Opinion
J-S22033-14 No. 1862 MDA 2013
03-28-2014
COMMONWEALTH OF PENNSYLVANIA Appellee v. RAHEIM SHARIFF WILLIAMS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence September 18, 2013
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0001631-2012
BEFORE: PANELLA, J., DONOHUE, J., and MUNDY, J. MEMORANDUM BY MUNDY, J.:
Appellant, Raheim Shariff Williams, appeals from the September 18, 2013 aggregate judgment of sentence of 11½ to 60 months' imprisonment following his guilty plea to fleeing and eluding a police officer and driving under the influence (DUI). Contemporaneously with this appeal, counsel has requested leave to withdraw in accordance with Anders v. California , 386 U.S. 738 (1967), and its progeny. After careful review, we grant counsel's petition to withdraw and affirm the judgment of sentence.
75 Pa.C.S. §§ 3733(a) and 3802(d)(1)(i), respectively.
We note that the Commonwealth has elected not to file a brief in this matter.
The trial court has summarized the relevant facts and procedural history as follows.
On August 26 2013, [Appellant] pled guilty to Fleeing or Attempting to Elude an Officer, and Driving Under the Influence of Alcohol or a Controlled Substance. [Appellant] was charged with additional offenses that were dismissed according to his plea agreement. See Plea Agreement, Aug. 26, 2013. In agreeing to plead guilty, [Appellant] also agreed to mitigated sentences of eleven and a half (11.5) to twenty-three months (23) in the Franklin County jail on the Fleeing charge, and eleven and a half (11.5) to sixty (60) months in the Franklin County Jail on the DUI charge. See Plea Agreement, Aug. 26, 2013. On Sept. 18, 2013, the [trial c]ourt accepted the plea agreement and [Appellant] was sentenced to concurrent sentences of eleven and a half (11.5) to twenty-three months (23), and eleven and a half (11.5) to sixty (60) months in the Franklin County Jail. See [Trial Court Order], Sept. 18, 2013. [Appellant] filed a Notice of Appeal on October 18, 2013, and Concise Statement of Matters Complained of on Appeal [] on November 8, 2013.Trial Court Opinion, 11/26/13, at 2 (footnotes omitted).
In his Anders brief, counsel raises the following issue on Appellant's behalf.
1. Whether there are any issues of arguable merit that could be raised on direct appeal which are presently before this Court?Anders Brief at 5.
"When presented with an Anders brief, this Court may not review the merits of the underlying issues without first passing on the request to withdraw." Commonwealth v. Titus, 816 A.2d 251, 254 (Pa. Super. 2003) (citation omitted). For cases where the briefing notice was issued after August 25, 2009, as is the case here, an Anders brief shall comply with the requirements set forth by our Supreme Court in Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
[W]e hold that in 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 361. Additionally, counsel must furnish the appellant with a copy of the brief, advise him in writing of his right to retain new counsel or proceed pro se, and attach 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) (holding that, "[w]hile the Supreme Court in Santiago set forth the new requirements for an Anders brief, ... the holding did not abrogate the notice requirements set forth in Millisock that remain binding legal precedent") (footnote omitted). "After counsel has satisfied these requirements, we must conduct our own review of the trial court proceedings and independently determine whether the appeal is wholly frivolous." Titus, supra (citation omitted).
In the instant matter, we conclude that counsel's Anders brief complies with the requirements of Santiago, supra. First, counsel has provided a procedural and factual summary of the case with references to the record. Second, counsel advances relevant portions of the record that arguably support Appellant's sentencing claim on appeal. Third, counsel concluded Appellant's appeal is frivolous as it was not preserved in a post-sentence motion. Anders Brief at 12. Lastly, counsel has complied with the requirements set forth in Millisock, supra. As a result, we proceed to conduct an independent review to ascertain if the appeal is indeed wholly frivolous.
Instantly, the crux of Appellant's argument is that the trial court's sentence amounted to a longer sentence than he bargained for. Anders Brief at 9. We begin by noting that "the entry of a guilty plea constitutes a waiver of all defects and defenses except lack of jurisdiction, invalidity of the plea, and illegality of the sentence." Commonwealth v. Main, 6 A.3d 1026, 1028 (Pa. Super. 2010). "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. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011) (citation omitted).
Herein, Appellant purports to challenge the discretionary aspects of his sentence. As the trial court aptly notes, the plea agreement in this case was a negotiated plea, and therefore, Appellant is not entitled to challenge the discretionary aspects of his sentence. Trial Court Opinion, 11/26/13, at 3. "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). "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[.]'" Id. (footnote omitted). In concluding Appellant's claim challenging the length of his sentence was waived, the trial court reasoned that "[Appellant]'s plea agreement shows both the charges to which he pled guilty and the sentence he agreed to serve, [therefore,] he has waived his opportunity to challenge the length of his sentence on appeal." Trial Court Opinion, 11/26/13, at 4; see also Plea Agreement, 8/26/13, at 2; N.T., 9/18/13, at 9-10.
We note that Appellant did not file a post-sentence motion to withdraw his guilty plea.
For all the foregoing reasons, we agree with counsel that Appellant's appeal is "wholly frivolous." Titus, supra. Accordingly, we grant counsel's petition to withdraw and affirm the trial court's September 18, 2013 judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw granted. Judgment Entered. ___________________
Joseph D. Seletyn, Esq.
Prothonotary