Case Information
NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, [1] IN THE SUPERIOR COURT OF PENNSYLVANIA
Appellee
v.
KENYA CLARKE,
Appellant No. EDA 2016 Appeal from the Judgment of Sentence of December 14, 2015
In the Court of Common Pleas Delaware County Criminal Division at No(s): CP- -CR- 0004775 -2015 BEFORE: OLSON, RANSOM AND STRASSBURGER,* JJ. Filed January 17, 2017
MEMORANDUM BY OLSON, J.: Appellant, Kenya Clarke, appeals from the judgment of sentence entered December 14, 2015, made final by denial of Appellant's post- sentence motion January 2016. On this direct appeal, Appellant's court -appointed counsel has filed both petition as counsel and an accompanying brief pursuant Anders v. California, U.S. Santiago, 978 A.2d 349 (Pa. 2009). We conclude counsel complied with the procedural requirements necessary to affect withdrawal. Moreover, after independently reviewing the record, conclude instant wholly frivolous. We, therefore, grant counsel's petition affirm Appellant's judgment of sentence. trial court ably summarized the underlying facts of this case:
*Retired Senior Judge assigned to the Superior Court.
On May 11, 2015, [Appellant] was arrested [the Commonwealth subsequently] charged [him] with[:] 1) receiving stolen property; 2) possession of small amount of marijuana; 3) criminal misconduct /damaging property intentionally, recklessly negligently; 4) disorderly conduct - engaged fighting[;] 5) disorderly conduct [; 6)] [] firearms not to be carried without a [7)] license; possession controlled substance . ; and[, 8)] . . use /possession of drug paraphernalia. prosecution proceeded with charges one and two, while charges three through [eight] were dropped.
On December 14, 2015, [Appellant] entered into a negotiated counts one and two, to serve a max[imum] sentence of [23] months, with credit for time served from May 12, August 11, 2015. Additionally, [Appellant] sentenced to one year probation served consecutively, and per count two, [30] days probation served concurrently. [Appellant] also agreed undergo drug and alcohol evaluation enroll successfully complete any recommended treatment... .
Trial Court Opinion, 7/18/16, at -2.
On December 21, 2015, filed motion guilty plea. Within Appellant's motion, Appellant alleged that "a medical condition prevented him from knowing, intelligent[,] voluntary plea." Motion to Withdraw Guilty Plea, 1.
On January 11, 2016, the parties appeared before the trial court for hearing the motion. During the hearing, Appellant testified he remembered pleading December not
J-S88005-16 taking any medication that day.' N.T. Post -Trial Motion Hearing, 1/11/16, at 5 -6. Moreover, regards whether Appellant's failure take medication that day affected his "condition, "2 Appellant testified:
My therapist said I should have been taking it and I should have told the judge I had mental problems, but I don't - I've been living with this problem all my life and I thought it was normal. I don't think it's mental problem, but she said it is.
Id. at 6.
Appellant also testified he currently takes the prescription . I'm not sure what it's called." medication Prozac and "another medicine . . Id. at 10.
Other than the above testimony, presented no evidence that even touched upon whether suffered from "a medical condition [that] prevented him from knowing, intelligent[,] and voluntary plea. "3 ' The record is unclear as whether Appellant had prescription for medication the day pleaded there is no evidence as what prescription might have been. [2] There no evidence what Appellant's "condition" might have been. [3] During post -trial motion hearing, Appellant introduced, the trial court admitted, letter was, apparently, written by "Ms. Evans." The letter admitted for purpose of "allow[ing letter] . . to speak . [to] testimony Ms. Evans who would come testify this." N.T. Post -Trial Motion Hearing, -4. letter not read into evidence it not included the certified record. As such, consider letter "to non -existent" appeal. v. Kennedy, (Pa. Super. 2005), quoting Eichman McKeon, A.2d 305, 316 Super. 2003) ( "this Court may not consider anything that not part of the official certified record: [a]ny document which not part (Footnote Continued Next Page)
J-S88005-16 Motion to Withdraw Guilty Plea, 12/21/15, at 1; see N.T. Post -
Trial Motion Hearing, at -11. trial court denied Appellant's motion withdraw his plea on
January 11, Appellant filed timely notice appeal this Court.
On appeal, Appellant's court -appointed counsel filed petition for leave to withdraw accompanied this petition with an Anders brief. Counsel's Anders brief raises one potential appellate claim:
Was trial court error for denying [Appellant's] motion withdraw when same not knowingly, voluntarily[,] intelligently made?
Appellant's Brief 4.
Before reviewing the merits this appeal, this Court must first determine whether appointed counsel fulfilled the necessary procedural requirements for withdrawing counsel. Miller, Super. 1998).
To under Anders, court -appointed counsel must satisfy certain technical requirements. First, counsel must "petition for leave to stating that, after conscientious examination the record, counsel determined would frivolous." Miller, 715 A.2d at 1207. Second, counsel must file Anders brief, in which counsel:
(Footnote Continued) the official certified record considered to non -existent ") (internal quotations omitted).
J-S88005-16
(1) provide[s] summary of the procedural history and facts, with citations the record; (2) refer[s] to anything in record counsel believes arguably supports the appeal; (3) set[s] forth counsel's conclusion appeal frivolous; state[s] counsel's for reasons concluding appeal frivolous. Counsel should articulate relevant facts of record, controlling case law, and /or statutes point have led the conclusion that appeal Santiago, 978 A.2d at 361.
Finally, counsel must furnish copy of the Anders brief her client advise the client "of [the client's] right retain new counsel, proceed pro se or raise any additional points worthy of this Court's attention." Woods, Super. 2007).
If counsel meets all of the above obligations, "it then becomes the responsibility of the reviewing make full examination of the proceedings make independent judgment to decide whether the appeal fact wholly frivolous." Santiago, 978 A.2d at 355 n.5. It only when all of the procedural substantive requirements are satisfied that counsel will permitted withdraw.
In the case at bar, counsel substantially complied with all of the above procedural obligations. We must, therefore, review the entire record analyze whether this is, fact, wholly frivolous.
J-S88005-16
On appeal, claims the trial court erred in denying his post- sentence motion to withdraw guilty plea. claim on is
This Court summarized the applicable standard of review substantive rules regarding order denying a post- sentence motion to a guilty plea:
A defendant who attempts to a guilty plea after sentencing must demonstrate prejudice the order of manifest injustice before withdrawal is justified. A showing manifest injustice may established if the plea was entered into involuntarily, unknowingly, or unintelligently. Pennsylvania constructed its guilty plea procedures in a way designed guarantee assurance that guilty pleas are voluntarily understandingly tendered. entry a guilty plea a protracted comprehensive proceeding wherein the [trial] obliged make specific determination after extensive colloquy the record plea voluntarily understandingly tendered.
Rule of the Pennsylvania Rules of Criminal Procedure requires plea offered open court, provides procedure determine whether voluntarily, knowingly, intelligently entered. As noted the Comment Rule 590, at minimum trial court should ask questions elicit the following information:
(1) Does the defendant understand the nature of the charges to which or she pleading or no /o contendere?
(2) Is there factual basis for plea? Does defendant understand she has right trial by jury?
J-S88005-16 Does the defendant understand that he she
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?
Pa.R.Crim.P. Comment.
This Court further summarized:
In order for a guilty plea be constitutionally valid, the guilty plea colloquy must affirmatively show that the defendant understood what the plea connoted its consequences. This determination made by examining the totality of the circumstances surrounding the entry of the plea. Thus, even though there an omission or defect the guilty plea colloquy, plea guilty will not deemed invalid if the circumstances surrounding the entry of the plea disclose that the defendant had full understanding of the nature consequences his plea and he knowingly voluntarily decided to enter plea.
Finally, apply the following when addressing appellate challenge the validity guilty plea:
Our law presumes defendant who enters guilty plea aware of what he doing. He bears the burden of proving otherwise. longstanding rule of Pennsylvania law
defendant may not challenge his plea by asserting he lied while under oath, even if he avers that counsel induced lies. A person who elects to plead bound by statements makes open while under oath may not later assert grounds for withdrawing plea which contradict statements made at colloquy.
J-S88005-16 A defendant who elects to plead guilty duty to answer questions truthfully. We [cannot] permit defendant postpone the final disposition of his case by lying to and later alleging that his lies were induced by the prompting of counsel.
Commonwealth v. Yeomans, -1047 Super. 2011) (internal corrections footnotes omitted) (some internal citations quotations omitted).
In the case at bar, Appellant sought his plea because, he claimed, he suffered from "a medical condition [that] prevented him from knowing, intelligent[,] voluntary plea." Appellant's Motion to Withdraw Guilty Plea, 1. However, during the hearing Appellant's post- sentence motion, Appellant introduced no he suffered from identifiable medical condition; that his evidence: "condition" affected his ability enter knowing, intelligent, voluntary plea; or, his "condition" affected him any manner whatsoever. Thus, failed satisfy his burden of production, Appellant failed put forth any evidence to show his plea was not knowing, intelligent, voluntary. See Bedell, 954 A.2d 1209, 1212 -1213 (Pa. Super. 2008) ( "[o]nce defendant entered guilty, it is presumed aware what doing, the burden of proving involuntariness upon him "). Therefore, Appellant's claim that "the trial court [erred in] denying [his] motion plea"
J-S88005-16
We have independently considered the issue raised within Appellant's brief we have determined claim frivolous. In addition, after independent review of the entire record, we see nothing might arguably support this appeal. The appeal therefore wholly Accordingly, affirm judgment of sentence grant counsel's petition appearance.
Petition to appearance granted. Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
J: seph D. Seletyn,
Prothonotary
Date: 1/17/2017