J-S48032-20 & J-S48033-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LAMARK DEANDRE WALKER, JR. :
:
Appellant : No. 1321 EDA 2020
Appeal from the Judgment of Sentence Entered February 13, 2020
In the Court of Common Pleas of Carbon County Criminal Division at
No(s): CP-13-CR-0000221-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LAMARK DEANDRE WALKER, JR. :
:
Appellant : No. 1322 EDA 2020
Appeal from the Judgment of Sentence Entered February 13, 2020
In the Court of Common Pleas of Carbon County Criminal Division at
No(s): CP-13-CR-0000222-2019
BEFORE: KUNSELMAN, J., KING, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED NOVEMBER 17, 2020
We address together these two, related appeals taken by Lamark
Deandre Walker, Jr.1 (Appellant) from the judgments of sentence entered in
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1 The original captions for these appeals were based on the caption set forth
in Appellant’s notices of appeal, which identified Appellant as “Lamark
Walker.” However, the captions in the trial dockets below state “Lamark
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the Carbon County Court of Common Pleas following his negotiated guilty
pleas under docket numbers CP-13-CR-0000221-2019 (Docket 221) and CP-
13-CR-0000222-2019 (Docket 222). Appellant’s court-appointed counsel,
Matthew Mottola, Esquire (Plea Counsel), has filed a petition to withdraw from
representation and a brief pursuant to Anders v. California, 386 U.S. 738
(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We
grant Plea Counsel’s petitions to withdraw, and affirm Appellant’s judgments
of sentence.
The record reflects on August 12, 2019, Appellant entered into a
stipulated/negotiated guilty plea under two separate dockets, Docket 221 and
Docket 222, which involved two different victims. N.T., Guilty Plea H’rg,
8/12/19, at 3. At Docket 221, Appellant pleaded guilty to statutory sexual
assault and, at Docket 222, indecent assault of an individual less than 16 years
old.2 Id. Both victims were 13 years old, and Appellant was 17 years old, at
the time of the offenses. Trial Ct. Op., 4/15/20, at 2. Pursuant to the
stipulation, Appellant agreed to an aggregate sentence of 48 to 96 months’
incarceration, but the trial court deferred sentencing so Appellant could
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Deandre Walker, Jr.” We have thus amended the captions in these appeals to
conform to those in the trial court. See Pa.R.A.P. 904(b)(1) (“The parties
shall be stated in the caption as they appeared on the record of the trial court
at the time the appeal was taken.”).
2 18 Pa.C.S. §§ 3122.1(a)(1), 3126(a)(8).
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undergo a presentence investigation report and a sexual offender’s evaluation.
Id. at 4, 13.
During this plea hearing, the trial court stated Appellant seemed “less
than enthusiastic.” N.T., Guilty Plea H’rg, at 3. The trial court emphasized to
Appellant:
. . . I don’t know if it’s just you don’t want to plead guilty or if
you are reconsidering your decision to plead guilty?
* * *
Well, I want to make sure you know what you are really
doing and your attorney wants to make sure you know what you
are really doing and the Commonwealth wants to make sure you
know what you are really doing. These are serious offenses and
you are a young individual. . . . I’ve told you what the offenses
are that you are pleading guilty to. I’m going to be going through
with you in a moment to make sure that you fully understand what
you are doing but if you want to talk to your attorney any further,
I’m not trying to talk you into or talk you out of a plea. I just want
to make sure because you seemed to indicate a moment ago that
you weren’t clear that you wanted to make a decision. So are you
okay or do you need some additional time with your attorney?
Id. at 3-4. Appellant responded, “I’m good.” Id. The trial court then
explained the charges Appellant was pleading guilty to at each docket and the
Commonwealth explained the underlying facts. Id. at 6, 8. The trial court
asked Appellant numerous times if he understood and admitted to those facts,
to which Appellant responded each time, “Yes.” Id. at 6-7, 8-9. Appellant
then completed a written guilty plea colloquy form. Id. at 10; see Written
Guilty Plea Colloquy Form.
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On February 13, 2020, the trial court sentenced Appellant to the
stipulated, aggregate sentence of 48 to 96 months’ incarceration. During this
hearing, the trial court again explained to Appellant what he had pleaded to
and what his sentence would be at each docket.3 When asked if he
understood, Appellant informed the trial court that his “mind drifts off.” N.T.,
Sentencing H’rg, 2/13/20, at 24. The trial court explained to Appellant, “Are
you able to concentrate, to pay attention, to understand what’s going on here
today, or can you not do so? Because I don’t want to have an issue of your
competency be raised on appeal.” Id. at 25. Appellant responded, “I
understand.” Id. The trial court then explained to Appellant his appellate
rights. Id. at 47-48. The trial court did not require Appellant to register as a
sex offender pursuant to Commonwealth v. Haines, 222 A.3d 756 (Pa.
Super. 2019) (holding application of SORNA sex offender registration to a
defendant who committed their crime as a juvenile, but convicted as an adult,
was unconstitutional). Id. at 50-51. Appellant did not file a post-sentence
motion.
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3 The trial court sentenced Appellant at Docket 221 to a period of incarceration
of 36 to 72 months. At Docket 222, the trial court sentenced Appellant to 1
to 2 years’ incarceration to run consecutive to Docket 221, for an aggregate
sentence of 48 to 96 months’. N.T., Sentencing H’rg, at 26.
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On February 28, 2020, Appellant filed two separate notices of appeals
at each docket.4 On March 4th, the trial court ordered Appellant to file a
concise statement of matters complained of on appeal pursuant to Pa.R.A.P.
1925(b). Plea Counsel filed a statement of intent to file an Anders brief under
each docket in compliance with Pa.R.A.P. 1925(c)(4). On August 21, 2020,
Plea Counsel filed two petitions to withdraw from representation and attached
a letter to Appellant explaining his right to retain new counsel or proceed pro
se.
Preliminarily, we must address Plea Counsel’s petitions to withdraw and
the accompanying Anders briefs, both alleging these appeals are frivolous.
“When 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. Daniels, 999 A.2d 590, 593 (Pa. Super. 2010) (citation
omitted). In order to withdraw pursuant to Anders, “counsel must file a brief
that meets the requirements established by our Supreme Court in” Santiago,
978 A.2d 349. Commonwealth v. Harden, 103 A.3d 107, 110 (Pa. Super.
2014) (citation omitted). Specifically, counsel’s Anders brief must:
(1) provide a summary of the procedural history and facts, with
citations to the record;
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4 Appellant has thus complied with Pa.R.A.P. 341(a) (“[A]n appeal may be
taken as of right from any final order of a government unit or trial court.”),
and Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018) (“[W]hen a single
order resolves issues arising on more than one lower court docket, separate
notices of appeal must be filed.”).
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(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. (citation omitted).
“Counsel also must provide a copy of the Anders brief to his client.”
Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014). The brief
must be accompanied by a letter that advises the client of the option 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.” Id. “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) (citation omitted).
Instantly, Plea Counsel has satisfied the technical requirements of
Anders and Santiago. In his Anders brief, Plea Counsel has identified the
pertinent factual and procedural history and made citations to the record.
Anders Brief at 2-6. After making a conscientious review of the record and
applicable law, Plea Counsel concludes the appeal is frivolous. Id. at 16. Plea
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Counsel has also attached to his petition a letter to Appellant that meets the
notice requirements of Orellana, supra.5 Nonetheless, Plea Counsel
addresses four claims that could arguably support an appeal: (1) the validity
of Appellant’s guilty pleas; (2) the jurisdiction of the trial court; (3) the
discretionary aspects of Appellant’s sentence; and (4) the legality of his
sentence. Accordingly, we proceed to conduct an independent review of the
record to determine whether this appeal is wholly frivolous.
In the Anders brief, Plea Counsel addresses whether Appellant’s pleas
were unknowing, involuntary, and unintelligent. Anders Brief at 7-10. This
Court has stated:
Our law is clear that, to be valid, a guilty plea must be knowingly,
voluntarily and intelligently entered. There is no absolute right to
withdraw a guilty plea, and the decision as to whether to allow a
defendant to do so is a matter within the sound discretion of the
trial court. To withdraw a plea after sentencing, a defendant must
make a showing of prejudice amounting to “manifest injustice.”
“A plea rises to the level of manifest injustice when it was entered
into involuntarily, unknowingly, or unintelligently.” . . .
Commonwealth v. Pollard, 832 A.2d 517, 522 (Pa. Super. 2003) (citations
omitted).
In order for a guilty plea to be constitutionally valid, the
guilty plea colloquy must affirmatively show that the
defendant understood what the plea connoted and its
consequences. This determination is to be made by
examining the totality of the circumstances surrounding
the entry of the plea. [A] plea of guilty will not be
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5Appellant has not filed a response to Plea Counsel’s letter, the Anders brief,
or the petition to withdraw.
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deemed invalid if the circumstances surrounding the
entry of the plea disclose that the defendant had a full
understanding of the nature and consequences of his
plea and that he knowingly and voluntarily decided to
enter the plea.
“Our law presumes that a defendant who enters a guilty plea was
aware of what he was doing. He bears the burden of proving
otherwise.” “[W]here the record clearly demonstrates that a
guilty plea colloquy was conducted, during which it became
evident that the defendant understood the nature of the charges
against him, the voluntariness of the plea is established.” Thus,
[a] court accepting a defendant’s guilty plea is required
to conduct an on-the-record inquiry during the plea
colloquy. The colloquy must inquire into the following
areas:
(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?
Commonwealth v. Rush, 909 A.2d 805, 808-09 (Pa. Super. 2006) (citations
omitted).
Pennsylvania Rule of Appellate Procedure 302(a) provides, “Issues not
raised in the lower court are waived and cannot be raised for the first time on
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appeal.” Pa.R.A.P. 302(a). Further, “[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. Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i). Failure to employ either
measure results in waiver.” Commonwealth. v. Lincoln, 72 A.3d 606, 609-
10 (Pa. Super. 2013).
At no point in the proceedings before the trial court did Appellant
challenge the voluntariness of his plea or seek to withdraw it. Appellant raised
no such issue in a post-sentence motion, but instead, raises it for the first
time in Plea Counsel’s Anders brief. Thus, this issue is waived. See Pa.R.A.P.
302(a); Lincoln, 72 A.3d at 609-10.
The next issue addressed in the Anders brief challenges the jurisdiction
of the trial court to accept the pleas entered, where Appellant was a juvenile
when he committed the offenses. Anders Brief at 11.
With respect to an adult criminal court’s jurisdiction over a juvenile’s
offenses, this Court has explained generally:
Pursuant to 42 Pa.C.S.[ ] § 6322(a), when a juvenile has
committed a crime, which includes . . . any of the . . . offenses listed
under paragraph (2)(ii) or (iii) of the definition of “delinquent act” in 42
Pa.C.S.[ ] § 6302, the criminal division of the Court of Common Pleas is
vested with jurisdiction. Likewise, 42 Pa.C.S.[ ] § 6355(e) explains that
charges of murder, or any of the other offenses listed under paragraph
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(2)(ii) or (iii) of the definition of “delinquent act” in 42 Pa.C.S.[ ] § 6302,
requires that the offense be prosecuted in the criminal division.[6] . . .
Commonwealth v. Sanders, 814 A.2d 1248, 1250 (Pa. Super. 2003). See
also Commonwealth v. Cotto, 753 A.2d 217, 219 (Pa. 2000) (“[T]he
Juvenile Act vests original jurisdiction in the criminal courts for specified
violent felonies, e.g., rape . . . , committed by minors aged fifteen or older
who . . . were previously adjudicated delinquent for such crimes.”).
Section 6302 defines a “delinquent act,” in relevant part, as follows:
“Delinquent act.”
(1) The term means an act designated a crime under the
law of this Commonwealth . . . .
(2) The term shall not include:
* * *
(iii) Any of the following prohibited conduct where the
child was 15 years of age or older at the time of the
alleged conduct and has been previously adjudicated
delinquent of any of the following prohibited conduct
which, if committed by an adult, would be classified as:
(A) Rape as defined in 18 Pa.C.S. § 3121.
* * *
(E) Aggravated indecent assault as defined in 18
Pa.C.S. § 3125. . . .
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6These statutory sections are a part of the Juvenile Act, 42 Pa.C.S. §§ 6301-
6375.
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42 Pa.C.S. § 6302(1), (2)(iii)(A), (E) (emphasis added).
Our review of the record indicates Appellant was charged with
aggravated indecent assault at both Docket 221 and Docket 222, he was 17
years old at the time of these incidents, and had a prior adjudication for rape,7
which was detailed in the pre-sentence investigation report. See N.T.,
2/13/20, at 5, 43. Thus, the trial court had jurisdiction to accept Appellant’s
pleas. See 42 Pa.C.S. §§ 6302(2)(iii)(A), (E); Cotto, 753 A.2d at 219.
Lastly, Plea Counsel addresses challenges to the discretionary aspects
and legality of Appellant’s sentence. “A challenge to the discretionary aspects
of sentencing is not automatically reviewable as a matter of right.”
Commonwealth v. Grays, 167 A.3d 793, 815 (Pa. Super. 2017) (citation
omitted). Before we can reach the merits of a discretionary aspects challenge,
[w]e conduct a four part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence, see
[Pa.R.Crim.P. 720]; (3) whether appellant’s brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
question that the sentence appealed from is not appropriate under
the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Id. at 815-16 (citation omitted).
Here, Appellant filed a timely notice of appeal, satisfying the first prong
of the test. However, he did not file any post-sentence motions. Further, a
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7 18 Pa.C.S. § 3121.
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review of the sentencing transcript reveals that the issue was not properly
preserved at sentencing. As this Court reiterated in Commonwealth v.
Griffin, 65 A.3d 932 (Pa. Super. 2013), “[i]ssues challenging the discretionary
aspects of a sentence must be raised in a post-sentence motion or by
presenting the claim to the trial court during the sentencing proceedings.
Absent such efforts, an objection to a discretionary aspect of a sentence is
waived.” Id. at 936 (citation and emphasis omitted). Because Appellant
failed to preserve a discretionary aspects of sentence issue either in a post-
sentence motion or at the time of sentencing, he waived his discretionary
aspects of sentencing issue on appeal.8
Moreover, even if Appellant wanted to challenge the legality of his
sentence, a claim that cannot be waived, he would be entitled to no relief. As
the trial court opined:
The sentences imposed on [Appellant] on February 13,
2020, were in accordance with the stipulations entered in each
case, were within the standard guideline range, and were
supported by a pre[-]sentence investigation report dated
February 10, 2020 and made part of the record at sentencing. A
sexual offender’s assessment by the State Sexual Offender’s
Assessment Board was completed and concluded [Appellant] was
a sexually violent predator; however, in accordance with the
Pennsylvania Superior Court’s decision in . . . Haines, 222 A.3d
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8 We note although Plea Counsel did not include a Rule 2119(f) statement in
his Anders brief, we do not find this precludes our review. See
Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 184 (Pa. Super. 2016)
(holding counsel’s failure to submit Rule 2119(f) statement in Anders brief
does not preclude review of whether appellant’s issue is frivolous). Further,
the Commonwealth did not object to this defect in its brief.
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756[,] relied upon by [Appellant] in a [pre-sentence] motion
requesting that [Appellant] not be required to register as a Tier II
sexual offender pursuant to the Sex Offender Registration and
Notification Act (“SORNA”), 42 Pa.C.S.[ ] § 9799.10 - 9799.75,
which motion was not opposed by the Commonwealth since
[Appellant] was a juvenile at the time of the offenses, [Appellant]
was not required to comply with the registration requirements of
SORNA.
Trial Ct. Op. at 2-3 (citation omitted).
The record supports Plea Counsel’s conclusion that these appeals are
frivolous. Moreover, our independent review of the entire record reveals no
additional non-frivolous issues. Consequently, we grant Plea Counsel’s
petitions to withdraw, and we affirm the judgments of sentence.
Petitions to withdraw granted. Judgments of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/17/2020
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