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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
DELEON DOTSON :
:
Appellant : No. 998 MDA 2019
Appeal from the Judgment of Sentence Entered May 6, 2019
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0004860-2018
BEFORE: KUNSELMAN, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY KING, J.: FILED: MAY 18, 2020
Appellant, Deleon Dotson, appeals from the judgment of sentence
entered in the Dauphin County Court of Common Pleas, following his open
guilty plea to terroristic threats.1 We affirm and grant counsel’s petition to
withdraw.
The relevant facts and procedural history of this case are as follows.
Appellant threatened to kill his girlfriend during a domestic dispute. On May
6, 2019, Appellant entered an open guilty plea to one count of terroristic
threats. The court accepted Appellant’s plea and sentenced him to sixteen
(16) to forty-eight (48) months’ imprisonment. The court also revoked
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. § 2706.
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intermediate punishment for a prior, unrelated terroristic threats conviction
and resentenced Appellant to a concurrent term of thirty (30) to sixty (60)
months’ imprisonment. Immediately following the sentencing announcement,
Appellant told counsel that he wanted to withdraw his guilty plea. Counsel
informed the court of Appellant’s request, but the court concluded there were
no grounds to support a withdrawal.
On May 15, 2019, Appellant timely filed a post-sentence motion
challenging the validity of his plea. The court denied Appellant’s post-
sentence motion on June 14, 2019. On June 20, 2019, Appellant timely filed
a notice of appeal. The court ordered Appellant to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal on June 25, 2019. On
July 16, 2019, counsel timely filed a Rule 1925(c)(4) statement of intent to
file an Anders2 brief. Counsel subsequently filed an application to withdraw
and an Anders brief with this Court.
As a preliminary matter, counsel seeks to withdraw 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
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2 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
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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). After establishing 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).
In Santiago, supra, our Supreme Court addressed the briefing
requirements where court-appointed appellate counsel seeks to withdraw
representation:
Neither Anders nor [Commonwealth v. McClendon, 495
Pa. 467, 434 A.2d 1185 (1981)] 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:
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[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
have led to the conclusion that the appeal is frivolous.
Id. at 178-79, 978 A.2d at 361.
Instantly, Appellant’s counsel has filed a petition to withdraw. The
petition states counsel reviewed the record and determined the appeal is
wholly frivolous. Counsel also supplied Appellant with a copy of the brief and
a letter explaining Appellant’s right to retain new counsel or to proceed pro se
to raise any additional issues Appellant deems worthy of this Court’s attention.
In the Anders brief, counsel provided a summary of the facts and
procedural history of the case. Counsel’s argument 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.
Appellant has not responded to the Anders brief pro se or with newly
retained private counsel. Counsel raises the following issue on Appellant’s
behalf:
SHOULD APPELLATE COUNSEL BE PERMITTED TO
WITHDRAW AS COUNSEL BECAUSE ANY APPELLATE ISSUES
IN THE INSTANT CASE ARE FRIVOLOUS?
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(Anders Brief at 5).
On appeal, Appellant contends he is actually innocent, and the court
should have granted his post-sentence motion to withdraw the guilty plea.
Appellant concludes he is entitled to some form of relief. We disagree.
As a general rule, the entry of a guilty plea constitutes a waiver of all
defects and defenses except lack of jurisdiction, invalidity of the plea, and
legality of the sentence. Commonwealth v. Main, 6 A.3d 1026 (Pa.Super.
2010). “[A] defendant who attempts to withdraw a guilty plea after
sentencing must demonstrate prejudice on the order of manifest injustice
before withdrawal is justified.” Commonwealth v. Pantalion, 957 A.2d
1267, 1271 (Pa.Super. 2008). “A plea rises to the level of manifest injustice
when it was entered into involuntarily, unknowingly, or unintelligently.” Id.
(quoting Commonwealth v. Muhammad, 794 A.2d 378, 383 (Pa.Super.
2002)).
Our Rules of Criminal Procedure mandate that pleas are taken in open
court and the court must conduct an on-the-record colloquy to ascertain
whether a defendant is aware of his rights and the consequences of his plea.
Commonwealth v. Hodges, 789 A.2d 764 (Pa.Super. 2002). Specifically,
the court must affirmatively demonstrate a defendant understands: (1) the
nature of the charges to which he is pleading guilty; (2) the factual basis for
the plea; (3) his right to trial by jury; (4) the presumption of innocence; (5)
the permissible ranges of sentences and fines possible; and (6) that the judge
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is not bound by the terms of the agreement unless he accepts the agreement.
Commonwealth v. Watson, 835 A.2d 786 (Pa.Super. 2003).
This Court will evaluate the adequacy of the plea colloquy and the
voluntariness of the resulting plea by examining the totality of the
circumstances surrounding the entry of that plea. Muhammad, supra. A
guilty plea will be deemed valid if an examination of the totality of the
circumstances surrounding the plea shows that the defendant had a full
understanding of the nature and consequences of his plea such that he
knowingly and intelligently entered the plea of his own accord.
Commonwealth v. Rush, 909 A.2d 805 (Pa.Super. 2006).
Pennsylvania law presumes a defendant who entered a guilty plea was
aware of what he was doing and bears the burden of proving otherwise.
Commonwealth v. Pollard, 832 A.2d 517 (Pa.Super. 2003). A defendant
who decides to plead guilty is bound by the statements he makes while under
oath, “and he may not later assert grounds for withdrawing the plea which
contradict the statements he made at his plea colloquy.” Id. at 523. “Our
law does not require that a defendant be totally pleased with the outcome of
his decision to plead guilty, only that his decision be voluntary, knowing and
intelligent.” Id. at 524.
Instantly, Appellant executed a written guilty plea colloquy on May 6,
2019. The written colloquy fully communicated Appellant’s decision to plead
guilty. In the written colloquy, Appellant acknowledged the voluntariness of
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his plea and his responsibility for the charged crime. Appellant also recognized
the rights he was relinquishing by pleading guilty, including his right to a trial
by judge or jury, his right to ensure the Commonwealth met its burden of
proof, and his limited appeal rights.
That same day, Appellant attended the guilty plea hearing. During the
hearing, the Commonwealth recited the factual basis for the plea. Appellant
confirmed that he wished to plead guilty based upon the facts as stated by
the Commonwealth. Appellant also confirmed that he had completed and
signed the written colloquy, and he understood the consequences of entering
his plea.
Under the totality of these circumstances, Appellant entered a knowing,
voluntary, and intelligent guilty plea following adequate colloquies. See
Rush, supra; Muhammad, supra. Therefore, the court properly denied
Appellant’s post-sentence motion to withdraw the guilty plea. Following our
independent review of the record, we conclude the appeal is wholly frivolous.
See Dempster, supra; Palm, supra. Accordingly, we affirm the judgment
of sentence and grant counsel’s petition to withdraw.
Judgment of sentence affirmed. Counsel’s petition to withdraw is
granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/18/20
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