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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
CHRISTOPHER MYERS :
:
Appellant : No. 573 EDA 2019
Appeal from the Judgment of Sentence Entered November 21, 2017
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0000112-2017
BEFORE: GANTMAN, P.J.E., STABILE, J., and STEVENS*, P.J.E.
MEMORANDUM BY GANTMAN, P.J.E.: FILED NOVEMBER 19, 2019
Appellant, Christopher Myers, appeals nunc pro tunc from the judgment
of sentence entered in the Chester County Court of Common Pleas, following
his negotiated guilty plea to three counts of burglary.1 We affirm and grant
counsel’s petition to withdraw.
The relevant facts and procedural history of this case are as follows. On
November 21, 2017, Appellant entered a negotiated guilty plea to three counts
of burglary. Before accepting the plea, Appellant completed a written guilty
plea colloquy and the court conducted an oral plea colloquy to confirm
Appellant’s plea was knowing, intelligent, and voluntary. The court sentenced
Appellant that day to the negotiated aggregate sentence of 6½ to 13 years’
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1 18 Pa.C.S.A. § 3502(a)(1).
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* Former Justice specially assigned to the Superior Court.
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imprisonment, plus five years’ probation. Appellant did not file post-sentence
motions or a direct appeal.
On September 21, 2018, Appellant filed a pro se petition under the Post
Conviction Relief Act (“PCRA”).2 In his petition, Appellant alleged counsel was
ineffective for failing to file requested post-sentence motions and a requested
direct appeal. Specifically, Appellant claimed he wanted to challenge the
discretionary aspects of his sentence, which required preservation in the trial
court. Appellant sought reinstatement of his post-sentence motion and direct
appeal rights nunc pro tunc. The court appointed counsel on September 25,
2018. On January 24, 2019, with agreement from the Commonwealth, the
court restored only Appellant’s direct appeal rights nunc pro tunc.
Appellant timely filed a notice of appeal nunc pro tunc on February 22,
2019. On February 25, 2019, the court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Counsel subsequently filed a statement of intent to file a petition to withdraw
and Anders3 brief, per Pa.R.A.P. 1925(c)(4).
As a preliminary matter, appellate counsel seeks to withdraw her
representation pursuant to Anders and Commonwealth v. Santiago, 602
Pa. 159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: 1)
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2 42 Pa.C.S.A. §§ 9541-9546.
3 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
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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).
In Santiago, supra, our Supreme Court addressed the briefing
requirements where court-appointed appellate counsel seeks to withdraw
representation:
Neither Anders nor McClendon4 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.
* * *
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
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4 Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).
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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. After confirming 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). See also
Commonwealth v. Dempster, 187 A.3d 266 (Pa.Super. 2018) (en banc).
Instantly, appellate counsel has filed an amended petition to withdraw.5
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 proper letter explaining Appellant’s immediate
right to retain new counsel or proceed pro se to raise any additional issues
Appellant deems worthy of this Court’s attention. In the Anders brief, counsel
provides a summary of the facts and procedural history of the case and refers
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5 Counsel initially filed an Anders brief on May 29, 2019, but her letter
advising Appellant of his rights was deficient. Consequently, this Court denied
counsel’s withdrawal petition and remanded the matter briefly with
instructions for counsel to file an amended petition to withdraw including a
new letter to Appellant advising him of his immediate right, either pro se or
with privately retained counsel, to file a brief on any additional points
Appellant deemed worthy of review. On September 3, 2019, counsel
complied.
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to relevant law that might arguably support Appellant’s issue. Counsel further
states the reasons for her conclusion that the appeal is wholly frivolous.
Therefore, counsel has substantially complied with the technical requirements
of Anders and Santiago.
Counsel raises the following issue on Appellant’s behalf:
DID APPELLANT ENTER HIS GUILTY PLEA KNOWINGLY,
VOLUNTARILY AND INTELLIGENTLY?
(Anders Brief at 4).6
In general, “[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.”
Commonwealth v. Lincoln, 72 A.3d 606, 609-10 (Pa.Super. 2013), appeal
denied, 624 Pa. 688, 87 A.3d 319 (2014) (holding defendant failed to preserve
challenge to validity of guilty plea where he did not object during plea colloquy
or file post-sentence motion to withdraw plea). See also Pa.R.Crim.P.
720(A)(1), (B)(1)(a)(i) (stating post-sentence motion challenging validity of
guilty plea shall be filed no later than 10 days after imposition of sentence).
Where the court reinstates direct appeal rights nunc pro tunc, the
defendant is not automatically entitled to reinstatement of his post-sentence
rights nunc pro tunc as well. Commonwealth v. Liston, 602 Pa. 10, 977
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6Appellant has not responded by the deadline to the Anders brief, either pro
se or with new counsel.
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A.2d 1089 (2009). Nevertheless, a PCRA court can reinstate a defendant’s
post-sentence rights nunc pro tunc if the defendant successfully pleads and
proves he was deprived of the right to file and litigate post-sentence motions
as a result of ineffective assistance of counsel. Id. at 19 n.9, 977 A.2d at
1094 n.9 (noting counsel may be deemed ineffective for failing to file post-
sentence motions when claim asserted requires preservation in trial court for
purposes of appellate review).
Instantly, Appellant entered a guilty plea on November 21, 2017, to
three counts of burglary in exchange for the negotiated sentence of 6½ to 13
years’ imprisonment, plus five years’ probation. The court immediately
imposed the negotiated sentence. Appellant did not file post-sentence
motions or a direct appeal.
On September 21, 2018, Appellant timely filed a pro se PCRA petition
requesting reinstatement of his post-sentence motion and direct appeal rights
nunc pro tunc. Significantly, Appellant did not contend that he wanted to
challenge the validity of his guilty plea. Rather, Appellant claimed only that
he wanted to challenge the discretionary aspects of the sentence imposed,
although the negotiated plea agreement effectively precluded that claim. See
Commonwealth v. Reid, 117 A.3d 777 (Pa.Super. 2015) (holding appellant
was prohibited from challenging discretionary aspects of sentence where court
imposed negotiated sentence following appellant’s guilty plea; one who pleads
guilty and receives negotiated sentence may not then seek discretionary
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review of that sentence). The Commonwealth agreed to reinstate only
Appellant’s direct appeal rights nunc pro tunc. Given the issue Appellant
asserted as the basis for his post-sentence motion, the court had no reason
to reinstate post-sentence-motion rights nunc pro tunc. See Liston, supra.
Compare Commonwealth v. Rivera, 154 A.3d 370 (Pa.Super. 2017) (en
banc), appeal denied, 642 Pa. 121, 169 A.3d 1072 (2017) (affirming
reinstatement of post-sentence-motion rights nunc pro tunc because issue
appellant sought to raise, regarding withdrawal of his plea, required
preservation in trial court). Absent a challenge in the trial court to the validity
of his guilty plea, Appellant has no viable claim for appeal. See Lincoln,
supra; Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i). Following our independent
review of the record, we agree the appeal is frivolous. See Palm, supra.
Accordingly, we affirm and grant counsel’s amended petition to withdraw.
Judgment of sentence affirmed; counsel’s amended petition to withdraw
is granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/19/19
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