trial court]: Is anybody forcing you or
pressuring you into accepting this plea?
[Appellant]: No.
[The trial court]: Are you currently under the effects
of drugs, alcohol or any other substance that would
prevent you from understanding the terms of the
plea?
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[Appellant]: No.
…
[The trial court]: The Court finds the plea to be
knowing, voluntary, intelligent. ….
N.T., 7/7/15, at 5-7.
Accordingly, the record establishes that Appellant entered into the
guilty plea knowingly, voluntarily, and intelligently. Appellant negotiated a
plea with the Commonwealth, initialed every paragraph of the four page
Guilty Plea Statement, an oral plea colloquy was held on the record and
accepted by the trial court, and finally the trial court imposed the exact
sentence the Commonwealth recommended. Therefore, Appellant has failed
to demonstrate that the plea rose “to the level of manifest injustice when it
was entered into involuntarily, unknowingly, or unintelligently.” Lincoln,
supra.
Based on the foregoing, we conclude the trial court properly denied
Appellant’s motion to withdraw her guilty plea. In addition, we have
reviewed the certified record consistent with Flowers and have discovered
no additional arguably meritorious issues. Accordingly, we grant counsel’s
petition to withdraw and affirm the trial court’s July 7, 2015 judgment of
sentence.
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/6/2016
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