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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
CHRISTOPHER JOHN LUGOWSKI, : No. 3549 EDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, October 12, 2016,
in the Court of Common Pleas of Delaware County
Criminal Division at No. CP-23-CR-0007169-2015
BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 16, 2017
Christopher John Lugowski appeals from the October 12, 2016
judgment of sentence after he pled guilty to conspiracy to commit murder
and conspiracy to commit aggravated assault.1 The trial court sentenced
him to an aggregate term of 10 to 20 years’ incarceration. Michael J. Harper
(“Attorney Harper”), appellant’s counsel, has filed a petition to withdraw,
alleging that the direct appeal is wholly frivolous, accompanied by an
Anders brief.2 We grant counsel’s withdrawal petition and affirm the
judgment of sentence.
1
18 Pa.C.S.A. § 903.
2
See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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The trial court provided the following factual history set forth in the
affidavit of probable cause and stipulated to by the parties:
On October 16, 2016 [appellant], his
co-defendant Wydell Bronson and a female
companion were at the Waterford Inn in Upper
Darby, PA. Four other individuals were also at the
bar. One of these individuals advised the bartender
that she had been in a physical altercation with
[appellant] and Bronson previously. The bartender
told [appellant] and his companions to leave the bar.
They left at about 2:00 a.m. and returned at
4:00 a.m. When two of the four individuals left the
bar they were met by gunshots. They saw Bronson
shooting from bushes that were near the bar . . . and
ran back inside. Two of the four individuals were not
harmed. One victim was shot in the abdomen as she
stood inside the bar and another victim was shot in
the left knee as he ran away from the bar and
Bronson continued to fire. [Appellant] gave a
statement admitting his involvement in the shooting.
[Appellant] filed a post sentence motion
pro se. On November 14, 2016, the motion was
denied and on the same day counsel filed a Notice of
Appeal. Trial counsel moved to withdraw her
representation. That motion was granted and
appellate counsel was appointed. On December 6,
2016 appellate counsel filed a “Statement of Matters
Complained of on Appeal,” wherein he stated his
intention to file an Anders brief in the Superior
Court.
Trial court opinion, 12/7/16 at 1-2.
Appellant raises one issue for this court’s review: “Whether
[appellant] entered a knowing, voluntary and intelligent guilty plea?”
(Appellant’s brief at 1.)
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On January 13, 2017, Attorney Harper filed in this court a petition to
withdraw as counsel and an Anders brief, wherein Attorney Harper states
that there are no non-frivolous issues preserved for our review on direct
appeal.
A request by appointed counsel to withdraw pursuant
to Anders and Santiago gives rise to certain
requirements and obligations, for both appointed
counsel and this Court. Commonwealth v.
Flowers, 113 A.3d 1246, 1247-1248 (Pa.Super.
2015).
These requirements and the significant
protection they provide to an Anders
appellant arise because a criminal
defendant has a constitutional right to a
direct appeal and to counsel on that
appeal. Commonwealth v. Woods,
939 A.2d 896, 898 (Pa.Super. 2007).
This Court has summarized these
requirements as follows:
Direct appeal counsel seeking
to withdraw under Anders
must file a petition averring
that, after a conscientious
examination of the record,
counsel finds the appeal to be
wholly frivolous. Counsel
must also file an Anders brief
setting forth issues that might
arguably support the appeal
along with any other issues
necessary for the effective
appellate presentation
thereof.
Anders counsel must also
provide a copy of the Anders
petition and brief to the
appellant, advising the
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appellant of the right to retain
new counsel, proceed pro se
or raise additional points
worthy of the Court’s
attention.
Woods, 939 A.2d at 898 (citations
omitted).
There are also requirements as to the
precise content of an Anders brief:
The Anders brief that
accompanies court-appointed
counsel’s petition to withdraw
. . . 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, 978 A.2d at 361.
Id. at 1248. If this Court determines that appointed
counsel has met these obligations, it is then our
responsibility “to make a full examination of the
proceedings and make an independent judgment to
decide whether the appeal is in fact wholly frivolous.”
Id. at 1248. In so doing, we review not only the
issues identified by appointed counsel in the Anders
brief, but examine all of the proceedings to “make
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certain that appointed counsel has not overlooked
the existence of potentially non-frivolous issues.”
Id.
Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).
Our review of Attorney Harper’s application to withdraw, supporting
documentation, and Anders brief reveals that he has complied with all of
the foregoing requirements. We note that counsel also furnished a copy of
the brief to appellant; advised him of his right to retain new counsel,
proceed pro se, and/or raise any additional points that he deems worthy of
this court’s attention; and attached to the Anders petition a copy of the
letter sent to appellant as required under Commonwealth v. Millisock,
873 A.2d 748, 751 (Pa.Super. 2005). See Commonwealth v. Daniels,
999 A.2d 590, 594 (Pa.Super. 2010) (“While the Supreme Court in
Santiago set forth the new requirements for an Anders brief, which are
quoted above, the holding did not abrogate the notice requirements set forth
in Millisock that remain binding legal precedent.”). As Attorney Harper has
complied with all of the requirements set forth above, we conclude that
counsel has satisfied the procedural requirements of Anders.
Once counsel has met his obligations, “it then becomes the
responsibility of the reviewing court to make a full examination of the
proceedings and make an independent judgment to decide whether the
appeal is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5. Thus,
we now turn to the merits of appellant’s appeal.
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Appellant asserts that he did not enter a knowing, voluntary, and
intelligent guilty plea when he agreed to enter a negotiated plea of guilty.
This court notes that appellant failed to raise the issue of the validity
of his plea either before the trial court in open court or in a post-sentence
motion. Appellant’s post-sentence motion did not address the issue of his
plea. See Pa.R.Crim.P. 720(B); Commonwealth v. D’Collanfield, 805
A.2d 1244 (Pa.Super. 2002). Accordingly, this issue is waived for purposes
of appeal. This court agrees with Attorney Harper that this issue concerning
his plea is frivolous.3
Additionally, our independent review of the entire record has not
disclosed any potentially non-frivolous issues. Consequently, we grant
counsel’s petition to withdraw, and we affirm the judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/16/2017
3
Even if appellant preserved this issue, this court would agree with
Attorney Harper that the appeal was frivolous because appellant indicated
through an oral and written plea colloquy that he made a knowing,
voluntary, and intelligent guilty plea.
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Com. v. Lugowski, C.
Combined Opinion