Opinion
J-S01039-18 No. 1290 MDA 2017
03-09-2018
COMMONWEALTH OF PENNSYLVANIA Appellee v. JUNIOR RASHEAN JACKSON Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence January 28, 2016
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0002126-2014 BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Junior Rashean Jackson, appeals nunc pro tunc from the judgment of sentence entered in the Lackawanna County Court of Common Pleas, following his open guilty plea to two counts of possession with intent to deliver a controlled substance ("PWID"). We affirm and grant counsel's petition to withdraw.
The relevant facts and procedural history of this case are as follows. On October 21, 2015, Appellant entered an open guilty plea to two counts of PWID. Appellant's convictions stem from an incident on August 19, 2014, in which Appellant possessed with the intent to deliver 8.6 grams of heroin and 11 grams of cocaine. The court sentenced Appellant on January 28, 2016, to 18 to 36 months' imprisonment plus five years' probation for each offense, to run consecutively. Appellant timely filed a post-sentence motion on Monday, February 8, 2016, seeking only Recidivism Risk Reduction Incentive ("RRRI") eligibility, which the court granted on April 5, 2016. Appellant did not file a direct appeal.
On January 30, 2017, Appellant timely filed a pro se petition under the Post Conviction Relief Act ("PCRA"). In his pro se petition, Appellant alleged, inter alia: (1) plea counsel was ineffective for failing to move to withdraw Appellant's guilty plea and sentencing counsel was ineffective for failing to object during post-sentence proceedings to preserve a sentencing claim for direct appeal; and (2) plea counsel was also ineffective for misleading Appellant and coercing him to plead guilty where counsel led Appellant to believe that he would receive a lesser, county sentence. Appellant expressly sought reinstatement of his post-sentence rights nunc pro tunc, so he could challenge the discretionary aspects of his sentence and validity of his guilty plea. Appellant also filed a pro se memorandum in support of his PCRA petition expanding on these claims. In the supporting memorandum, Appellant sought, inter alia, withdrawal of his guilty plea and sentencing relief. Appellant also alleged counsel was ineffective for failing to file a direct appeal on Appellant's behalf.
The court subsequently appointed counsel, who filed a supplemental petition on July 10, 2017. In the supplemental PCRA petition, Appellant claimed, inter alia, that he wrote to counsel on January 29, 2016, requesting counsel to file a direct appeal on his behalf. Appellant insisted counsel was ineffective for failing to seek withdraw of his guilty plea and to object to the imposition of consecutive sentences. Appellant expressly requested reinstatement of his post-sentence and direct appeal rights nunc pro tunc.
Notwithstanding Appellant's request, the court restored only Appellant's direct appeal rights nunc pro tunc, on July 18, 2017. Appellant timely filed a notice of appeal nunc pro tunc on August 10, 2017. On August 15, 2017, the court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), which Appellant timely filed on August 29, 2017.
As a preliminary matter, appellate counsel seeks to withdraw his representation pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Santiago , 602 Pa. 159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: 1) petition the Court for leave to withdraw, certifying that after a thorough review of the record, counsel has concluded the issues to be raised are wholly frivolous; 2) file a brief referring to anything in the record that might arguably support the appeal; and 3) furnish a copy of the brief to the appellant and advise him of his right to obtain new counsel or file a pro se brief to raise any additional points the appellant deems worthy of review. Santiago , supra at 173-79, 978 A.2d at 358-61. Substantial compliance with these requirements is sufficient. Commonwealth v. Wrecks , 934 A.2d 1287, 1290 (Pa.Super. 2007).
In Santiago , supra , our Supreme Court addressed the briefing requirements where court-appointed appellate counsel seeks to withdraw representation:
Neither Anders nor McClendon requires that counsel's brief provide an argument of any sort, let alone the type of argument that counsel develops in a merits brief. To repeat, what the brief must provide under Anders are references to anything in the record that might arguably support the appeal.Santiago , supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:
* * *
Under Anders , the right to counsel is vindicated by counsel's examination and assessment of the record and counsel's references to anything in the record that arguably supports the appeal.
[I]n the Anders brief that accompanies court-appointed counsel's petition to withdraw, counsel 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.Id. at 178-79, 978 A.2d at 361.
Commonwealth v. McClendon , 495 Pa. 467, 434 A.2d 1185 (1981).
Instantly, appellate counsel filed a petition to withdraw. The petition states counsel conducted a conscientious review of the record and determined the appeal is wholly frivolous. Counsel also supplied Appellant with a copy of the brief and a letter explaining Appellant's right to retain new counsel or proceed pro se to raise any additional issues Appellant deems worthy of this Court's attention. In the Anders brief, counsel provides a summary of the facts and procedural history of the case. Counsel's argument refers to relevant law that might arguably support Appellant's issue. Counsel further states the reasons for his conclusion that the appeal is wholly frivolous. Therefore, counsel has substantially complied with the requirements of Anders and Santiago.
Counsel raises the following issue on Appellant's behalf:
Appellant has not responded to the Anders brief pro se or with newly retained private counsel.
SHOULD APPELLATE COUNSEL BE GRANTED LEAVE TO WITHDRAW AS COUNSEL BECAUSE ANY APPELLATE ISSUES IN THE INSTANT CASE ARE FRIVOLOUS?( Anders Brief at 2).
Appellant argues: (1) his sentence is illegal because his PWID convictions should have merged for sentencing purposes where they arose from a single criminal act; (2) Appellant's guilty plea was unknowing and involuntary because the court failed to advise him of the maximum aggregate sentence he could face and that the court could impose consecutive sentences; and (3) the court abused its discretion by imposing consecutive sentences. We disagree.
To the extent Appellant also claims plea counsel was ineffective by coercing Appellant's guilty plea, that claim must await collateral review. See Commonwealth v. Grant , 572 Pa. 48, 813 A.2d 726 (2002) (holding ineffective assistance of counsel claims are generally reserved for collateral review).
Generally, "[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." Commonwealth v. Lincoln , 72 A.3d 606, 609-10 (Pa.Super. 2013), appeal denied, 624 Pa. 688, 87 A.3d 319 (2014) (holding defendant failed to preserve challenge to validity of guilty plea where he did not object during plea colloquy or file post-sentence motion to withdraw plea). Likewise, objections to the discretionary aspects of a sentence are waived if they are not raised at the sentencing hearing or in a timely filed post-sentence motion. Commonwealth v. Griffin , 65 A.3d 932 (Pa.Super. 2013), appeal denied, 621 Pa. 682, 76 A.3d 538 (2013). See also Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i), (v) (stating post-sentence motion shall be filed no later than 10 days after imposition of sentence).
Where the court reinstates direct appeal rights nunc pro tunc based on counsel's ineffectiveness, the defendant is not automatically entitled to reinstatement of his post-sentence rights nunc pro tunc as well. Commonwealth v. Liston , 602 Pa. 10, 977 A.2d 1089 (2009). Nevertheless, a PCRA court can reinstate a defendant's post-sentence rights nunc pro tunc if the defendant successfully pleads and proves he was deprived of the right to file and litigate post-sentence motions as a result of ineffective assistance of counsel. Id. at 19 n.9, 977 A.2d at 1094 n.9 (noting counsel may be deemed ineffective for failing to file post-sentence motions when claim requires preservation in trial court for purposes of appellate review). Compare Commonwealth v. Fransen , 986 A.2d 154 (Pa.Super. 2009) (holding PCRA petitioner who obtains reinstatement of direct appeal rights nunc pro tunc is not entitled to reinstatement of post-sentence rights nunc pro tunc if he did not request that relief with PCRA court; appellant's claim that he was entitled to file post-sentence motions and to have benefit of evidentiary hearing warranted no relief where appellant did not plead or prove in PCRA petition that he was deprived of right to file post-sentence motions).
Instantly, Appellant entered an open guilty plea on October 21, 2015, to two counts of PWID. The court sentenced Appellant on January 28, 2016, to consecutive terms of 18 to 36 months' imprisonment plus five years' probation for each offense. Appellant did not file a post-sentence motion seeking to withdraw his guilty plea or challenging the discretionary aspects of his sentence. Appellant also did not file a direct appeal. Appellant subsequently filed a pro se PCRA petition and counseled supplemental PCRA petition, alleging, inter alia, plea counsel's ineffectiveness for failing to move to withdraw Appellant's guilty plea, sentencing counsel's ineffectiveness for failing to object during post-sentence proceedings to preserve a sentencing claim for direct appeal, and sentencing counsel's failure to file a direct appeal on Appellant's behalf. In both petitions, Appellant expressly sought reinstatement of his post-sentence motion rights nunc pro tunc. Nevertheless, the court restored only Appellant's direct appeal rights nunc pro tunc.
Consistent with Liston and Fransen , Appellant pled that he was deprived of the right to file and litigate post-sentence motions as a result of ineffective assistance of counsel. See Liston , supra ; Fransen , supra. Appellant's petitions made clear he wanted to challenge the validity of his guilty plea and the discretionary aspects of his sentence, so restoration of Appellant's direct appeal rights nunc pro tunc without restoration of Appellant's post-sentence motion rights nunc pro tunc, was essentially an empty gesture. In light of Appellant's stated intent to challenge the validity of his guilty plea and imposition of consecutive sentences on appeal, the PCRA court should have restored Appellant's post-sentencing rights as well. See Liston , supra ; Fransen , supra. See also Commonwealth v. Rivera , 154 A.3d 370 (Pa.Super. 2017) (en banc), appeal denied, ___ Pa. ___, 169 A.3d 1072 (2017) (affirming PCRA court's reinstatement of appellant's post-sentence motion and direct appeal rights nunc pro tunc based on counsel's ineffectiveness for failing to consult with appellant about whether he wanted to file direct appeal; PCRA court properly restored Appellant's post-sentencing rights nunc pro tunc because one issue appellant wanted to raise regarding withdrawal of his guilty plea required preservation in trial court). Under these circumstances, we decline to deem any of Appellant's claims waived for failure to preserve them in a post-sentence motion. Nevertheless, Appellant did not preserve his discretionary aspects of sentencing claim in his court-ordered Rule 1925(b) statement, so it is waived on that basis. See Commonwealth v. Castillo , 585 Pa. 395, 888 A.2d 775 (2005) (holding as general rule that issues not raised in Rule 1925(b) statement are waived on appeal).
Moreover, Appellant's discretionary aspects claim does not present a substantial question. See Commonwealth v. Gonzalez-Dejusus , 994 A.2d 595 (Pa.Super. 2010) (explaining as general rule that court's exercise of discretion in imposing consecutive versus concurrent sentences does not present substantial question; noting that imposition of consecutive sentences raises substantial question in only rare and most extreme cases). --------
Regarding Appellant's remaining claims, after a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Michael J. Barrasse, we affirm those issues on the basis of the trial court's opinion. ( See Trial Court Opinion, filed October 16, 2017, at 5-10) (finding: (1) facts underlying each of Appellant's PWID convictions are totally separate and constitute two criminal acts; one conviction involves PWID of heroin; other conviction involves PWID of cocaine; heroin and cocaine are two separate controlled substances; these crimes do not merge for sentencing; (2) record belies Appellant's claim that court failed to inform him of potential maximum sentence or that court could impose sentences consecutively; Appellant initialed each page of lengthy written guilty plea colloquy in which he indicated his awareness of crimes to which he pled guilty, elements of those crimes, and maximum penalties he was facing; written guilty plea specifies that maximum sentence for PWID (heroin) is 15 years' imprisonment and for PWID (cocaine) is 10 years' imprisonment, and that aggregate maximum penalty was 25 years' imprisonment; written colloquy also specified that court could impose sentences consecutively; court also conducted oral plea colloquy, at which time Appellant affirmed that his responses in written plea colloquy were true and correct; under totality of circumstances, Appellant knowingly and voluntarily entered guilty plea). Accordingly, Appellant's discretionary aspects of sentencing challenge is waived. Regarding the remaining claims, we affirm on the basis of the trial court's opinion; and, following our independent review of the record, we grant counsel's petition to withdraw.
Judgment of sentence affirmed; counsel's petition to withdraw is granted. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/9/2018
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