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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JAMES MICHAEL DEHNER :
:
Appellant :
No. 1282 WDA 2016
Appeal from the Judgment of Sentence July 6, 2016
In the Court of Common Pleas of Clarion County
Criminal Division at No(s): CP-16-CR-0000128-2016
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and SOLANO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED FEBRUARY 22, 2017
Appellant, James Michael Dehner, appeals from the judgment of
sentence entered in the Clarion County Court of Common Pleas, following his
negotiated guilty plea to open lewdness.1 We affirm.
The relevant facts and procedural history of this case are as follows.
On March 10, 2016, the Commonwealth charged Appellant with three counts
of open lewdness and one count each of dissemination of sexual materials to
a minor and corruption of minors. The charges stemmed from several
incidents where Appellant watched pornography and masturbated in front of
twelve-year-old Victim. On July 6, 2016, Appellant entered a negotiated
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1
18 Pa.C.S.A. § 5901.
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guilty plea to one count of open lewdness, in exchange for the
Commonwealth’s recommendation that the court impose a sentence in the
standard range of the sentencing guidelines and dismiss the remaining
charges against Appellant. Immediately after acceptance of the plea, the
court sentenced Appellant in accordance with the plea agreement to a term
of six (6) to twelve (12) months’ imprisonment. The court imposed the
sentence consecutive to an unrelated sentence Appellant was serving at the
time.
On July 26, 2016, Appellant filed a motion to file a post-sentence
motion nunc pro tunc. The court granted Appellant’s motion to file the nunc
pro tunc post-sentence motion that same day. The court ultimately denied
Appellant’s nunc pro tunc post-sentence motion, which asked the court to
impose Appellant’s sentence concurrent to his unrelated sentence and make
Appellant work-release eligible. Appellant timely filed a notice of appeal on
August 15, 2016. On August 18, 2016, the court ordered Appellant to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). Appellant’s counsel filed a statement of intent to file an Anders
brief pursuant to Pa.R.A.P. 1925(c)(4) on August 26, 2016. On November
23, 2016, counsel filed a petition for leave to withdraw as counsel in this
Court.
As a preliminary matter, counsel seeks to withdraw his representation
pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d
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493 (1967) and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349
(2009). Anders and Santiago require counsel to: (1) petition the Court for
leave to withdraw, certifying that after a thorough review of the record,
counsel has concluded the issues to be raised are wholly frivolous; (2) file a
brief referring to anything in the record that might arguably support the
appeal; and (3) furnish a copy of the brief to the appellant and advise him of
his right to obtain new counsel or file a pro se brief to raise any additional
points the appellant deems worthy of review. Santiago, supra at 173-79,
978 A.2d at 358-61. Substantial compliance with these requirements is
sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.
2007). After establishing that counsel has met the antecedent requirements
to withdraw, this Court makes an independent review of the record to
confirm that the appeal is wholly frivolous. Commonwealth v. Palm, 903
A.2d 1244, 1246 (Pa.Super. 2006).
In Santiago, supra, our Supreme Court addressed the briefing
requirements where court-appointed appellate counsel seeks to withdraw
representation:
Neither Anders nor McClendon[2] requires that counsel’s
brief provide an argument of any sort, let alone the type of
argument that counsel develops in a merits brief. To
repeat, what the brief must provide under Anders are
references to anything in the record that might arguably
support the appeal.
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2
Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).
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* * *
Under Anders, the right to counsel is vindicated by
counsel’s examination and assessment of the record and
counsel’s references to anything in the record that
arguably supports the appeal.
Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:
[I]n 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. 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 178-79, 978 A.2d at 361.
Instantly, Appellant’s counsel filed a petition to withdraw. The petition
states counsel conducted a conscientious review of the record and
determined the appeal is wholly frivolous. Counsel also supplied Appellant
with a copy of the brief and a letter explaining Appellant’s right to retain new
counsel or to proceed pro se to raise any additional issues Appellant deems
worthy of this Court’s attention. (See Letter to Appellant, dated November
14, 2016, attached to Petition for Leave to Withdraw as Counsel). In the
Anders brief, counsel provides a summary of the facts and procedural
history of the case. Counsel’s argument refers to relevant law that might
arguably support Appellant’s issues. Counsel further states the reasons for
his conclusion that the appeal is wholly frivolous. Therefore, counsel has
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substantially complied with the requirements of Anders and Santiago.
Counsel raises the following issue on Appellant’s behalf:
ARE THERE ANY ISSUES THAT APPELLANT CAN RAISE,
THAT MIGHT ARGUABLY SUPPORT AN APPEAL OF HIS
SENTENCE FOLLOWING A VOLUNTARY GUILTY PLEA?
A. WAS ANY ERROR COMMITTED IN THE
COMMONWEALTH’S FAILURE TO MIRANDIZE []
APPELLANT?
B. WAS ANY ERROR COMMITTED IN HOLDING
APPELLANT’S PRELIMINARY HEARING AFTER 14
DAYS OF HIS PRELIMINARY ARRAIGNMENT?
(Anders Brief at 4).
In the Anders brief, counsel argues Appellant waived any challenge to
the alleged Miranda3 violation or the delay between his preliminary
arraignment and preliminary hearing due to Appellant’s knowing and
voluntary guilty plea. Counsel concludes Appellant cannot raise these claims
on appeal. We agree.
The principles surrounding Miranda warnings are well settled:
The prosecution may not use statements stemming from a
custodial interrogation of a defendant unless it
demonstrates that he was apprised of his right against
self-incrimination and his right to counsel. Thus, Miranda
warnings are necessary any time a defendant is subject to
a custodial interrogation. …[T]he Miranda safeguards
come into play whenever a person in custody is subjected
to either express questioning or its functional equivalent.
Moreover, in evaluating whether Miranda warnings were
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3
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d. 694.
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necessary, a court must consider the totality of the
circumstances.
In conducting the inquiry, [a court] must also keep in mind
that not every statement made by an individual during a
police encounter amounts to an interrogation. Volunteered
or spontaneous utterances by an individual are admissible
even without Miranda warnings.
Commonwealth v. Gaul, 590 Pa. 175, 180, 912 A.2d 252, 255 (2006),
cert. denied, 552 U.S. 939, 128 S.Ct. 43, 169 L.Ed.2d 242 (2007) (internal
citations and quotations marks omitted).
Pennsylvania Rule of Criminal Procedure 540 explains the time
requirements for scheduling a preliminary hearing as follows:
Rule 540. Preliminary Arraignment
* * *
(G) Unless the preliminary hearing is waived by a
defendant who is represented by counsel, or the attorney
for the Commonwealth is presenting the case to an
indicting grand jury pursuant to Rule 556.2, the issuing
authority shall:
(1) fix a day and hour for a preliminary hearing
which shall not be later than 14 days after the
preliminary arraignment if the defendant is in
custody and no later than 21 days if not in custody
unless:
(a) extended for cause shown; or
(b) the issuing authority fixes an earlier date
upon the request of the defendant or defense
counsel with the consent of the complainant
and the attorney for the Commonwealth…
Pa.R.Crim.P. 540(G)(1). Violation of Rule 540(G)(1) does not require
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automatic discharge of an accused if his preliminary hearing is not scheduled
within the requisite amount of time. Commonwealth v. DeCosey, 371
A.2d 905, 907 (Pa.Super. 1977). Significantly, “courts have regularly
refused to dismiss prosecutions and discharge defendants based on technical
violations of the criminal procedural rules in the absence of a demonstration
of prejudice.” Commonwealth v. Bowman, 840 A.2d 311, 317 (Pa.Super.
2003).
Significantly, “[a] plea of guilty effectively waives all nonjurisdictional
defects and defenses.” Commonwealth v. Gibson, 561 A.2d 1240, 1242
(Pa.Super. 1989), appeal denied, 525 Pa. 642, 581 A.2d 568 (1990). “When
a defendant pleads guilty, he waives the right to challenge anything but the
legality of his sentence and the validity of his plea.” Commonwealth v.
Jones, 593 Pa. 295, 308, 929 A.2d 205, 212 (2007). Here, Appellant
challenges the Commonwealth’s alleged failure to inform Appellant of his
Miranda rights plus he complains about the delay between his preliminary
arraignment and preliminary hearing. Nevertheless, Appellant does not
claim his guilty plea was coerced by the alleged Miranda violation or the
delay prior to his preliminary hearing. Further, nothing in the record
suggests the police obtained a confession from Appellant or conducted an
interview of Appellant at any time during the case. Additionally, Appellant
fails to argue any prejudice resulted from the delay between his preliminary
arraignment and preliminary hearing. Therefore, Appellant’s claims are
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waived for purposes of our review. See id. Following our independent
review of the record, we conclude the appeal is frivolous. See Palm, supra.
Accordingly, we affirm the judgment of sentence and grant counsel’s petition
to withdraw.
Judgment of sentence affirmed; counsel’s petition to withdraw is
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2017
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