J-S69034-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARK ADAM HENDERSON,
Appellant No. 507 MDA 2016
Appeal from the Judgment of Sentence February 19, 2016
in the Court of Common Pleas of Huntingdon County
Criminal Division at Nos.: CP-31-CR-0000405-2015
CP-31-CR-0000407-2015
CP-31-CR-0000511-2015
CP-31-CR-0000535-2015
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARK ADAM HENDERSON,
Appellant No. 508 MDA 2016
Appeal from the Judgment of Sentence February 19, 2016
in the Court of Common Pleas of Huntingdon County
Criminal Division at Nos.: CP-31-CR-0000405-2015
CP-31-CR-0000407-2015
CP-31-CR-0000511-2015
CP-31-CR-0000535-2015
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
J-S69034-16
MARK ADAM HENDERSON,
Appellant No. 509 MDA 2016
Appeal from the Judgment of Sentence February 19, 2016
in the Court of Common Pleas of Huntingdon County
Criminal Division at Nos.: CP-31-CR-0000405-2015
CP-31-CR-0000407-2015
CP-31-CR-0000511-2015
CP-31-CR-0000535-2015
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARK ADAM HENDERSON,
Appellant No. 510 MDA 2016
Appeal from the Judgment of Sentence February 19, 2016
in the Court of Common Pleas of Huntingdon County
Criminal Division at Nos.: CP-31-CR-0000405-2015
CP-31-CR-0000407-2015
CP-31-CR-0000511-2015
CP-31-CR-0000535-2015
BEFORE: STABILE, J., DUBOW, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED OCTOBER 21, 2016
In these consolidated appeals, Appellant, Mark Adam Henderson,
appeals pro se from the judgment of sentence imposed following his entry of
a counseled, negotiated nolo contendere plea, inter alia, to eight charges
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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involving driving under the influence with a suspended license. Counsel has
filed a petition to withdraw from representation on the basis of frivolity, and
a supporting brief pursuant to Anders v. California and Commonwealth
v. Santiago.1 Appellant filed both a reply to the petition to withdraw and a
separate pro se brief. Appellant has also filed four pro se motions (and one
pro se petition). We deny all of Appellant’s pro se motions. We grant
counsel’s petition to withdraw, and we affirm Appellant’s judgment of
sentence.
On February 19, 2016, Appellant entered counseled, negotiated nolo
pleas to four separate criminal informations (four counts of driving under the
influence, controlled substance, impaired ability, fourth and subsequent
offense; and four counts of driving while license suspended).2 As part of
the agreement, other pending charges were nolle prossed.3 Appellant
completed and signed a written Nolo Contendere Colloquy, co-signed by plea
____________________________________________
1
See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
2
Appellant does not appeal from two sentences of probation for forgery of
prescriptions which were also part of the global agreement.
3
The other charges included violation of 75 Pa.C.S.A. § 1501 (drivers
required to be licensed); § 6503.1 (habitual offenders), and other acts
involving impaired driving. Appellant was apparently also charged with theft
of a cellphone, trespass and attempting to elude police by hiding in a crawl
space and crawling into the attic of an adjoining property when the officers
came to serve an arrest warrant on him.
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counsel. After a thorough on-the-record colloquy, the court accepted
Appellant’s plea. (See N.T. Plea and Sentencing, 2/19/16, at 2-8).
On the same day, the court imposed the negotiated aggregate
sentence of not less than eighty-four months’ and not more than one
hundred-sixty-eight months’ incarceration in a state correctional institution.
(See id. at 8-10).4 The sentencing court also found Appellant to be RRRI
eligible for a minimum sentence of seventy months’ incarceration. (See
id.).
On March 9, 2016, Appellant filed a pro se motion to modify or reduce
sentence. Even though the post-sentence motion was untimely on its face,
the court scheduled a hearing.5 (See Order, 4/01/16). However, before the
hearing could be held, Appellant filed a pro se notice of appeal, on March 18,
2016, albeit erroneously addressed to the Pennsylvania Supreme Court.6
____________________________________________
4
As part of the global plea, the court also sentenced Appellant to two terms
of probation (five years each) for the two counts of forgery (prescriptions)
previously noted. The terms of probation were consecutive to each other
and to the term of incarceration. (See N.T. Plea and Sentencing, at 10).
The sentencing court made all other sentences concurrent to the aggregate
sentence of incarceration (seven to fourteen years). (See id. at 9-10).
5
A defendant must file a post-sentence motion within ten days of imposition
of sentence. Pa.R.Crim.P. 720(A)(1); see also Commonwealth v.
Capaldi, 112 A.3d 1242, 1244 (Pa. Super. 2015); Commonwealth v.
Dreves, 839 A.2d 1122, 1128 (Pa. Super. 2003).
6
This Court consolidated the appeals at Nos. 507, 508, 509, and 510, sua
sponte, per curiam. (See Order, 4/20/16).
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Counsel filed a court-ordered statement of errors on April 26, 2016. See
Pa.R.A.P. 1925(b). On June 23, 2016, counsel also filed a petition to
withdraw (captioned as a motion) and, in support, an Anders brief. In the
brief, after reviewing Appellant’s claims of ineffective assistance and an
excessive sentence, counsel concluded that the appeal was frivolous, and
that nothing in the record supports the appeal. (See Anders Brief, 6/23/16,
at 20).
Counsel’s third obligation under Anders [after filing a petition to
withdraw and an Anders brief] is to furnish a copy of the brief to
the appellant, advising him of his 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. This last option (i.e., to raise additional
points) means that the appellant, although still
represented by Anders counsel, may file a brief with this
Court.
Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007), appeal
denied, 936 A.2d 40 (Pa. 2007) (emphasis added) (citation omitted); see
also Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).
Here, counsel sent Appellant a letter advising him, inter alia, that he
had the right to proceed pro se on the appeal, and the right to raise any
points he deemed worthy of this Court’s consideration. (See Letter of
Counsel to Mark A. Henderson, 6/23/16).7
____________________________________________
7
It is apparent that at the time of the appeals, Appellant was still
represented by counsel. Accordingly, Appellant’s pro se notice of appeal
(Footnote Continued Next Page)
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Appellant proceeded to file with this Court a petition to proceed pro se,
on July 1, 2016; a pro se motion to withdraw the no-contest plea, on August
2, 2016; and a motion to vacate sentence, on August 5, 2016. On August
22, 2016, Appellant also filed a pro se motion for habeas corpus relief. The
motions and the petition were deferred, per curiam, to this merit panel for
disposition. (See Order, 8/04/16).
The trial court filed a 1925(a) Memorandum on May 16, 2016. See
Pa.R.A.P. 1925(a). Appellant filed a pro se brief, on July 12, 2016. On July
27, 2016, he filed a reply brief in response to counsel’s petition to withdraw
and Anders brief.
Before addressing the merits of Appellant’s claims, we must first
review counsel’s petition to withdraw. See Commonwealth v. Goodwin,
928 A.2d 287, 290 (Pa. Super. 2007) (en banc). Prior to withdrawing as
counsel on a direct appeal under Anders, counsel must file a brief that
meets the requirements established by our Supreme Court in Santiago,
supra.
The brief must: (1) provide a summary of the procedural history and
facts, with citations to the record; (2) refer to anything in the record that
_______________________
(Footnote Continued)
appears to be an example of hybrid representation. However, in view of
counsel’s subsequent filing of a Rule 1925(b) statement of errors on behalf
of Appellant, the trial court’s acceptance of it, and this Court’s sua sponte
consolidation of Appellants appeals, as well as counsel’s proper advice that
Appellant could appeal pro se, we give Appellant the benefit of the doubt and
proceed to review his subsequent appeal.
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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, or statutes on point that have
led to the conclusion that the appeal is frivolous. See Santiago, supra at
361.
Counsel must also provide Appellant with a copy of the Anders brief,
together with a letter that advises the appellant of his or her right to
proceed pro se, as already noted.
Substantial compliance with these requirements is sufficient. See
Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007).
“After establishing that the antecedent requirements have been met, this
Court must then make an independent evaluation of the record to determine
whether the appeal is, in fact, wholly frivolous.” Commonwealth v. Palm,
903 A.2d 1244, 1246 (Pa. Super. 2006) (citation omitted).
Here, counsel filed a petition to withdraw from further representation,
along with the Anders brief that concluded Appellant’s appeal is frivolous.
The petition further explains that counsel notified Appellant of the
withdrawal request and sent Appellant a letter explaining his right to proceed
pro se or with new, privately-retained counsel to raise any additional points
or arguments that Appellant believed had merit. In the Anders brief,
counsel provides a summary of the facts and procedural history of the case
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with citations to the record, refers to evidence of record that might arguably
support the issue raised on appeal, provides citations to relevant case law,
and states his conclusion that the appeal is wholly frivolous and the reasons
for the conclusion. Accordingly, we conclude that counsel has substantially
complied with the requirements of Anders and Santiago.
Because counsel’s petition and brief satisfy the requirements of
Anders and Santiago, we will undertake our own review of the appeal to
determine if it is wholly frivolous. See Palm, supra at 1246; see also
Commonwealth v. O'Malley, 957 A.2d 1265, 1266-67 (Pa. Super. 2008).
The Anders brief raises two questions for our review:8
1. Whether [Appellant] can raise claims of ineffective
assistance of counsel in a direct appeal to this Court?
2. Whether [Appellant] can challenge the discretionary
aspect of his sentence where, as here, the plea agreement
included a negotiated sentence which the [t]rial [c]ourt [ ]
accepted and imposed?
(Anders Brief, at 8).
Preliminarily, we note that:
It is well established that a plea of nolo contendere is treated as
a guilty plea in terms of its effect upon a given case.
Commonwealth v. Leidig, 850 A.2d 743, 745 (Pa. Super.
2004) (“in terms of its effect upon a case, a plea of nolo
contendere is treated the same as a guilty plea”). We are aware
that by entering a nolo contendere plea, a defendant does not
admit that he is guilty. Commonwealth v. Lewis, 791 A.2d
____________________________________________
8
The Commonwealth did not file a brief in this appeal.
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1227 (Pa. Super. 2002); see also Commonwealth v. Moser,
999 A.2d 602 (Pa. Super. 2010). “As the United States Supreme
Court has held, a plea of nolo contendere is ‘a plea by which a
defendant does not expressly admit his guilt, but nonetheless
waives his right to a trial and authorizes the court for purposes
of sentencing to treat him as if he were guilty.’ North
Carolina v. Alford, 400 U.S. 25, 36, 91 S. Ct. 160, 167, 27
L.Ed.2d 162, 170 (1970).” Lewis, supra at 1234 (emphasis
added). “[T]he difference between a plea of nolo contendere
and a plea of guilty is that, while the latter is a confession
binding defendant in other proceedings, the former has no effect
beyond the particular case.” Moser, supra at 606 (quoting
Commonwealth ex rel. Monaghan v. Burke, 167 Pa. Super.
417, 74 A.2d 802, 804 (1950)). Thus, for purposes of
proceedings relating to the charges, Appellant agreed to be
treated as guilty of the crimes.
Commonwealth v. V.G., 9 A.3d 222, 226–27 (Pa. Super. 2010).
Next, we observe that, as correctly noted by counsel, the trial court
properly decided that Appellant’s claims of ineffective assistance of counsel
may only be raised on collateral appeal. (See Anders Brief, at 18; Trial Ct.
Op., at 1); see also Commonwealth v. Grant, 813 A.2d 726, 739 (Pa.
2002) (holding that, with exceptions not applicable to this appeal, general
rule is that petitioner should wait to raise claims of ineffective assistance of
trial counsel until collateral review); Commonwealth v. Holmes, 79 A.3d
562, 563 (Pa. 2013) (reaffirming general rule of Grant deferring claims of
ineffective assistance of counsel to PCRA review).
Counsel also concluded correctly that the trial court properly decided
that when a plea agreement includes a negotiated sentence accepted and
imposed by the sentencing court, there is no authority to challenge the
discretionary aspects of that sentence. (See Anders Brief, at 19; Trial Ct.
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Op., at 2); see also Commonwealth v. Dalberto, 648 A.2d 16 (Pa. Super.
1994), appeal denied, 655 A.2d 983 (Pa. 1995), cert. denied, 516 U.S. 818
(1995):
[I]n a negotiated plea agreement, where a sentence of specific
duration has been made part of a plea bargain, it would clearly
make a sham of the negotiated plea process for courts to allow
defendants to later challenge their sentence; this would, in
effect, give defendants a second bite at the sentencing process.
Id. at 21 (citation and internal quotation marks omitted) (emphasis added).
Accord, O'Malley, supra at 1267 (holding one who pleads guilty and
receives negotiated sentence may not then seek discretionary review of that
sentence) (citing Dalberto, at 20).
Therefore, we agree with counsel and the trial court that the questions
raised in the Anders brief are wholly frivolous. Next, we make an
independent evaluation of the record to determine whether the appeal is, in
fact, wholly frivolous. See Palm, supra at 1246; see also O’Malley,
supra at 1267. In that context, we review the additional claims raised by
Appellant himself.
In his pro se brief, Appellant raises the following questions:
1. Was a plea of nolo contendere unlawfully induced where
the Appellant is innocent of the charges? Did [c]ounsel’s
ineffectiveness prevent the plea from being voluntary, knowing,
or intelligent?
2. Did [c]ounsel fail to advocate for the Appellant in the
plea [bargaining] process and at a [minimum] should have
presented evidence of mitigation resulting in a more favorable
outcome of the plea [bargaining] process with lesser charges
and a lesser prison sentence?
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3. Is there a factual basis for the charges according to the
plain language of the [statute] and is the Appellant innocent of
the charges in which he was unlawfully induced to plea [sic] nolo
contendere?
4. Did the court and prosecution err in violating Appellant’s
eighth amendment rights protecting him from excessive bail and
cruel and unusual punishment?
5. Was the Appellant prejudiced by breech agreements
where there was no reasonable basis no [sic] to honor those
agreements?
6. Does Appellant’s sentence violate the priniciple [sic] of
proportionality, that the punishment should not exceed the
gravity of the offense and did the court err in failing to rule on
Appellant’s timely motion to modify sentence?
7. Does sufficent [sic] evidence exist of arguable merit to
support suppression of evidence which counsel failed to advise
the Appellant of?
8. Should the charges be quashed and dismissed or in lieu
of a complete or partial dismissal, Appellants [sic] plea of nolo
contendere should be withdrawn, the Appellant’s sentence
should be vacated, and be set at liberty on bail?
([Pro Se] Brief for Appellant, at 6).
As a prefatory matter, although this Court is willing to
construe liberally materials filed by a pro se litigant, pro se
status generally confers no special benefit upon an appellant.
Accordingly, a pro se litigant must comply with the procedural
rules set forth in the Pennsylvania Rules of the Court. This Court
may quash or dismiss an appeal if an appellant fails to conform
with the requirements set forth in the Pennsylvania Rules of
Appellate Procedure.
Commonwealth v. Lyons, 833 A.2d 245, 251–52 (Pa. Super. 2003),
appeal denied, 879 A.2d 782 (Pa. 2005) (citations omitted).
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First, Appellant fails to demonstrate where in the record his claims in
his motions, petition or pro se brief were raised with the trial court (other
than the challenge to the negotiated sentence, which he abandoned by filing
his purported pro se notice of appeal before the scheduled hearing). “Issues
not raised in the lower court are waived and cannot be raised for the first
time on appeal.” Pa.R.A.P. 302(a). Accordingly, they are waived.
Moreover, we remain mindful that:
The law does not require that a defendant be pleased with
the outcome of his decision to enter a plea of guilty. All that is
required is that the defendant’s decision to plead guilty be
knowingly, voluntarily and intelligently made.
Pennsylvania has constructed its guilty plea procedures in
a way designed to guarantee assurance that guilty pleas
are voluntarily and understandingly tendered. The entry of
a guilty plea is a protracted and comprehensive proceeding
wherein the court is obliged to make a specific
determination after extensive colloquy on the record that a
plea is voluntarily and understandingly tendered. A guilty
plea colloquy must include inquiry as to whether (1) the
defendant understood the nature of the charge to which he
is pleading guilty; (2) there is a factual basis for the plea;
(3) the defendant understands that he has the right to a
jury trial; (4) the defendant understands that he is
presumed innocent until he is found guilty; (5) the
defendant is aware as to the permissible range of
sentences; and (6) the defendant is aware that the judge
is not bound by the terms of any plea agreement unless he
accepts such agreement. Inquiry into these six areas is
mandatory in every guilty plea colloquy.
In order for a guilty plea to be constitutionally valid, the guilty
plea colloquy must affirmatively show that the defendant
understood what the plea connoted and its consequences. This
determination is to be made by examining the totality of the
circumstances surrounding the entry of the plea. Therefore,
[w]here the record clearly demonstrates that a guilty plea
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colloquy was conducted, during which it became evident that the
defendant understood the nature of the charges against him, the
voluntariness of the plea is established.
Commonwealth v. Myers, 642 A.2d 1103, 1105 (Pa. Super. 1994)
(citations and internal quotation marks omitted).
Here, our independent review of the record reveals that, prior to
accepting Appellant’s nolo plea, the trial court engaged Appellant in an
extensive colloquy in which he consistently affirmed that he understood all of
the rights he would be giving up by pleading nolo contendere. (See N.T.
Plea and Sentencing, at 2-8).
Nevertheless, on appeal, in addition to alleging repeatedly the
purported ineffectiveness of plea counsel, Appellant asserts that his nolo
plea was “unlawfully induced” and he is innocent.9 (Pro Se Brief, at 13).
However, he fails to develop an argument or provide pertinent facts or
controlling legal authority in support of these essentially boilerplate claims.
Instead, in a meandering, unfocussed and non-compliant brief,
Appellant employs the simple expedient of categorically denying, whenever
conceivable to him, the factual basis of the plea presented in the affidavits of
probable cause and at the hearing. (See Pro Se Brief, at 13-46). As an
alternative, he attempts to re-characterize the facts of record into a self-
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9
We note that under current controlling authority, a bare assertion of
innocence is not, in and of itself, a sufficient reason to require a court to
grant a request to withdraw a guilty plea. See Commonwealth v.
Carrasquillo, 115 A.3d 1284, 1292 (Pa. 2015).
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serving narrative that he appears to believe is exculpatory. His reliance is
misplaced.
Appellant’s challenge to the nolo contendere plea was made after
sentencing, and the standard for withdrawing a plea is manifest
injustice. A plea rises to the level of manifest injustice when it
was entered into involuntarily, unknowingly, or unintelligently.
Therefore, Appellant’s claims will be reviewed under the manifest
injustice standard.
Commonwealth v. Stork, 737 A.2d 789, 790 (Pa. Super. 1999), appeal
denied, 764 A.2d 1068 (Pa. 2000) (citations omitted).
Once a defendant has entered a plea of guilty, it is
presumed that he was aware of what he was doing, and the
burden of proving involuntariness is upon him. Therefore, where
the record clearly demonstrates that a guilty plea colloquy was
conducted, during which it became evident that the defendant
understood the nature of the charges against him, the
voluntariness of the plea is established. 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.
Id. at 790–91 (1999) (citations, quotation marks and other punctuation
omitted) (emphasis added).
For all these reasons, there is no merit to the issues Appellant raises
pro se. He has not met his burden of proving that his nolo plea was
involuntarily entered. He has failed to demonstrate the manifest injustice
necessary to permit him to withdraw the plea after sentence was imposed.
The written and oral plea colloquies in this case affirmatively establish
that Appellant, a habitual offender with a long record of similar violations,
knowingly, intelligently and voluntarily agreed to plead nolo, after
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negotiating a favorable plea bargain with a fixed sentence, with RRRI
eligibility, and the nolle prossing of numerous related charges. The totality
of the circumstances contained in the record confirms that he had a full
understanding of the consequences of his decision and of the rights he would
be giving up by pleading.
Appellant will not now be permitted to withdraw his plea by making a
bald assertion that he was innocent of the charges to which he pleaded nolo
contendere. See Carrasquillo, supra at 1292. An Appellant’s post-
sentence denial of guilt, particularly when the nolo plea does not include an
admission of guilt in the first place, does not rise to the level of prejudice on
the order of manifest injustice sufficient to require that he be permitted to
withdraw his plea. See Myers, supra, at 1108 (citing Commonwealth v.
Jackson, 479 A.2d 5, 6 (Pa. Super. 1984)).
Appellant’s claims of ineffective assistance of counsel are denied
without prejudice to Appellant’s proper presentation of them in a timely filed,
procedurally compliant PCRA petition.
We conclude that all of Appellant’s remaining pro se claims lack any
support in fact or law. Similarly, Appellant’s pro se motion for habeas
corpus relief, relying on Birchfield v. N.D., 136 S. Ct. 2160 (2016), is
distinguishable on the facts and the law as well as its procedural posture.
Accordingly, they are all wholly frivolous. On independent review, we find
no non-frivolous claims.
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Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/21/2016
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