J-S63004-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CYNTHIA GRAHAM : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DONALD COOPER, III :
:
Appellant : No. 1197 EDA 2019
Appeal from the Judgment of Sentence Entered March 21, 2019
In the Court of Common Pleas of Delaware County
Civil Division at No(s): No. 2019-80114
BEFORE: GANTMAN, P.J.E., MURRAY, J., and STRASSBURGER, J.*
MEMORANDUM BY GANTMAN, P.J.E.: FILED DECEMBER 06, 2019
Appellant, Donald Cooper, III, appeals from the judgment of sentence
entered in the Delaware County Court of Common Pleas, following his
negotiated guilty plea to indirect criminal contempt, for violating a protection
from abuse (“PFA”) order. We affirm and grant counsel’s petition to withdraw.
The relevant facts and procedural history of this case are as follows. On
January 22, 2019, the trial court entered a temporary PFA order prohibiting
Appellant from abusing, harassing, stalking or threatening Appellee, Cynthia
Graham, including at her residence. On January 31, 2019, the trial court
continued in full force and effect the temporary PFA order until further order
of the court and noted a hearing was scheduled for April 25, 2019. On
February 15, 2019, while the temporary PFA was still in effect, Appellee called
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* Retired Senior Judge assigned to the Superior Court.
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the police because Appellant was threatening her at her home. The police
immediately removed and arrested Appellant. Appellant entered a negotiated
guilty plea on March 21, 2019, to one count of indirect criminal contempt for
violation of the PFA. 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 sentence of six months’ probation.
Appellant did not file a post sentence motion.
Appellant timely filed a notice of appeal on Monday, April 22, 2019. On
April 24, 2019, the court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). On May 13, 2019,
counsel filed a statement of intent to file a petition to withdraw and Anders1
brief, per Pa.R.A.P. 1925(c)(4).
As a preliminary matter, appellate counsel seeks to withdraw his
representation pursuant to Anders 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
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1 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
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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 McClendon2 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
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
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2 Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).
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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 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 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 to relevant
law that might arguably support Appellant’s issue. Counsel further states the
reasons for his 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:
WHETHER THE NEGOTIATED GUILTY PLEA ENTERED IN
THIS MATTER WAS KNOWING AND VOLUNTARY.
(Anders Brief at 3). Appellant has not responded to the Anders brief.
As a second preliminary matter, “[a] defendant wishing to challenge the
voluntariness of a guilty plea on direct appeal must either object during the
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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).
Instantly, Appellant did not seek to withdraw his guilty plea at any time
orally on the record during the plea colloquy or by filing a timely post-sentence
motion. Therefore, his issue on appeal is waived. See id.; Lincoln, supra.
Following our independent review of the record, we agree the appeal is
frivolous. See Dempster, supra; Palm, supra. Accordingly, we affirm 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: 12/6/19
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