J-S09032-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT REESE :
:
Appellant : No. 1406 EDA 2019
Appeal from the Judgment of Sentence Entered April 2, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007746-2018
BEFORE: SHOGAN, J., LAZARUS, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: April 1, 2020
Appellant, Robert Reese, appeals from the judgment of sentence of two
to four years of confinement followed by two years of probation, which was
imposed after he pleaded guilty to aggravated assault and possessing
instruments of crime (“PIC”).1 With this appeal, appellate counsel has filed a
petition to withdraw and an Anders2 brief, stating that the appeal is wholly
frivolous. After careful review, we affirm and grant counsel’s petition to
withdraw.
The facts underlying this appeal are as follows:
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 2702(a) and 907(a), respectively. The aggravated assault
charge was graded as a felony of the second degree.
2 Anders v. California, 386 U.S. 738 (1967).
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On October 11th, 2018, at approximately 1:25 in the afternoon,
the complainants Jacqueline Soder and Andrea Elmaghraby, were
sitting on the steps outside of [a] home on the 2300 block of East
Clearfield Street in the City and County of Philadelphia.
While sitting on that front step, [Appellant] drove onto that block
in a blue van. [Appellant] then drove his vehicle off of the street
up onto the sidewalk and into [Elmaghraby’s] leg.
He the[n] put the car in reverse and attempted to go towards the
other complainant, Ms. Soder. Ms. Soder was not struck by the
van, however this incident was observed by 24th Police District
Officers Cristina Quintez and Sergeant Armstrong.
Upon seeing this incident, Officer Quintez and Sergeant Armstrong
did follow [Appellant] who fled, and were able to . . . stop him at
the intersection of Memphis [Street] and Allegheny Avenue in the
City and County of Philadelphia.
[Elmaghraby] did spend several days from the 11th to the 15th at
Temple Hospital where she did receive surgery for [a] broken tibia
and a rod was inserted into her leg.
Ms. Soder did not have injury as a result of this incident.
N.T., 4/2/2019, at 38-40.
On April 2, 2019, after six jurors had already been selected, Appellant
informed the trial court that he was not satisfied with his attorney but was
unwilling to accept the trial court’s offer of new counsel. Id. at 12. Following
a lunch recess, Appellant requested that he have an opportunity “to see” the
complainants, who were in the back of the courtroom. Id. at 23. Immediately
thereafter, Appellant agreed to a negotiated guilty plea. Id. at 24-25.
During the oral plea colloquy, the following exchanges occurred between
Appellant and the trial court:
THE COURT: Have you ever been treated or are you currently
being treated for any type of mental illness?
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[APPELLANT]: No.
THE COURT: Sir, are you under the influence of any drugs,
alcohol, or medication today?
[APPELLANT]: I take heart medicine. . . .
[THE COURT:] Do any of those medications impact your ability
to understand what’s going on here today?
[APPELLANT]: No.
THE COURT: Do any of those medications impact or interfere
with your ability to communicate and understand your attorney?
[APPELLANT]: No.
Id. at 25-27.
The trial court then confirmed that Appellant understood the nature of
the charges to which he was pleading, the factual basis for the plea, the
permissible range of sentences and fines, and that he would have had a right
to trial by jury had he proceeded to trial. Id. at 29-30, 38-40. Appellant also
executed a written guilty plea colloquy, the cover sheet of which reiterated
the content of the oral guilty plea colloquy and added that Appellant
understood “that the judge is not bound by the terms of any plea agreement
between [him]self, [his] attorney, and the attorney for the Commonwealth
unless the judge accepts such agreement” and that he is “presumed innocent
until [he is] proven guilty.” Colloquy for Plea of Guilty / Nolo Contendere,
4/2/2019. The written guilty plea colloquy further explained the presumption
of innocence as follows: “That means that I start out innocent—and stay
innocent unless the District Attorney proves I committed the crime(s). I do
not have to prove anything.” Written Guilty Plea Colloquy, 4/2/2019, at 1.
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Following the guilty plea colloquy, the trial court imposed the negotiated
sentence of two to four years of incarceration for aggravated assault and a
consecutive two-year probation for PIC. N.T., 4/2/2019, at 50-51.
On April 12, 2019, Appellant filed a timely post-sentence motion to
withdraw his guilty plea, which the trial court denied on April 24, 2019. On
May 9, 2019, Appellant filed this timely direct appeal.3
On October 16, 2019, appellate counsel filed an Anders brief presenting
the question of whether any of the following issues have arguable merit:
(1) whether the trial court erred in its denial of Appellant’s post-sentence
motion, because (a) Appellant’s plea was invalid and/or (b) Appellant was not
competent to enter a plea; and (2) whether the trial court imposed a legal
sentence. See Anders Brief at 6, 11-13, 15.
On October 16, 2019, appellate counsel sent a letter to Appellant,
informing Appellant that he intended to file a petition for leave to withdraw,
and he filed his petition to withdraw that same day. Appellant has not filed a
pro se response to that petition.
“[W]hen presented with an Anders brief, this court may not review the
merits of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Blauser, 166 A.3d 428, 431 (Pa. Super.
2017). An Anders brief shall comply with the requirements set forth by the
____________________________________________
3Appellant filed his statement of errors complained of on appeal on July 8,
2019. The trial court did not file an opinion.
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Supreme Court of Pennsylvania in Commonwealth v. Santiago, 978 A.2d
349, 361 (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.
Counsel seeking to withdraw on direct appeal must also meet the following
obligations to his or her client:
Counsel . . . must 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 addition to the points raised by
counsel in the Anders brief.
Commonwealth v. Schmidt, 165 A.3d 1002, 1006 (Pa. Super. 2017)
(citations and internal brackets and quotation marks omitted). “Once counsel
has satisfied the above requirements, it is then this Court’s duty to conduct
its own review of the trial court’s proceedings and render an independent
judgment as to whether the appeal is, in fact, wholly frivolous.”
Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en
banc) (quoting Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super.
2004)). Finally, “[w]e must also ‘conduct an independent review of the record
to discern if there are any additional, non-frivolous issues overlooked by
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counsel.’” In re J.D.H., 171 A.3d 903, 908 (Pa. Super. 2017) (quoting
Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015)
(footnote omitted)).
In this appeal, we observe that appellate counsel’s October 16, 2019,
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, appellate counsel’s Anders brief, at 7-9, complies with prevailing law
in that counsel has provided a procedural and factual summary of the case
with references to the record. Appellate counsel additionally advances
relevant portions of the record that arguably support Appellant’s claims that
his plea was invalid and that he was not competent to enter a plea. Id. at
13-14. However, appellate counsel believes that there is nothing in the record
that arguably supports a challenge to the legality of Appellant’s sentence. Id.
at 15. Ultimately, appellate counsel cites his reasons and conclusion that “a
direct appeal is frivolous, because there are no meritorious issues that could
be raised.” Id. at 16. Counsel’s Anders brief and procedures hence comply
with the requirements of Santiago and Schmidt. We therefore proceed to
conduct an independent review to ascertain whether the appeal is indeed
wholly frivolous.
Appellant first challenges the trial court’s denial of his post-sentence
motion to withdraw his guilty plea. Id. at 11.
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We begin by setting forth our standard of review. In
Commonwealth v. Broaden, 980 A.3d 124 (Pa.Super. 2009),
we summarized the principles governing post-sentence motions
to withdraw pleas:
[P]ost-sentence motions for withdrawal are subject to
higher scrutiny since courts strive to discourage entry of
guilty pleas as sentence-testing devices. A defendant must
demonstrate that manifest injustice would result if the court
were to deny his post-sentence motion to withdraw a guilty
plea. Manifest injustice may be established if the plea was
not tendered knowingly, intelligently, and voluntarily. In
determining whether a plea is valid, the court must examine
the totality of circumstances surrounding the plea. A
deficient plea does not per se establish prejudice on the
order of manifest injustice.
Id. at 129 (citations omitted). “It is well-settled that the decision
whether to permit a defendant to withdraw a guilty plea is within
the sound discretion of the trial court.” Commonwealth v. Hart,
174 A.3d 660, 664 (Pa.Super. 2017) (applying abuse of discretion
in post-sentencing context). The term discretion
imports the exercise of judgment, wisdom and skill so as to
reach a dispassionate conclusion, and discretionary power
can only exist within the framework of the law, and is not
exercised for the purpose of giving effect to the will of the
judges. Discretion must be exercised on the foundation of
reason, as opposed to prejudice, personal motivations,
caprice or arbitrary action. Discretion is abused when the
course pursued represents not merely an error of judgment,
but where the judgment is manifestly unreasonable or
where the law is not applied or where the record shows that
the action is a result of partiality, prejudice, bias or ill will.
Commonwealth v. Shaffer, 551 Pa. 622, 712 A.2d 749, 751
(1998) (citation omitted).
Commonwealth v. Kehr, 180 A.3d 754, 756-57 (Pa. Super. 2018).
Appellant specifically argues that his plea was invalid. Anders Brief at
12.
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“A person who elects to plead guilty is bound by the statements he
makes in open court while under oath and may not later assert grounds for
withdrawing the plea which contradict the statements he made at his plea
colloquy.” Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super.
2011); accord Commonwealth v. Wilcox, 174 A.3d 670, 674 (Pa. Super.
2017), appeal denied, 184 A.3d 545 (Pa. 2018).
Pa.R.Crim.P. 590, which pertains to procedures for entering pleas
and plea agreements, requires pleas to be entered in open court,
and specifies that the trial judge must make inquiries, on the
record, to determine whether the plea is voluntarily and
understandingly tendered. The comments to Pa.R.Crim.P. 590
provide that at a minimum, the court should make the following
inquiries:
(1) Does the defendant understand the nature of the
charges to which he or she is pleading guilty or nolo
contendere?
(2) Is there a factual basis for the plea?
(3) Does the defendant understand that he or she has the
right to trial by jury?
(4) Does the defendant understand that he or she is
presumed innocent until found guilty?
(5) Is the defendant aware of the permissible range of
sentences and/or fines for the offenses charged?
(6) Is the defendant aware that the judge is not bound by
the terms of any plea agreement tendered unless the judge
accepts such agreement?
Pa.R.Crim.P. 590, Comment.
Commonwealth v. McGarry, 172 A.3d 60, 66-67 (Pa. Super. 2017)
(footnote omitted), appeal denied, 185 A.3d 966 (Pa. 2018).
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Appellant concedes that the trial court inquired into his understanding
of the first, second, third, and fifth factors from the Comment to Pa.R.Crim.P.
590. Anders Brief at 12-13 (citing N.T., 4/2/2019, at 29-30, 38-40).
However, he contends that the trial court did not inquire into his awareness
of the fourth and sixth factors. Id. at 13. While Appellant is correct that,
during his oral guilty plea colloquy, the trial court did not discuss the
presumption of innocence and the trial court’s power to reject the terms of a
plea agreement, Appellant affirmed that he understood these matters in his
written guilty plea colloquy. Colloquy for Plea of Guilty / Nolo Contendere,
4/2/2019; Written Guilty Plea Colloquy, 4/2/2019, at 1; see also Comment
to Pa.R.Crim.P. 590 (“nothing in the rule would preclude the use of a written
colloquy that is read, completed, signed by the defendant, and made part of
the record of the plea proceedings”). Accordingly, Appellant’s argument that
his plea was invalid due to the trial court’s failure to investigate his
understanding of these two factors is belied by the record, and he thereby
cannot demonstrate the manifest injustice required for this Court to find that
the trial court abused its discretion by denying his post-sentence motion to
withdraw his guilty plea. Kehr, 180 A.3d at 756-57.
Appellant additionally urges this Court to find that the trial court erred
by denying his post-sentence motion to withdraw his plea on the basis that he
was not competent to enter into a plea due to the medications that he was
taking at the time. Anders Brief at 13-14. However, Appellant communicated
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to the trial court that he was only taking heart medication that did not impact
his comprehension or communication. N.T., 4/2/2019, at 26-27. He also
stated that he has never been treated for mental illness. Id. at 25. Appellant
is bound by these statements that he made in open court while under oath.
Yeomans, 24 A.3d at 1047; see also Wilcox, 174 A.3d at 674.
Consequently, Appellant cannot establish that his plea was not tendered
knowingly, intelligently, and voluntarily due to his lack of competency. See
Kehr, 180 A.3d at 756-57.
Finally, Appellant maintains that his sentence was illegal. Anders Brief
at 15.
“When reviewing the legality of a sentence, our standard of review is de
novo and our scope of review is plenary.” Commonwealth v. Lekka, 210
A.3d 343, 355 (Pa. Super. 2019) (citation omitted).
In the current action, Appellant pleaded guilty to aggravated assault,
graded as a felony of the second degree, and to PIC. These counts bear a
maximum penalty of ten years of incarceration and of five years of
incarceration, respectively, for an aggregate maximum potential penalty of 15
years of incarceration. Instead, Appellant’s aggregate sentence was two to
four years of confinement for aggravated assault followed by two years of
probation for PIC; as this sentence was well under the statutory maximums,
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it was legal. See Commonwealth v. Bradley, 834 A.2d 1127, 1131 (Pa.
2003) (“An illegal sentence is one that exceeds the statutory limits.”).4
Based on the foregoing, we agree with appellate counsel that the issues
raised by Appellant lack merit. See Goodwin, 928 A.2d at 291. In addition,
we have reviewed the certified record consistent with J.D.H., 171 A.3d at 908,
and Flowers, 113 A.3d at 1250, and have discovered no additional arguably
meritorious issues. Therefore, we grant appellate counsel’s petition to
withdraw and affirm the trial court’s judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/1/20
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4 Furthermore, the charges of aggravated assault and PIC do not merge for
sentencing purposes. Commonwealth v. Meekins, 644 A.2d 765, 766 (Pa.
Super. 1994).
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Com. v. Reese, R.
Combined Opinion