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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ANTHONY FARACE
Appellant No. 1699 WDA 2016
Appeal from the Judgment of Sentence Dated May 23, 2016
In the Court of Common Pleas of Washington County
Criminal Division at No(s): CP-63-CR-0002632-2014
BEFORE: STABILE, J., SOLANO, J., and FITZGERALD, J.*
MEMORANDUM BY SOLANO, J.: FILED OCTOBER 24, 2017
Appellant Anthony Farace appeals from the judgment of sentence of
16-32 months’ incarceration, which was imposed after he pleaded nolo
contendere to manufacture, delivery, or possession with intent to
manufacture or deliver a controlled substance, and to receiving stolen
property.1 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 that the Washington County Court of
Common Pleas had jurisdiction and was the proper venue to dispose of
Appellant’s case. Otherwise, we deny Appellant’s counsel’s petition to
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*
Former Justice specially assigned to the Superior Court.
1
35 P.S. § 780-113(a)(30) and 18 Pa.C.S. § 3925(a), respectively.
2
Anders v. California, 386 U.S. 738 (1967).
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withdraw and order Appellant’s counsel to submit an advocate’s brief or a
new Anders brief within thirty days of the date of this memorandum. The
Commonwealth may file a brief within thirty days after service of the brief
from Appellant’s counsel.3
In September 2014, Susan McCartan, a resident of Union Township,
Washington County, was informed by her neighbor that people were living in
her vacant trailer. Aff. of Probable Cause, 9/11/14, at 1. 4 When Ms.
McCartan went to the trailer to investigate, she observed that someone had
been inside it and that items were missing, including precious coins —
“specifically Kennedy Fifty Cent Pieces, Pennsylvania State Quarters,
Complete State Quarter Sets, Wheat Pennies, one Silver Penny, twenty
‘60/40’ quarters made of 60% silver, two 1932 silver dollars and one fire
resistant box containing paperwork.” Id. at 1-2. Ms. McCartan called the
Southwest Regional Police Department. When they arrived at the trailer, a
police officer observed two males in an adjacent property, one of whom was
later identified as Appellant. The other male, later identified as Brendan
Hensler, was driving his wife’s silver-colored Jeep Compass “and was in the
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3
If the Commonwealth does not intend to file a brief in response, we
request that the Commonwealth send a letter to this Court’s Prothonotary
informing this Court of that decision as soon as possible.
4
During Appellant’s plea hearing, he acknowledged that the facts contained
within the Affidavit of Probable Cause “can support those charges” to which
he pleaded nolo contendere. N.T., 1/20/16, at 7. We thus rely on the facts
alleged in that affidavit, as the trial court did not write an opinion pursuant
to Pa.R.A.P. 1925(a).
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process of leaving upon seeing [police arrive].” Id. at 2. When police
questioned Appellant, he “became agitated and verbally aggressive.” Id.
Appellant was arrested for disorderly conduct.
After his arrest, Appellant was found in possession of six oxycodone
pills. Aff. of Probable Cause, 9/11/14, at 3; N.T. Sentencing Hr’g, 5/23/16,
at 23, 26-28; Order, 10/14/16, at 3. Appellant then informed police that he
had an additional twenty-nine oxycodone pills and $36,000 in cash at his
residence in Finleyville, Washington County. He told officers, “I’m not a drug
dealer; I just sell pills for money.” Aff. of Probable Cause, 9/11/14, at 3.
He explained that he was going to use the currency to buy a condominium,
but he did not produce a bank statement or other documents to corroborate
that claim. N.T., 5/23/16, at 23, 25. Police found coins in Appellant’s
possession that had been reported stolen from Ms. McCartan’s trailer. Id. at
24.
On January 20, 2016, while represented by counsel, Appellant entered
an open plea. Order, 10/14/16, at 1. Question 39 of Appellant’s written
plea colloquy stated:
Your plea must be voluntary and your rights must be voluntarily,
knowingly and intelligently waived. If anyone has promised you
anything other than the terms of a plea bargain, your plea will
be rejected. If anyone has forced you or attempted to force you
in any way to plead guilty or nolo contendere, your pleas will be
rejected. Do you fully understand this?
Written Colloquy, 1/20/16, at 7. Appellant answered, “No.” Id. Question
40 stated: “Has anybody forced you to enter this plea?” Id. Appellant
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answered, “Yes.” Id. Question 41 asked, “Are you doing this of your own
free will?” Id. Appellant answered, “Yes.” To Question 50 of the written
colloquy, which asked if he was “presently taking any medication which
might affect your thinking or your free will”, Appellant answered, “No.” Id.
Question 51 asked: “Have you had any narcotics or alcohol in the last 48
hours?” Id. Appellant answered, “Yes.” Id.
The trial court conducted the following oral colloquy of Appellant
pursuant to Pa.R.Crim.P. 590:
The [trial] court: . . . Sir, you’re entering into a plea. Are you
doing this voluntarily?
[Appellant]: I really didn’t do nothing. I mean, I was
coerced into it, I was coerced into something and I’m getting the
blame for it, which I didn’t do nothing, but—I don’t understand,
you know, I really—
The [trial] court: Well, what I mean, sir, is did anyone tell you
that you have to enter this plea today?
[Appellant]: It seems like I’m being forced into it for some
reason, but I’m not sure. You know, I’m—to be honest with you,
I—
The [trial] court: Well, if you think you are being forced into
this, I cannot accept your open plea.
[Appellant]: Right. Right.
The [trial[ court: This is something you have to do voluntarily.
[Appellant]: Right.
...
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The [trial] court: [A]fter [counsel] provides that advice to
you, did you make your own independent decision to enter this
open plea?
[Appellant]: Yes.
N.T. Plea Hr’g, 1/20/16, at 13-14. When asked if he was doing so “out of
[his] own freewill,” Appellant again answered affirmatively. Id. at 14.
Appellant also acknowledged that he had completed the written colloquy
prior to his hearing. Id. at 15-17.
The trial court sentenced Appellant on May 23, 2016. On the charge of
possessing a controlled substance with intent to deliver it, the court
sentenced Appellant to confinement for a period of sixteen to thirty-two
months in a State Correctional Institution. On the charge of receiving stolen
property, the court sentenced Appellant to confinement for two to four
months, with that sentence to run concurrently with the sentence on the
drug charge. Order, 10/14/16, at 1.
On June 1, 2016, while still represented by counsel, Appellant filed a
pro se motion for a new trial and a pro se notice of appeal. According to a
handwritten notation on the back of the certificate of service accompanying
the pro se motion for a new trial, the motion for a new trial was served only
on the trial court and Washington County District Attorney’s Office. On
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June 2, 2016, the trial court denied Appellant’s pro se motion for a new
trial.5
On June 2, 2016, Appellant’s counsel filed a motion for post-sentence
relief that challenged the discretionary aspects of Appellant’s sentence and,
in the alternative, asked the trial court to permit Appellant to withdraw his
plea. The trial court did not rule on Appellant’s motion for post-sentence
relief due to the pending appeal.
On June 10, 2016, the trial court granted counsel’s motion to
withdraw. The court appointed the Washington County Public Defender to
represent Appellant in his appeal. New counsel then discontinued that
appeal. On October 14, 2016, the trial court denied Appellant’s motion for
post-sentence relief, including his alternative request to withdraw his plea.
On November 3, 2016, Appellant filed a second notice of appeal to this
Court.
Appellant’s counsel has now filed an Anders brief and petition to
withdraw.6 “When presented with an Anders brief, this Court may not
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5
There is no indication in the certified record that the trial court forwarded
Appellant’s pro se motion for a new trial to his counsel. Pa.R.Crim.P.
576(a)(4). The trial court should not have ruled on the pro se motion
because Appellant was represented by counsel. Commonwealth v. Jette,
23 A.3d 1032, 1041 (Pa. 2011).
6
On February 17, 2017, Appellant’s counsel filed his Anders brief. On
February 22, 2017, Appellant’s counsel filed his petition to withdraw as
counsel. On March 16, 2017, this Court denied the petition for failure to
notify Appellant of his appellate rights and to attach a copy of a notification
(Footnote Continued Next Page)
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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) (internal citation omitted). An Anders brief shall comply with
the requirements set forth by the Supreme Court of Pennsylvania 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 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 must also provide a copy of the Anders brief to his
client. Attending the brief must be a letter that advises the
client 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 the
Anders brief.
Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (internal
quotation marks and citation omitted). Finally, “this Court must conduct an
_______________________
(Footnote Continued)
letter to his motion to withdraw pursuant to Commonwealth v. Millisock,
873 A.2d 748, 752 (Pa. Super. 2005). This Court also struck the Anders
brief. On March 17, 2017, Appellant’s counsel filed a new Anders brief and
petition to withdraw as counsel. Appellant has not filed a pro se response to
either petition to withdraw.
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independent review of the record to discern if there are any additional, non-
frivolous issues overlooked by counsel.” Commonwealth v. Flowers, 113
A.3d 1246, 1250 (Pa. Super. 2015) (footnotes and citations omitted).
In this appeal, we observe that Appellant’s counsel’s March 17, 2017,
correspondence to Appellant provided a copy of the Anders Brief to
Appellant and advised Appellant of his right either to retain new counsel or
to proceed pro se on appeal to raise any points he deems worthy of the
court’s attention. Further, counsel’s Anders Brief, at 8-11, complies with
prevailing law in that counsel has provided a procedural and factual
summary of the case with references to the record. Appellant’s counsel
believes there is nothing in the record that arguably supports the appeal.
Id. at 14. Appellant’s counsel concludes that he “cannot identify an issue on
appeal that has merit and is not wholly frivolous.” Id. at 19. Thus,
Appellant’s counsel has complied with the requirements of Santiago and
Orellana. We therefore proceed to conduct an independent review to
ascertain whether the appeal is indeed wholly frivolous.
We glean from the Anders brief that counsel has raised the following
issues: (1) the jurisdiction of the trial court, (2) the denial of Appellant’s pro
se motions to withdraw his plea and for a new trial, (3) the legality of
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Appellant’s sentence, and (4) the discretionary aspects of the sentence.
Anders Brief at 13, 15-16, 18.7
Jurisdiction
Subject matter jurisdiction is purely a question of law.
Commonwealth v. Jones, 929 A.2d 205, 211 (Pa. 2007). “Our standard of
review is de novo, and our scope of review is plenary.” Id. (citation
omitted).
Controversies arising out of violations of the Crimes Code are
entrusted to the original jurisdiction of the courts of common
pleas for resolution. See 18 Pa.C.S. § 102. Every jurist within
that tier of the unified judicial system is competent to hear and
decide a matter arising out of the Crimes Code.
Commonwealth v. Bethea, 828 A.2d 1066, 1074 (Pa. 2003), cert.
denied, 540 U.S. 1118 (2004). Here, Appellant was charged with violations
of the Crimes Code, and, thus, the Court of Common Pleas had jurisdiction
to hear his case.
Additionally, according to the affidavit of probable cause, the charges
against Appellant stem from incidents in Union Township and in Finleyville,
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7
The Commonwealth’s argument to this Court in its entirety is as follows:
Appellant’s counsel filed a no-merit letter, Anders Brief and
Motion to withdrawal as counsel. For the reasons set forth in
Appellant’s Counsel’s no-merit letter, and the Court of Common
Pleas’ October 14th, 2016 Order, the Commonwealth avers that
Appellant cannot plead or prove any of the grounds for relief and
the lower Court[’]s decision should be affirmed.
Commonwealth’s Brief at 5 (some formatting altered).
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both located in Washington County, Pennsylvania. Aff. of Probable Cause,
9/11/14, at 1, 3. Thus, the Washington County Court of Common Pleas had
jurisdiction and was the proper venue to dispose of Appellant’s case, and the
trial court did not commit an error of law by hearing this case.
Remaining Issues
Before addressing the remaining issues raised in counsel’s Anders
brief, we have identified, as set forth above, inconsistent responses in
Appellant’s plea colloquy that call into question whether his plea was made
knowingly, voluntarily, and intelligently. See Commonwealth v.
Muhammad, 794 A.2d 378, 383 (Pa. Super. 2002) (“A plea rises to the
level of manifest injustice when it was entered into involuntarily,
unknowingly, or unintelligently”); see also Flowers, 113 A.3d at 1250
(“this Court must conduct an independent review of the record to discern if
there are any additional, non-frivolous issues overlooked by counsel”).
As noted above, Appellant’s written plea colloquy stated that he did
not understand that: his plea must be voluntary; his rights must be
voluntarily, knowingly, and intelligently waived; and his plea will be rejected
if anyone had promised him anything other than the terms of a plea bargain
or forced him or attempted to force him in any way to plead nolo
contendere. Written Colloquy, 1/20/16, at 7 ¶ 39. Appellant’s written plea
colloquy also stated that he had been forced into entering the plea and had
taken narcotics or imbibed alcohol in the previous 48 hours. Id. at ¶¶ 40,
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51. Additionally, Appellant provided replies on his written plea colloquy that
conflicted with these troubling answers, including that he was pleading of his
own free will, that no threats had been made against him, and that he was
not taking any medication that might affect his thinking or free will. Id. at
¶¶ 41-42, 50. Appellant gave similar contradictory responses during his oral
plea colloquy, stating that he had made his own independent decision to
enter an open plea and was doing so out of his own free will. N.T., 1/20/16,
at 13-14.
Because we perceive a potential non-frivolous issue as to whether
Appellant’s guilty plea was knowingly, voluntarily, and intelligently made,
see Muhammad, 794 A.2d at 383, we deny counsel’s petition to withdraw
and order counsel to submit either an advocate’s brief or a new Anders brief
within thirty days of the date of this memorandum. Counsel may raise any
other non-frivolous issues he has identified. The Commonwealth may file a
brief within thirty days of service of the brief from Appellant’s counsel. In
light of this disposition, we do not reach the other issues identified by
Appellant’s counsel.
Petition to withdraw denied. Anders brief stricken. Appellant’s
counsel ordered to file an advocate’s brief or a new Anders brief within
thirty days of the date of this memorandum. The Commonwealth may file a
brief within thirty days of Appellant’s counsel’s brief. Panel jurisdiction
retained.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/24/2017
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