Commonwealth v. ReidCommonwealth v. Reid
Appellant Anthony Reid (“Appellant“) appeals from the January 16, 2014 judgment of sentence in the Philadelphia County Court of Common Pleas following his guilty plea convictions for attempted murder,1 assault of a law enforcement officer in the first degree,2 and aggravated assault.3 Appellant‘s counsel has filed an Anders4 brief, together with a petition to withdraw as counsel. We affirm the judgment of sentence and grant counsel‘s petition to withdraw.
The trial court summarized the events underlying Appellant‘s convictions as follows:
On the morning of September 4, 2009, Appellant and his codefendant, Brian Williams (“Williams“), ran out of the Sunoco gas station at 52nd and Spruce Streets in Philadelphia. Officer Julius Cesar observed that the men were armed and carrying a bag of money. Both men jumped into a get-away car and fled the scene. Officer Cesar engaged in a high-speed pursuit of the two defendants through the city. As Appellant was driving, Williams leaned out the passenger window and fired at Officer Cesar‘s vehicle, which struck the car‘s front grille—the officer was not injured. Both men continued to elude police until crashing into a parked car at 63rd and Grays Avenue. At that time, multiple officers converged on the scene. Appellant opened the driver‘s door and opened fire at the officers. The police returned fire, and during the exchange of bullets, Officer Adrian Hospetale was struck in the mouth. Both Appellant and Williams were immediately apprehended. A search of the vehicle revealed two (2) loaded firearms and $100,000 in cash.
Trial Court Pa.R.A.P. 1925(a) Opinion, filed November 24, 2014 (“1925(a) Opinion“), p. 2.
On March 21, 2011, Appellant pleaded guilty to the aforementioned charges. Pursuant to a negotiated plea agreement, on January 16, 2014, the trial court sentenced Apрellant to 10 to 20 years’ incarceration on the attempted murder conviction,5 20 to 40 years’ incarceration on the assault of a law enforcement officer in the first degree conviction6 concurrent to the attempted murder conviction, and 5 to 10 years’ incarceration for the aggravated assault conviction to be served consecutive to the attempted murder and assault of a law enforcement officer in the first dеgree convictions, for an aggregate total of 25 to 50 years’ incarceration.7 On January 24, 2014, Appellant filed a pro se post-trial motion to reconsider sentence that was denied by operation of law on June 11, 2014. Appellant filed a notice of appeal on July 2,
As previously noted, Appellant‘s counsel has filed an application seeking to withdraw from representation pursuant to Anders v. California and its Pennsylvania counterpart, Commonwealth v. Santiago.9 Before addressing the merits of Appellant‘s underlying issue presented, we must first pass on counsel‘s petition to withdraw. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super.2007) (en banc).
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 Santiago. 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 conclusion that thе 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 must also provide the appellant with a copy of the Anders brief, together with a letter that advises the appellant of his or her 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. Nischan, 928 A.2d 349, 353 (Pa.Super.2007). Substantial compliance with these requirements is sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.2007). “After establishing that the antecedent requirements have been met, this Court must then make an independent evaluation of the record to determine whether the appeal is, in fact, wholly frivolous.” Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super.2006).
Instаntly, counsel contemporaneously filed a petition to withdraw as counsel with the Anders brief. The petition states that counsel determined, after communicating with Appellant about the appeal, independently and conscientiously reviewing the record, and conducting appropriate legal research into possible issues, that no non-frivolous issues exist to be raised on appeal. See Petition to Withdraw As Counsel, ¶¶ 8-9. The petition further explains that counsel drafted and filed an Anders brief that included all issues Appellant wished raised on appeal as well as any
As Appellant filed neither a pro se brief nor a counseled brief with new, privately-retained counsel, we review this appeal based on the issues of arguable merit raised in the Anders brief:
[1.] Was [Appellant‘s] negotiated guilty plea knowing, intelligent, and voluntary?
[2.] Was the negotiated sentence imposed upon [Appellant] by the lower court pursuant to the terms of the negotiated guilty plea manifestly exсessive?
[3.] Was the sentence imposed upon [Appellant] illegal under Alleyne v. U.S. [— U.S. —], 133 S.Ct. 2151 [186 L.Ed.2d 314] (2013) insofar as it included mandatory minimum sentences imposed pursuant to
42 Pa.C.S.[ ] §§ 9714 and9719.1 ?[4.] Is [Appellant] entitled to have his sentence vacated due to the fact that the District Attorney‘s Office breached the terms of an agreement with [Appellant]?
[5.] Was [Appellant] denied effective assistance of counsel due to the fact that his privately retained plea counsel failed to file a pre- or post-sentence motion to withdraw [Appellant‘s] negotiated guilty plea?
[6.] Was [Appellant] denied effective assistance of counsel due to the fact that his privately retained plea counsel advised him not to exercise his right of allocution at sentencing?
Appellant‘s Brief, pp. 5-6.
1. Appellant entered a knowing, intelligent and voluntary guilty plea.
Appellant‘s first claim alleges that his plea of guilty was not knowing, intelligent, and voluntary. See Appellant‘s Brief, pp. 17-20. This claim lacks merit.
“A valid plea colloquy must delve into six areas: 1) the nature of the charges, 2) the factual basis of the plea, 3) the right to a jury trial, 4) the presumption of innocence, 5) the sentencing ranges, and 6) the plea court‘s power to deviate from any recommended sentence.” Commonwealth v. Morrison, 878 A.2d 102, 107 (Pa.Super.2005);
Pa.R.Crim.P. 590 , Comment. Additionally, a written plea colloquy that is read, completed and signed by the defendant and made part of the record may serve as the defendant‘s plea colloquy when supрlemented by an oral, on-the-record examination. Morrison, 878 A.2d at 108 (citing Comment toPa.R.Crim.P. 590 ). “[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.” Commonwealth v. Fluharty, 429 Pa.Super. 213, 632 A.2d 312, 315 (1993). “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.” Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa.Super.2003) (internal citatiоn omitted). The entry of a negotiated plea is a “strong indicator” of the voluntariness of the plea. Commonwealth v. Myers, 434 Pa.Super. 221, 642 A.2d 1103, 1106 (1994). Moreover, “[t]he law does not require that [the defendant] be pleased with the outcome of his decision to enter a plea of guilty: All that is required is that [his] decision to plead guilty be knowingly, voluntarily and intelligently made.” Commonwealth v. Anderson, 995 A.2d 1184, 1192 (Pa.Super.2010).
The record reveals Appellant understood the nature of the charges against him and the plea to which he was agreeing, and thаt he voluntarily and intelligently entered his guilty plea. At the outset of the guilty plea hearing, the trial court placed the terms of the agreement on the record.11 See N.T. 3/21/2011, pp. 6-7. Appellant confirmed that he understood the terms of the negotiated agreement. Id. at 7. Thereafter, the trial court conducted a lengthy guilty plea colloquy in which Appellant fully participated. See id. at 8-35. During the guilty plea colloquy, the trial court explained to Appellant his right to а jury trial, his post-guilty plea appellate rights, and the elements and statutory maximum penalty possible for the charges. Id. at 9-21. Appellant indicated he understood. Id. at 10, 13, 21. Additionally, the Commonwealth provided lengthy factual bases for the charges, after which Appellant admitted he was guilty of each crime. Id. at 21-29. Appellant is bound by his statements made during the colloquy. See Commonwealth v. McCauley, 797 A.2d 920, 922 (Pa.Super.2001) (defendant is bound by statements he makes during plea colloquy, and may not assert grounds for withdrawing plea that contradict statements made when he pleaded guilty).
Additionally, defense counsel and Appellant reviewed and completed a written guilty plea colloquy for each docket on which he pleaded guilty, which the trial court reviewed with Appellant and admitted into evidence during the oral colloquy. See N.T. 3/21/2011, pp. 29-31; see also Written Guilty Plea Colloquies. The written colloquies outlined the plea agreement and discussed the charges, the right to a
Our review of the guilty plea hearing transcript and documents reveals that the lower court did not abuse its discretiоn. The record supports the trial court‘s conclusion that Appellant entered his plea knowingly, voluntarily, and intelligently.
2. Appellant waived his discretionary aspects of sentence claim.
Appellant next claims the negotiated sentence imposed upon acceptance of his guilty plea was manifestly excessive. See Appellant‘s Brief, pp. 29-33. This claim raises a challenge to the discretionary aspects of Appellаnt‘s negotiated sentence, and is unreviewable. The trial court imposed the sentence Appellant negotiated with the Commonwealth. Appellant may not now seek discretionary review of that negotiated sentence. See Commonwealth v. O‘Malley, 957 A.2d 1265, 1267 (Pa.Super.2008) (“One who pleads guilty and receives a negotiated sentence may not then seek discretionary review of that sentence.“). This claim fails.
3. The trial court did not impose an illegal sentence under Alleyne.
Appellant next claims his sentence is illegal based on the Supreme Court оf the United States’ decision in Alleyne v. United States12 because it includes certain mandatory minimum sentences. See Appellant‘s Brief, pp. 25-28. Appellant is incorrect.
First, Appellant challenges the application of the 10-year mandatory minimum sentence imposed on his attempted murder conviction. Regarding mandatory minimum sentences for second or subsequent convictions for crimes of violence, the Sentencing Code provides, in relevant part:
(a) Mandatory sentence.—
(1) Any person who is convicted in any court of this Commonwealth of a crime of violence shall, if at the time of the commission of thе current offense the person had previously been convicted of a crime of violence, be sentenced to a minimum sentence of at least ten years of total confinement, notwithstanding any other provision of this title or other statute to the contrary. Upon a second conviction for a crime of violence, the court shall give the person oral and written notice of the penalties under this section for a third convictiоn for a crime of violence. Failure to provide such notice shall not render the offender ineligible to be sentenced under paragraph (2).
In Alleyne, the Supreme Court of the United States held that the Sixth Amendment requires that any fact—other than a prior conviction—that increases a mandatory minimum sentence for an offense must be submitted to the jury and proven beyond a reasonable doubt. Importantly, Alleyne did not overturn prior precedent that prior convictions are sentencing factors and not elements of offenses. Alleyne, 133 S.Ct. at 2160 n. 1; see also Almendarez-Torres v. United States, 523 U.S. 224, 243-44, 118 S.Ct. 1219, 1230-31, 140 L.Ed.2d 350 (1998).
Section 9714 increases mandatory minimum sentences based on prior convictions. See
Here, at his guilty plea hearing, Appellant acknowledged that his cases involved “mandatory sentences [that would] be imposed by the [trial c]ourt[.]” N.T. 3/21/2011, p. 8. At sentencing, the court characterized the instant matter as a “secоnd strike case[,]” without objection from Appellant.13 See N.T. 1/16/2014, pp. 4-6. The trial court then imposed a section 9714 mandatory minimum sentence on the attempted murder conviction. This sentence was legal.
Appellant also challenges the application of the 20-year mandatory minimum sentence imposed on his conviction for assault of a law enforcement officer in the first degree. Regarding sentences for offenses committed against law enforcement officers, the Sentencing Code provides, in relevant part:
(a) Mandatory sentence.—A person convicted of the following offense shall be sentenced to a mandatory term of imprisonment as follows:
18 Pa.C.S. § 2702.1(a) (relating to assault of law enforcement officer)14—not less than 20 years.
This mandatory sentence provision does not implicate Alleyne. Section 9719.1 does not require proof of any additional elements beyond those already required to convict a defendant of assault of a law enforcement officer in the first degree under
For these reasons, the trial court did not impose an illegal sentence.
4. No evidence exists of any agreement breached by the Commonwealth.
Appellant next argues that the Commonwealth induced him to plead guilty with the promise of an alleged, nebulous agreement between the Commonwealth and Appellant, which the Commonwealth subsequently breached. See Appellant‘s Brief, pp. 24-25. This claim lacks merit.22
Appellant appears to argue that he received no benefit for having testified for the Commonwealth in other cases.23 However, nowhere in his brief or filings does Appellant set forth when he made any agreement with the Commonwealth to testify in other cases or the terms of the alleged agreement(s). In fact, Appellant does not even allege the existence of an agreement in the first place. Instead, he simply explains that he tеstified and expresses his dissatisfaction that he did not receive some undefined benefit from the Commonwealth in return. See Motion for Reconsideration/Modification of Sentence, p. 2. Further, the record contains no evidence of such an agreement. The only agreement that appears in the record is
5. Appellant‘s ineffective assistancе of counsel claims must await collateral review.
Appellant‘s final two claims allege trial counsel provided ineffective assistance of counsel by (1) failing to file pre- or post-sentence motions to withdraw Appellant‘s guilty plea, and (2) advising Appellant not to exercise his right of allocution at sentencing. See Appellant‘s Brief, pp. 20-23. It is well-settled that, absent circumstances not present in the case at bar, “claims of ineffective assistance of counsel are to be deferred to PCRA review[.]” Commonwealth v. Holmes, 621 Pa. 595, 79 A.3d 562, 576 (2013). Accordingly, these claims are premature and we will not address them at this time.
For the aforementioned reasons, the claims raised in the Anders brief lack merit. Additionally, our independent review of the record has revealed no non-frivolous claims that Appellant could have raised, and we agree with counsel that this appeal is wholly frivolous. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed. Counsel‘s petition to withdraw is granted.
Notes
N.T. 3/21/2011, pp. 6-7.THE COURT: ... It‘s my understanding that on each of these transcripts in exchange for your pleas to Counts 1 and 2 of the first transcripts that I referred to which you‘re charged with robbery and criminal conspiracy, and on the second transcript in exchange for your pleading guilty to Counts 2 and 3 on that transcript involving robbery and criminal conspiracy.
In exchange for your pleas to Counts 1, 4, 7, 10, 11, 12, 13, 16, 21 and 24 of the third transcript in which you‘re charged with six separate counts of attempted aggravated assault, one count of attempted murder, one count of criminal conspiracy, and one count of aggravated assault, causing serious bodily injury to a police officer, in exchange for those pleas the Commonwealth has agreed to nolle pros all other counts under each of the respective transcripts.
And they have agreed to recommend a sentence which is to be deferred for a total period of 25 to 50 years of incarceration which the sentence is to be served concurrent to and as yet a federal sentence is to be imposed in the near future together with fines and costs, plus restitution.
Assault of a law enforcement officer in the first degree.—A person commits a felony of the first degree who attempts to cause or intentionally or knowingly causes bodily injury to a law enforcement officer, while in the performance of duty and with knowledge that the viсtim is a law enforcement officer, by discharging a firearm.
Proof at sentencing.—Provisions of this section shall not be an element of the crime and notice thereof to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth‘s intention to рroceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The court shall consider any evidence presented at trial and shall afford the Commonwealth and the defendant an opportunity to present any necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is apрlicable.
Motion for Reconsideration/Modification of Sentence, filed January 24, 2014, p. 2 (verbatim).F. I feel that there was a breach of contract on behalf of the District attorney office—ADA ODonnelly—where as I Fullfilled my part, after coming Forward and testifying, but no acknowledgement was acredited, Nor brought Forward to the commonwealth court. Now I are being left hung out to dry and Fend for my life. For the remainder days of my life through lengthy incarceration sentence.