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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MAURICE CHAMBERS :
:
Appellant : No. 3547 EDA 2019
Appeal from the Judgment of Sentence Entered May 24, 2018
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0004073-2017
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY PANELLA, P.J.: FILED SEPTEMBER 18, 2020
Appellant, Maurice Chambers, appeals nunc pro tunc from the judgment
of sentence entered following his negotiated guilty plea in connection with an
incident in which he committed an armed robbery of a Family Dollar store.
Additionally, Chambers’ court-appointed appellate counsel seeks to withdraw
pursuant to Anders v. California, 386 U.S. 738 (1967). We affirm the
judgment of sentence and grant counsel permission to withdraw.
On May 24, 2018, Chambers entered a negotiated guilty plea to robbery
and possessing an instrument of crime. He was sentenced the same day,
pursuant to the negotiated plea agreement, to an aggregate eleven and one-
half to twenty-three years’ incarceration, followed by five years’ probation.
Chambers did not file a post-sentence motion or a direct appeal.
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After filing various pro se motions and petition for relief pursuant to the
Post Conviction Relief Act (“PCRA”)1 the trial court entered an order, granting
in part and denying in part his PCRA petition, and reinstated Chambers’ direct
appeal rights nunc pro tunc, due to plea counsel’s failure to file a requested
direct appeal. Plea counsel was permitted to withdraw from representation
after filing a Finley2 no-merit letter.
Appellate counsel was appointed and filed a timely notice of appeal.
Subsequently, appellate counsel filed an Anders brief and a petition to
withdraw as counsel with this Court.
We turn first to counsel’s petition to withdraw. To withdraw pursuant to
Anders, counsel 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) furnish a copy
of the [Anders] brief to the [appellant]; and 3) advise the
[appellant] that he or she has the right to retain private counsel
or raise additional arguments that the [appellant] deems worthy
of the court’s attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc) (citation omitted). With respect to the third requirement of Anders,
that counsel inform the appellant of his or her rights in light of counsel’s
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1 42 Pa.C.S.A. §§ 9541-9546.
2 See Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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withdrawal, this Court has held that counsel must “attach to their petition to
withdraw a copy of the letter sent to their client advising him or her of their
rights.” Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).
An Anders brief must comply with the following requirements:
(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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). “[I]f counsel’s
petition and brief satisfy Anders, we will then undertake our own review of
the appeal to determine if it is wholly frivolous.” Commonwealth v. Wrecks,
931 A.2d 717, 721 (Pa. Super. 2007) (brackets added, citation omitted).
We find appellate counsel has complied with the preliminary
requirements of Anders. Appellate counsel filed a petition to withdraw,
certifying he has reviewed the case and determined that Chambers’s appeal
is frivolous. Further, appellate counsel attached to his petition a copy of his
letter to Chambers advising him of his rights, including his immediate right to
proceed pro se and/or right to hire private counsel. Appellate counsel also filed
a brief, which includes a summary of the history and facts of the case,
potential issues that could be raised by Chambers, and his assessment of why
those issues are meritless, with citations to relevant legal authority. Appellate
counsel has thus complied with the requirements of Anders.
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Chambers exercised his right to file a response, in which he asserts his
appellate counsel “needs to work harder” on his case. Pro Se Response,
5/15/2020, at 1. Specifically, he states he informed his appellate counsel that
he was forced to put his name on the plea colloquy, that plea counsel filled
out the colloquy and had written in Chambers’s initials for him. See id.
Further, he asserted that plea counsel answered affirmatively to numerous
questions in the colloquy that he claims are lies, including whether he was
fully informed and understood what he was pleading to, and whether he was
forced to plead guilty. See id., at 1, 5-6. We proceed to review the issues
outlined in the Anders brief as well as Chambers’ response.
In his Anders brief, appellate counsel raises a potential issue regarding
the voluntariness of Chambers’s guilty plea. Appellate counsel notes
Chambers contends that his mental state prevented his guilty plea from being
knowing, intelligent and voluntary. While brief and undeveloped, it is clear
Chambers attempts to raise this matter in his response as well.
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.
Failure to employ either measure results in waiver. Historically,
Pennsylvania courts adhere to this waiver principle because [i]t is
for the court which accepted the plea to consider and correct, in
the first instance, any error which may have been committed.
Commonwealth v. Lincoln, 72 A.3d 606, 609-610 (Pa. Super. 2013)
(citations and internal quotation marks omitted).
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Instantly, Chambers failed to properly preserve a claim challenging his
guilty plea by either objecting during the plea colloquy or filing a post-
sentence motion to withdraw the plea. See Pa.R.Crim.P. 720(B)(1)(a)(i).
Accordingly, Chambers is not entitled to relief on a claim challenging his plea.
Even if we did not find the issue waived, we note the issue is without
merit. The decision to allow a defendant to withdraw their plea post-sentence
is a matter that rests within the sound discretion of the trial court. See
Commonwealth v. Muhammad, 794 A.2d 378, 382 (Pa. Super. 2002).
Furthermore, a request to withdraw a guilty plea made after sentencing is
subject to a higher scrutiny “since courts strive to discourage [the] entry of
guilty pleas as sentence-testing devices.” Commonwealth v. Flick, 802 A.2d
620, 623 (Pa. Super. 2002) (citation omitted). Therefore, in order to withdraw
a guilty plea after the imposition of sentence, a defendant must make a
showing of prejudice which resulted in a “manifest injustice.” Id. (citation
omitted). A defendant meets this burden only if he can demonstrate that his
guilty plea was entered involuntarily, unknowingly, or unintelligently. See
Commonwealth v. Stork, 737 A.2d 789, 790 (Pa. Super. 1999).
Moreover, once a defendant enters a guilty plea, it is presumed that he
was aware of what he was doing. See id., at 790. Consequently, defendants
are bound by statements they make at their guilty plea colloquy and may not
successfully assert any claims that contradict those statements. See
Muhammad, 794 A.2d at 384.
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A review of the certified record amply supports our conclusion that
Chambers is not entitled to withdraw his guilty plea post-sentencing.
Prior to the guilty plea hearing, Chambers completed a written guilty
plea colloquy which set forth the elements of the offenses he was pleading to,
the factual basis for the plea, the permissible range of sentences he could
receive, and that the Court was not bound by the terms of the plea unless the
judge accepted the plea agreement. See Guilty Plea Colloquy, 5/24/2018, at
1-3, 6-7. Chambers acknowledged that he read and understood the charges
and that his plea counsel explained the elements of the offenses to which he
was pleading guilty, and admitted to the offenses charged against him.
Plea counsel acknowledged Chambers suffered from mental health
issues, but indicated he nevertheless understood the charges against him.
See id., at 5. Chambers affirmed that no one had forced, threatened, or
coerced him into pleading guilty, and no promises had been made to him other
than the proposed agreement with the Commonwealth. See id., at 9. Finally,
Chambers acknowledged he had enough time to discuss the charges with his
plea counsel, he was satisfied with his representation, and plea counsel had
answered any questions that he had concerning the document. See id.
During the oral guilty plea colloquy, Chambers affirmed he was not
under the influence of any drugs or alcohol that would impact his ability to
understand his plea. See N.T., Guilty Plea, 12/9/2019, at 5. Plea counsel again
acknowledged Chambers’ history with mental illness treatment - namely, for
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depression and bipolar disorder - but affirmed that this history did not impact
his competence to “think about his case, to communicate with me, or with the
Court.” Id., at 5-6. Chambers acknowledged he understood the written plea
colloquy, that he had gone over every question with plea counsel, and that he
had sufficient time with plea counsel to ask any questions he had regarding
the rights he was giving up. See id., at 6-7. He further affirmed that no one
had forced or threatened him in any way to induce his plea. See id., at 7.
Additionally, Chambers’ plea counsel stated on the record that he had
met with Chambers at least three or four times prior to the hearing and found
Chambers to be communicative and conversational regarding his cases,
including asking questions about the mechanisms of the legal process and trial
process. See id., at 10. Plea counsel specifically stated he had no doubt that
Chambers was competent to make the decisions he was making. See id. In
accepting the negotiated plea, the court concluded the plea was knowingly,
voluntarily, and intelligently made. See id., at 12.
In light of the comprehensive written and oral plea colloquy, which
Chambers fully and willingly completed, we find no manifest injustice to
support his claim that his plea was in any manner unknowingly, involuntarily,
or unintelligently given. As a result, Chambers’ first issue is waived, and
alternatively without merit.
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In the remaining issue raised in the Anders brief, appellate counsel
raises a potential issue regarding the sentence imposed. Counsel notes
Chambers contends his sentence should be reduced.
Because Chambers pled guilty, we must examine the effect of his guilty
plea upon his sentencing claim. “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).
It is well settled 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)
Here, Chambers negotiated the terms of his guilty plea, including the
specific duration of the sentence with which he now takes issue. After
accepting his plea, the trial court sentenced him to the agreed-upon sentence.
Chambers did not challenge the validity of the plea proceedings or move to
withdraw his plea. Therefore, Chambers received precisely the sentence for
which he bargained, and cannot challenge the discretionary aspects of that
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sentence. See Commonwealth v. Eisenberg, 98 A.3d 1268, 1276 (Pa.
2014) (“When a negotiated plea includes sentencing terms … the defendant’s
knowing and voluntary acceptance of those terms rightly extinguishes the
ability to challenge a sentence the defendant knew was a proper consequence
of his plea”); see also Commonwealth v. Reichle, 589 A.2d 1140, 1141
(Pa. Super. 1991) (dismissing Appellant’s appeal of discretionary aspects of
sentence where she received precisely what she was promised under the
terms of her negotiated plea agreement); Commonwealth v. Baney, 860
A.2d 127, 131 (Pa. Super. 2004) (finding an appellant may not challenge the
discretionary aspects of his sentence when his negotiated plea included the
terms of his sentence). Accordingly, Chambers is not entitled to relief on a
discretionary aspects claim.
As far as Chambers’s attempts to raise a challenge to the legality of his
sentence, although the issue would be properly before us, we find this claim
without merit.
Chambers implied in his PCRA petition that he was illegally sentenced
under the two-strike mandatory minimum statute. See 42 Pa.C.S.A. § 9714.
As noted by plea counsel in his Finley no-merit letter, it would appear this
claim is premised on the belief that his sentence is illegal in light of the
Supreme Court of the United States’s holding in Alleyne v. United States,
570 U.S. 99 (2013) (holding that “facts that increase mandatory minimum
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sentences must be submitted to the jury” and found beyond a reasonable
doubt).
While Chambers’s negotiated sentence was premised on the mandatory
minimum sentence under Section 9714, Chambers is incorrect that that
provision is unconstitutional under Alleyne. Mandatory minimum sentences
predicated on prior convictions are an exception to the rule announced in
Alleyne. See id., at 111 n.1.
As this Court has recognized, the mandatory minimum sentences set
forth in section 9714 are predicated on prior convictions and, thus, that
provision is not unconstitutional under Alleyne. See Commonwealth v.
Bragg, 133 A.3d 328, 333 (Pa. Super. 2016) (recognizing that 42 Pa.C.S. §
9714 “is not unconstitutional under Alleyne as it provides for mandatory
sentences based on prior convictions”), aff'd, Commonwealth v. Bragg, 169
A.3d 1024 (Pa. 2017) (per curiam order). Thus, Chambers’ challenge to the
legality of his sentence is meritless.
After an independent review of the record, we note that Chambers could
potentially raise a claim of ineffective assistance of plea counsel, as he raised
this matter in his pro se PCRA petition, and alludes to such a claim in his
response to the Ander’s brief. Such a claim, however, could only properly be
brought on collateral review.
“Our Supreme Court has made clear that ineffectiveness claims are not
to be raised in the first instance on direct appeal but must await collateral
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review.” Commonwealth v. Crosby, 844 A.2d 1271, 1271-1272 (Pa. Super.
2004). An exception is made where the trial court has held a hearing on a
claim of trial counsel ineffectiveness and the record has been fully developed
on that issue. In that case, the Supreme Court has held it is appropriate for
this Court to review an ineffectiveness claim on direct appeal. See id., at
1272.
Here, the trial court has not held a hearing on the issue and the record
has not been developed at all on this issue. Therefore, we do not have a record
upon which we can review an ineffectiveness claim. Accordingly, a claim
regarding plea counsel ineffectiveness would be dismissed without prejudice.
Chambers can raise this claim on collateral review where the PCRA court will
be in a position to hold an evidentiary hearing on the claim, if necessary.
Having reviewed the issues raised in counsel’s Anders brief, and after
conducting our own independent review of the record, we agree with counsel
that the within appeal is wholly frivolous.3 As such, we affirm the judgment
of sentence and grant counsel leave to withdraw.
Judgement of sentence affirmed. Petition for leave to withdraw granted.
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3We note our independent review of the record did not reveal any additional
non-frivolous issues for appeal.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/18/20
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