J-S54036-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TEONIA TERRI KIMBRO :
:
Appellant : No. 326 WDA 2017
Appeal from the Judgment of Sentence January 24, 2017
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0002723-2015
BEFORE: OTT, MOULTON, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 21, 2017
Appellant, Teonia Terri Kimbro, appeals from the judgment of sentence
entered in the Erie County Court of Common Pleas. Her attorney, Jessica A.
Fiscus, Esq. (“Counsel”), has filed an Anders1 petition for leave to withdraw.
Counsel identifies the following issues on appeal: (1) whether Appellant
entered a knowing, voluntary and intelligent plea; and (2) whether the trial
court abused its discretion in its sentence. We grant Counsel’s petition to
withdraw and affirm.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
Anders v. California, 386 U.S. 738 (1967).
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On January 24, 2017, Appellant entered a guilty plea to one count of
third degree murder2 and one count of burglary.3 N.T., 1/24/17, at 4. The
Commonwealth agreed to recommend a sentence of thirty to sixty years’
imprisonment. Id. The court imposed the agreed upon sentence. Id. at
12-13. Appellant signed a “Statement of Understanding of Rights Prior to
Guilty/No Contest Plea” and an “Acknowledgement of Post Sentencing and
Appellate Rights.” Appellant’s plea counsel did not file a post-sentence
motion.4 Present counsel filed a timely notice of appeal. Counsel filed an
Anders petition and brief with this Court.
____________________________________________
2
18 Pa.C.S. § 2502(c).
3
18 Pa.C.S. § 3502(a)(1).
4
Appellant filed an untimely pro se post-sentence letter with the court on
February 8, 2017, which was forwarded to Counsel. We note that
[p]ursuant to our Rules of Appellate procedure and
decisional law, this Court will not review the pro se filings
of a counseled appellant. Commonwealth v. Nischan,
928 A.2d 349, 355 (Pa. Super. 2007) (noting that an
appellant’s pro se filings while represented by counsel are
legal nullities) [ ]; Commonwealth v. Ellis, [ ] 626 A.2d
1137, 1140–41 ([Pa.] 1993) (same). Rule 3304 of the
Pennsylvania Rules of Appellate procedure provides as
follows:
Rule 3304. Hybrid Representation
Where a litigant is represented by an attorney before
the Court and the litigant submits for filing a petition,
motion, brief or any other type of pleading in the
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Counsel identifies the following issues in the Anders brief:
1. Did Appellant enter a knowing, voluntary and intelligent
plea?
2. Did the trial court commit an abuse of discretion when it
imposed Appellant’s sentence?
Anders Brief at 8.5
“When faced with a purported Anders brief, this Court may not review
the merits of any possible underlying issues without first examining
counsel’s request to withdraw.” Commonwealth v. Wimbush, 951 A.2d
379, 382 (Pa. Super. 2008) (citation omitted).
Prior to withdrawing as counsel on a direct appeal under
Anders, counsel must file a brief that meets the
requirements established by our Supreme Court in
____________________________________________
matter, it shall not be docketed but forwarded to
counsel of record.
Pa.R.A.P. 3304.
In Ellis, our Supreme Court wrote that “[a] represented
appellant may petition to terminate his representation; he
may, acting pursuant to the rules of criminal procedure,
proceed on his own behalf. Conversely, he may elect to
allow counsel to take his appeal[.]” Ellis, [ ] 626 A.2d at
1141 [ ]. An appellant may not, however, offer pro se
filings while he continues to be represented by counsel.
Id.
Commonwealth v. Glacken, 32 A.3d 750, 752-53 (Pa. Super. 2011).
5
Appellant was ordered to file a Pa.R.A.P. 1925(b) statement of errors
complained of on appeal. Counsel informed the court that she intended to
file an Anders brief with this Court, and therefore did not file a Rule 1925(b)
statement. See Pa.R.A.P. 1925(c)(4).
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[Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009)].
The 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 reasons for concluding 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. Counsel also must provide a
copy of the Anders brief to his client. Attending the brief
must be a letter that advises the client of his right 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.”
Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014)
(some citations omitted). If counsel complies with these requirements, “we
will make a full examination of the proceedings in the lower court and render
an independent judgment [as to] whether the appeal is in fact ‘frivolous.’”
Id. at 882 n.7 (citation omitted).
Instantly, Counsel provided a factual summary of the case with
citations to the record. Anders Brief at 9-11. Counsel explained the
relevant law and discussed why Appellant’s claims are meritless, and noted
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that she found nothing in the record that could arguably support the appeal.
Id. at 13-15. In conclusion, Counsel’s Anders brief stated:
Appellant’s counsel did not object to any portion of the
colloquy and/or file a post-sentence motion to withdraw
the plea. The Superior Court cannot review a claim
challenging the validity of the plea on direct appeal where
the defendant either did not object during the plea
colloquy or in a timely-filed post-sentence motion to
withdraw the plea. As this claim is waived, it is wholly
frivolous.
* * *
Appellant now asserts that the trial court failed to
adequately consider her age, her childhood history, her
education, her employment history, her expression of
remorse, and her cooperation.
The undersigned asserts that Appellant’s claim is wholly
frivolous because it was not raised at sentencing or in a
timely, counseled post-sentence motion.
* * *
Additionally, Appellant does not have a viable challenge
to the legality of her sentence. Appellant’s twenty to forty
year sentence for third degree murder did not exceed the
statutory maximum. Appellant’s ten to twenty year
sentence of [sic] burglary, graded as a first degree felony,
does not exceed the statutory maximum.
Anders Brief at 13-15 (citations omitted). Counsel also provided Appellant
with a copy of the Anders brief and a letter advising Appellant of her rights.
Counsel’s Mot. to Withdraw, 12/15/16. In light of the foregoing, we hold
Counsel has complied with the requirements of Santiago. See Orellana,
86 A.3d at 879-80. Appellant has not filed a pro se or counseled brief. We
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now examine the record to determine whether the issues on appeal are
wholly frivolous. See id. at 882 n.7.
First, the Anders brief raises the following issue for our review: “Did
Appellant enter a knowing, voluntary and intelligent negotiated guilty plea?”
Anders Brief at 13.
As a prefatory matter, we consider whether the issue is waived.
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. 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, 609–10 (Pa. Super. 2013) (some
citations and quotation marks omitted).
Instantly, the court sentenced Appellant on January 24, 2017.
Appellant did not challenge the voluntariness of her guilty plea during the
guilty plea colloquy or file a motion to withdraw the plea within ten days
after sentencing. Therefore, Appellant waived her challenge to the validity
of her guilty plea. See id.
Lastly, the Anders brief raises the issue of whether the trial court
abused its discretion when it imposed Appellant’s thirty to sixty year
sentence. Appellant avers “the trial court failed to adequately consider her
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age, her childhood history, her education, her employment history, her
expression of remorse, and her cooperation.” Anders Brief at 14.
Initially, we consider whether Appellant has waived any challenge to
the discretionary aspect of her sentence. In Lincoln, this Court opined:
“Settled Pennsylvania law makes clear that by entering a guilty plea, the
defendant waives his right to challenge on direct appeal all nonjurisdictional
defects except the legality of the sentence and the validity of the plea.”
Lincoln, 72 A.3d at 609. ”Where 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.” Commonwealth v. Reichle, 589 A.2d 1140, 1141 (Pa. Super.
1991); see also Commonwealth v. Baney, 860 A.2d 127, 131 (Pa. Super.
2004) (holding a defendant “having entered a valid negotiated guilty plea, . .
. cannot challenge the discretionary aspects of his sentence”). We have long
recognized
[i]f 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.
Reichle, 589 A.2d at 1141 (citations and quotation marks omitted).
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Appellant entered a negotiated guilty plea that included a negotiated
sentence, and the court accepted the plea and imposed the negotiated
sentence. See Baney, 860 A.2d at 131; Reichle, 589 A.2d at 1141.
Therefore, she waived any challenge to the discretionary aspect of her
sentence and her challenge would not be cognizable in this appeal. See
Lincoln, 72 A.3d at 609; Baney, 860 A.2d at 131.
A review of the record reveals no other meritorious issue that could
provide relief.
Judgment of sentence affirmed. Counsel’s petition to withdraw
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/21/2017
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