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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
Appellee :
:
v. :
:
RONALD ALSTON, JR. :
: No. 1736 MDA 2017
Appellant :
Appeal from the Judgment of Sentence September 14, 2017
in the Court of Common Pleas of Luzerne County
Criminal Division at No.: CP-40-CR-0000257-2017
BEFORE: BOWES, J., MURRAY, J., and PLATT*, J.
MEMORANDUM BY PLATT, J.: FILED APRIL 02, 2018
Appellant, Ronald Alston, Jr., appeals from the judgment of sentence
imposed pursuant to his negotiated guilty plea to aggravated assault of a
corrections officer, 18 Pa.C.S.A. § 2702(a)(3). Counsel has filed a petition to
withdraw pursuant to Anders v. California, 386 U.S. 738 (1967) and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We affirm the
judgment of sentence and grant counsel’s petition.
On September 14, 2017, Appellant entered a negotiated guilty plea with
the assistance of counsel, to the foregoing charge. The prosecutor put the
terms of the agreement on the record, as follows:
The parties have reached an agreement where [Appellant] will
plead guilty as follows. Count one, aggravated assault of a
[c]orrections [o]fficer, a felony of the second degree, ten years,
$25,000 maximum penalty. No restitution is owed.
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* Retired Senior Judge assigned to the Superior Court.
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Commonwealth and defense agree, subject to court approval, to
a sentence of 21 to 42 months, consecutive to his current
sentences. Any other charges not listed on the guilty plea from
the criminal information are withdrawn. [Appellant] to pay costs.
No further agreement as to sentence.
(N.T. Guilty Plea and Sentencing, 9/14/17, at 2) (emphasis added). The court
then conducted a colloquy of Appellant in which he agreed that he understood
the maximum sentence to which he was exposed and the terms of the agreed
upon sentence; that he reviewed the terms of the plea agreement with his
attorney; that he understood the trial rights he was giving up by pleading
guilty; that he was not forced to enter the plea; and that he was not promised
anything other than the plea agreement. (See id. at 2-5). Immediately
thereafter, the trial court accepted the plea, found that it was voluntarily
given, and that there was a factual basis for it.1 (See id. at 6). It then
imposed the agreed-upon sentence. (See id. at 7).
On September 19, 2017, Appellant filed a counseled motion for
reconsideration of sentence in which he requested that the instant sentence
run concurrently with one previously imposed. On October 10, 2017, the trial
court denied the motion. Appellant timely appealed on November 7, 2017.
On November 21, 2017, Appellant’s counsel filed a statement of intent to file
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1 Appellant admitted that, on October 30, 2016, while he was an inmate at
SCI-Dallas, he struck corrections officer, Captain Martin, resulting in a
laceration to the officer’s face and a fracture of Captain Martin’s right index
finger. (See N.T. Guilty Plea and Sentencing, at 4).
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an Anders brief. See Pa.R.A.P. 1925(c)(4). The court issued an opinion on
December 8, 2017. See Pa.R.A.P. 1925(a).2 On January 26, 2018, counsel
filed an Anders brief and petition to withdraw. Appellant has not responded.
Before reaching Appellant’s issues, we must consider counsel’s request
to withdraw. See Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.
2009).
The standard of review for an Anders brief is well-settled.
Court-appointed counsel who seek to withdraw from representing
an appellant on direct appeal on the basis that the appeal is
frivolous must:
(1) petition the court for leave to withdraw
stating that, after making a conscientious examination
of the record, counsel has determined that the appeal
would be frivolous; (2) file a brief referring to anything
that arguably might support the appeal but which
does not resemble a “no-merit” letter or amicus curiae
brief; and (3) furnish a copy of the brief to the
defendant and advise the defendant of his or her right
to retain new counsel or raise any additional points
that he or she deems worthy of the court’s attention.
Id. (citation omitted). Further, our Supreme Court ruled in Santiago, supra,
that Anders briefs must contain “a discussion of counsel’s reasons for
believing that the client’s appeal is frivolous[.]” Santiago, supra at 360.
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2 Appellant’s appointed counsel from the Luzerne County Public Defender’s
Office, Amanda M. Young, Esquire, withdrew her appearance on January 26,
2018, and current appointed counsel from the same office, Robert Buttner,
Esquire, filed the Anders brief and petition to withdraw.
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Instantly, counsel’s Anders brief and application to withdraw
substantially comply with the applicable technical requirements and reveal
that he has made “a conscientious examination of the record [and] determined
that the appeal would be frivolous[.]” Lilley, supra at 997 (citation omitted).
Additionally, the record establishes that counsel served Appellant with a copy
of the Anders brief and application to withdraw, and a letter of notice, which
advised Appellant of his right to retain new counsel or to proceed pro se and
raise additional issues to this Court. See id.; (see also Petition for Leave to
Withdraw as Counsel, 1/26/18, Exhibit A, at 1). Further, the application and
brief cite “to anything that arguably might support the appeal[.]” Lilley,
supra at 997 (citation omitted); (see also Anders Brief, at 4). As noted by
our Supreme Court in Santiago, the fact that some of counsel’s statements
arguably support the frivolity of the appeal does not violate the requirements
of Anders. See Santiago, supra at 360-61.
Having concluded that counsel’s petition and brief comply with the
technical Anders requirements, we must “conduct [our] own review of the
trial court’s proceedings and render an independent judgment as to whether
the appeal is, in fact, wholly frivolous.” Lilley, supra at 998 (citation
omitted).
The Anders brief raises one issue for our review. “Whether the
imposition of a consecutive 21 month to 42 month sentence in a state
correctional institution, which is the result of a plea agreement, is harsh and
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excessive when [Appellant] took responsibility by pleading guilty[?]” (Anders
Brief, at 1).
Appellant’s issue challenges the discretionary aspects of his sentence.
“Generally, a plea of guilty amounts to a waiver of all defects and defenses
except those concerning the jurisdiction of the court, the legality of the
sentence, and the validity of the guilty plea.” Commonwealth v. Morrison,
173 A.3d 286, 290 (Pa. Super. 2017) (citation omitted). Further, when
the plea agreement contains a negotiated sentence which is
accepted and imposed by the sentencing court, there is no
authority to permit a challenge to the discretionary aspects of that
sentence. If either party to a negotiated plea agreement believed
the other side could, at any time following entry of sentence,
approach the judge and have the sentence unilaterally altered,
neither the Commonwealth nor any defendant would be willing to
enter into such an agreement. Permitting a discretionary appeal
following the entry of a negotiated plea would undermine the
designs and goals of plea bargaining, and would make a sham of
the negotiated plea process[.]
Id. (citation omitted).
Instantly, Appellant, with the assistance of counsel, negotiated the
terms of his guilty plea, including the specific duration of the sentence, and
the fact that it would run consecutively to any sentence he was then-serving.
(See N.T. Guilty Plea and Sentencing, at 2). The trial court sentenced him to
the agreed-upon plea. (See Trial Court Opinion, 12/08/17, at 1; see N.T.
Guilty Plea and Sentencing, at 7). Appellant’s issue does not challenge the
court’s jurisdiction, the legality of his sentence, or the validity of his plea, and
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he waived any challenge to the discretionary aspects of his sentence by
entering the negotiated guilty plea. See Morrison, supra at 290.
Therefore, based on our own independent review of the record, we
conclude that Appellant’s claim is “wholly frivolous” and does not merit relief.
Lilley, supra at 998 (citation omitted). Additionally, we do not find any non-
frivolous issues that would merit relief.
Judgment of sentence affirmed. Counsel’s petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/2/2018
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Com. v. Alston, R., Jr.
Combined Opinion