J-S75012-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JERMAINE THOMPSON
Appellant No. 870 EDA 2016
Appeal from the Judgment of Sentence February 22, 2016
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0004572-2015
BEFORE: BOWES, MOULTON AND MUSMANNO JJ.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 30, 2016
Jermaine Thompson appeals from the judgment of sentence of a fine
of $200, plus costs, imposed by the trial court after he pled guilty to
possession of a small amount of marijuana. Counsel 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 affirm and grant counsel’s petition to withdraw.
We rely on the facts from the affidavit of probable cause supporting
the complaint as those facts were incorporated into the guilty plea
proceedings in support of the factual basis for Appellant’s plea. At
approximately 12:31 a.m. on May 9, 2015, Officer John Esher of the
Haverford Township Police Department received a radio call to investigate a
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running silver Honda parked in front of a certain residence. Upon arriving at
that location, Officer Esher observed a silver Honda, occupied by Appellant
and one other individual, parked in front, and approached the vehicle and
knocked on the window. As Appellant opened his window, a plume of smoke
bellowed out of it. Officer Esher immediately recognized the odor of the
smoke as burnt marijuana. When the officer asked Appellant what they
were doing, Appellant replied, “smoking.” Affidavit of Probable Cause,
5/12/15, at 1. Officer Esher directed Appellant to exit the vehicle and asked
him whether there were any drugs or weapons in the car. Appellant
answered in the affirmative, and, upon inspection, the officer discovered a
small amount of marijuana within the vehicle.
Based on the foregoing, Appellant was charged with possession of a
small amount of marijuana. On February 22, 2016, Appellant entered a
negotiated guilty plea to the offense. The trial court conducted the
mandated colloquy and approved the plea arrangement. Appellant’s written
guilty plea statement was also entered into the record. The court accepted
Appellant’s guilty plea and sentenced him, in accordance with the negotiated
terms, to a $200 fine plus costs. Thereafter, Appellant filed a timely notice
of appeal.1 In lieu of a Rule 1925(b) statement of errors complained of on
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1
The notice of appeal was filed by counsel, who indicated that Appellant had
requested that an appeal be pursued.
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appeal, counsel filed a statement of intent to file an Anders brief in
accordance with Pa.R.C.P. 1925(c)(4). The trial court then authored its Rule
1925(a) opinion.
Appellant’s counsel now files a petition to withdraw and an
accompanying Anders brief, asserting there are no non-frivolous issues to
be reviewed. In the Anders brief, counsel set forth the following as the
issue arguably supporting an appeal: “Whether the Lower Court should have
explored [Appellant’s] eligibility for the Accelerated Rehabilitative Disposition
[(“ARD”)] program during the guilty plea colloquy?” Anders brief at 1.
Since we do not address the merits of issues raised on appeal without
first reviewing a request to withdraw, we evaluate counsel’s petition to
withdraw at the outset. Commonwealth v. Cartrette, 83 A.3d 1030
(Pa.Super. 2013) (en banc). Counsel must meet three procedural
requirements in order to withdraw: 1) petition for leave to withdraw and
state that, after making a conscientious examination of the record, counsel
has concluded that the appeal is frivolous; 2) provide a copy of the Anders
brief to the defendant; and 3) inform the defendant that he has the right to
retain private counsel or raise, pro se, additional arguments that the
defendant deems worthy of the court’s attention. Id.
Counsel’s petition to withdraw provides that he made a thorough
review of the record and concluded that the appeal is wholly frivolous.
Counsel sent Appellant copies of the petition to withdraw and the Anders
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brief, and instructed him that he had the right to retain new counsel. In that
communication, counsel also expressed that Appellant could proceed pro se
and raise any issues he believed this Court should consider. Counsel mailed
these documents to Appellant at his last-known address, however, they were
returned with the notation, “Attempted. Not Known.” Letter to Superior
Court Prothonotary, 8/12/16, at unnumbered 1. As Appellant failed to notify
the Court or his attorney as to any changes in his address during the
pendency of this appeal, we find counsel has complied substantially with the
procedural requirements of Anders.
We now consider whether counsel’s Anders brief meets the
substantive elements of Santiago. Pursuant to Santiago, an Anders brief
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.
Santiago, supra at 361.
Counsel provided the procedural posture and relevant factual
background with citations to the record. He presented argument tending to
support the appeal. Nevertheless, counsel concludes that Appellant’s appeal
is frivolous, setting forth reasons in support of that position, and case law
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that holds this issue would not entitled him to relief. Thus, counsel has
complied with the requirements of Anders/Santiago.
We now proceed to examine the issue presented by counsel in the
Anders brief. Counsel styles this claim as contending Appellant did not
enter his guilty plea knowingly, voluntarily, and intelligently. This assertion
concerns an exchange which occurred during the plea colloquy. After the
plea judge inquired whether Appellant had any additional information to
offer the court, Appellant informed the court that certain court notices were
being sent to the wrong address. The following discussion ensued:
Appellant: Yeah. And I guess they’ve been mailing it out to
Townsend, Delaware. So that’s why I never was aware of the
Court date, because I called my Public Defender, Tom, I guess.
He said that I was – I called him like a couple of months ago. I
was asking him about the ARD Program. And he was like, have
they sent the letter to you? I was like, no, I haven’t gotten the
letter. So he said, wait for a letter. But apparently, it’s being
going to Townsend Delaware, which I never lived at.
Appellant’s Counsel: Your Honor, I do have him missing – I
have no shows in here, 11/18, 12/16, 1/20, and then I guess I
was assigned to it on February 1st. I did explain to [Appellant]
that I’d be willing to go and see if they would consider him for
ARD, because I think there might have been some mix-up with
the address, but he indicated to me that he would rather take
the plea with no probation and fines.
The Court: All right. Thank you. As it then relates to Count
One, Personal Use of Marijuana, an Ungraded Misdemeanor,
pursuant to counsel’s agreement, [Appellant] will pay a $200
fine, $100 assessment, laboratory fees incorporated with the
cost of prosecution. Any questions, sir?
Appellant: No, sir.
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N.T. Plea Colloquy, 2/22/16, at 7-8. It is well-settled that Pennsylvania law
requires that a guilty plea be made knowingly, voluntarily, and intelligently.
Commonwealth v. Rush, 909 A.2d 805 (Pa.Super. 2006). In order to
ascertain whether a guilty plea is constitutionally valid we evaluate such a
plea utilizing the following guidelines:
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 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.
Id. at 808 (citation omitted).
As an issue of arguable merit, Appellant’s counsel asserts the court
should have inquired in more detail as to whether Appellant understood the
impact his guilty plea would have on a potential ARD disposition. Thus,
counsel maintains, Appellant’s choice of a guilty plea reflected that he did
not comprehend, pursuant to Rush, supra, “what the plea connoted and its
consequences.” Anders brief at 4.
Herein, when prompted by the court, Appellant did not question the
unavailability of ARD, but rather, acquiesced to counsel’s statement that
Appellant preferred entering a guilty plea without probation to ARD.
Moreover, the court found Appellant’s guilty plea was knowing, intelligent,
and voluntary, and Appellant bears the burden of proving otherwise.
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Commonwealth v. Prendes, 97 A.3d 337, 352 (Pa.Super. 2014).
Notwithstanding the apparent validity of Appellant’s guilty plea, we observe
that Appellant did not object to his guilty plea at the colloquy nor did he file
a timely motion to withdraw the plea. As a result, his challenge to the
validity of his guilty plea is waived. Commonwealth v. Lincoln, 72 A.3d
606, 609-610 (Pa.Super. 2013). Therefore, this issue is wholly frivolous.
After conducting an independent review of the certified record
pursuant to Commonwealth v. Flowers, 113 A.3d 1246 (Pa.Super. 2015),
we find there are no other non-frivolous issues that can be raised in this
appeal.
Petition of Patrick J. Connors, Esquire, to withdraw as counsel is
granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/30/2016
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