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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA 1 IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GERARD P. GRAHAM
Appellant No. 1561 MDA 2016
Appeal from the Judgment of Sentence August 22, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0000613-2016
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GERARD P. GRAHAM
Appellant No. 1562 MDA 2016
Appeal from the Judgment of Sentence August 22, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0003420-2016
BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED APRIL 06, 2017
Gerald P. Graham appeals from the judgment of sentence imposed
August 22, 2016, in the Berks County Court of Common Pleas. The trial
court sentenced Graham to an aggregate term of two and one-half to five
years' imprisonment, following his negotiated guilty plea, in two separate
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cases,' to charges of firearms not to be carried without a license, possession
with intent to deliver ("PWID") controlled substances, and possession of
controlled substances.2 Contemporaneous with this appeal, Graham's
counsel seeks to withdraw from representation and has filed an Anders
brief,3 which identifies two issues on appeal: (1) a request to withdraw
Graham's guilty plea, and (2) a challenge to the ineffectiveness of prior
counsel. For the reasons below, we affirm the judgment of sentence and
grant counsel's petition to withdraw.
The relevant facts underlying these appeals, as gleaned from the
affidavits of probable cause, are as follows. On January 20, 2016, Graham
was stopped for a motor vehicle violation, and subsequently found to be in
possession of a loaded firearm, synthetic marijuana, and promethazine.4
He did not have a license to carry a firearm. Graham was charged at Docket
613-2016 with firearms not to be carried without a license, possession of
controlled substances (two counts), and two summary vehicle code
1 By order dated October 11, 2016, this Court consolidated these appeals
sua sponte. See Order, 10/11/2016.
2 See 18 Pa.C.S. § 6106(a)(1), and 35 P.S. §§ 780-113(a)(30) and (a)(16),
respectively.
3 See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).
4Promethazine is a prescription drug used to treat opioid addiction. See
Docket No. 613 - 2016, Criminal Complaint, 3/8/2016, at 7-8.
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violations.5 On June 6, 2016, Graham was sitting in his parked vehicle when
officers responding to an unrelated call detected an odor of synthetic
marijuana emanating from his vehicle. After further investigation, the
officers found synthetic marijuana and drug paraphernalia in the vehicle. As
a result of this incident, Graham was charged at Docket No. 3420-2016 with
PWID, possession of controlled substances, and possession of drug
paraphernalia. 6
On August 22, 2016, Graham entered a negotiated guilty plea in both
cases. At Docket No. 613-2016, he pled guilty to one count each of firearms
not to be carried without a license and possession of controlled substances,
and at Docket No. 3420-2015, he entered a guilty plea to one count of
PWID. In exchange for the plea, the Commonwealth agreed to a standard
range sentence of two and one-half to five years' imprisonment for the
firearms charge, and concurrent standard range sentences for the drug
offenses. The trial court imposed the negotiated sentence that same day.'
5See 18 Pa.C.S. § 6106(a)(1), 35 P.S. § 780-113(a)(16), and 75 Pa.C.S. §§
3334(a) (turning movements and required signals) and 4524(e)(i) (sun
screening obstruction), respectively.
6 See 35 P.S. §§ 780-113(a)(30), (a)(16), and (a)(32).
7
Specifically, Graham was sentenced to concurrent terms of one to five
years' imprisonment for PWID and six to 24 months' imprisonment for
simple possession.
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On August 31, 2016, Graham filed a pro se petition for
reconsideration/modification of his sentence, asserting that his guilty plea
was coerced by counsel. However, since Graham was still represented by
plea counsel, the trial court did not consider the petition, but rather,
forwarded it to counsel. Thereafter, on September 6, 2016, Graham filed a
pro se letter in the trial court, requesting the court allow him to withdraw his
guilty plea and appoint new counsel. Again, the court forwarded the letter
to counsel.
Thereafter, plea counsel requested permission to withdraw based on
Graham's allegations of ineffectiveness. The court granted the request on
September 6, 2016, and promptly appointed conflict counsel. On September
22, 2016, conflict counsel filed a post -sentence motion nunc pro tunc,
challenging the discretionary aspects of his sentence and the ineffectiveness
of plea counsel. The same day, counsel filed a notice of appeal to preserve
Graham's direct appeal rights. The next day, the trial court denied counsel's
request to proceed nunc pro tunc.8
When counsel files a petition to withdraw and accompanying Anders
brief, we must first examine the request to withdraw before addressing any
8 On October 11, 2016, the trial court ordered Graham to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Counsel responded on October 19, 2016, by filing a statement of his intent
to file an Anders brief in lieu of a Rule 1925(b) statement. See Pa.R.A.P.
1925(c)(4).
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of the substantive issues raised on appeal. Commonwealth v. Bennett,
124 A.3d 327, 330 (Pa. Super. 2015). Here, our review of the record
reveals counsel has substantially complied with the requirements for
withdrawal outlined in Anders, supra, and its progeny. Specifically,
counsel requested permission to withdraw based upon her determination
that the appeal is "wholly frivolous,"9 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 Graham and advised Graham 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 correspondence from Graham supplementing
the Anders brief. Accordingly, we will proceed to examine the record and
make an independent determination of whether the appeal is wholly
frivolous.
The first issue identified in counsel's Anders brief asserts that
Graham's guilty plea was "involuntary" due to the ineffectiveness of
preliminary hearing and plea counsel. See Anders Brief at 10. Specifically,
Graham argues if preliminary hearing counsel had a court stenographer
transcribe the hearing, "guilty plea counsel would have been able to detect
the inconsistent averments in the police criminal complaint that were
9 See Petition to Withdraw as Counsel, 12/1/2016, at ¶ 10.
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inconsistent with later police statements." Id. Furthermore, he claims plea
counsel "coerced" him into accepting a guilty plea by the following actions:
[counsel] advis[ed] him that the pretrial motion would have
been unsuccessful (which he now disputes) and further [] she
emotionally coerced him by telling him his girlfriend thought he
should take a plea (which he believes his girlfriend did not say).
Id.
We find Graham's challenge to his guilty plea is waived due to his
failure to contest the voluntariness of the plea either during the plea
colloquy or in a timely filed post -sentence motion. As this Court has
explained:
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).
Commonwealth v. Lincoln, 72 A.3d 606, 609-610 (Pa. Super. 2013),
appeal denied, 87 A.3d 319 (Pa. 2014).
We note, however, that Graham's counsel did attempt to preserve this
claim by requesting permission from the trial court to file a post -sentence
motion nunc pro tunc.
To be entitled to file a post -sentence motion nunc pro tunc, a
defendant must, within 30 days after the imposition of sentence,
demonstrate sufficient cause, i.e., reasons that excuse the late
filing. ... When the defendant has met this burden and has shown
sufficient cause, the trial court must then exercise its discretion
in deciding whether to permit the defendant to file the post -
sentence motion nunc pro tunc. If the trial court chooses to
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permit a defendant to file a post -sentence motion nunc pro tunc,
the court must do so expressly.
Commonwealth v. Dreves, 839 A.2d 1122, 1128 (Pa. Super. 2003) (en
banc) (footnote omitted). Here, the trial court denied nunc pro tunc relief,
and, accordingly, this claim is not preserved for our review.1°
The second issue identified in the Anders brief asserts the
ineffectiveness assistance of prior counsel. Specifically, Graham alleges
prior counsel: (1) failed to employ a stenographer at the preliminary
hearing; (2) withdrew a pretrial motion at Docket No. 613-2016; (3) lied
when she told him his girlfriend wanted him to enter a guilty plea; (4)
improperly caused delay in his case; (5) failed to recognized his "original
complaints may have been tampered with or contained averments
10
In the Anders brief, counsel asks this Court to address Graham's guilty
plea challenge on the merits based on Graham's pro se filing and
dissatisfaction with plea counsel. However, we remind counsel that a pro se
motion filed while a defendant is still represented by counsel is "a nullity,
having no legal effect." Commonwealth v. Nischan, 928 A.2d 349, 355
(Pa. Super. 2007), appeal denied, 936 A.2d 40 (Pa. 2007).
Moreover, even if we were to consider Graham's argument, we would
conclude he is entitled to no relief. In his written plea colloquies, Graham
acknowledged that he was "pleading guilty of [his] own free will."
Statements Accompanying Defendant's Request to Enter a Guilty Plea,
8/22/2016, Docket Nos. 613-2016 and 3420-2016, at ¶ 15. Further, during
the oral colloquy, Graham stated that (1) he prepared and signed the written
plea colloquies, (2) "everything" in the documents was true, and (3) he was
"satisfied with the services [he] received from [his] attorney[.]" N.T.,
8/22/2016, at 5. "A defendant is bound by the statements made during the
plea colloquy, and a defendant may not later offer reasons for withdrawing
the plea that contradict statements made when he pled." Commonwealth
v. Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012), appeal denied, 63 A.3d
773 (Pa. 2013).
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inconsistent with later police statements[;]" and (5) coerced him into
entering an involuntary plea. Anders Brief at 5.
However, it is well -established that ineffectiveness claims must be
deferred until collateral review. In Commonwealth v. Holmes, 79 A.3d
562 (Pa. 2013), the Pennsylvania Supreme Court reaffirmed the general rule
first set forth in Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), that
"claims of ineffective assistance of counsel are to be deferred to PCRA
review; trial courts should not entertain claims of ineffectiveness upon post -
verdict motions; and such claims should not be reviewed upon direct
appeal." Holmes, supra, 79 A.3d at 576. Although the Holmes Court
recognized two exceptions to that general rule, neither is applicable here.11
Accordingly, we dismiss Graham's ineffectiveness claims as premature,
without prejudice to him to raise them in a timely collateral proceeding. See
also Commonwealth v. Reid, 117 A.3d 777, 787 (Pa. Super. 2015)
(finding ineffectiveness claims raised on direct appeal were premature
pursuant to Holmes).
11 The Holmes Court limited those exceptions to the following: (1) where
the trial court determines that a claim of ineffectiveness is "both meritorious
and apparent from the record so that immediate consideration and relief is
warranted[;]" or (2) where the trial court finds "good cause" for unitary
review, and the defendant makes a "knowing and express waiver of his
entitlement to seek PCRA review from his conviction and sentence, including
an express recognition that the waiver subjects further collateral review to
the time and serial petition restrictions of the PCRA." Holmes, supra, 79
A.3d at 564, 577 (footnote omitted).
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Accordingly, because we agree with counsel's assessment that
Graham's appeal is wholly 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.
J seph D. Seletyn,
Prothonotary
Date: 4/6/2017
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