Com. v. Allah, M.

• Court: Superior Court of Pennsylvania
• Decided: January 10, 2020
• Docket: 3204 EDA 2018
• Status: Unpublished

Opinion

J-S63011-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : MICHAEL M. ALLAH : : Appellant : No. 3204 EDA 2018

Appeal from the Judgment of Sentence Entered September 17, 2018 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0005196-2017

BEFORE: GANTMAN, P.J.E., MURRAY, J., and STRASSBURGER, J.*

MEMORANDUM BY GANTMAN, P.J.E.: FILED JANUARY 10, 2020

Appellant, Michael M. Allah, appeals from the amended judgment of

sentence entered in the Delaware County Court of Common Pleas, following

his nolo contendere plea to retail theft.1 We affirm.

The relevant facts and procedural history of this case are as follows. In

2014, Appellant entered a guilty plea to several offenses at Docket No. 7207-

2013, and the court sentenced Appellant to an aggregate term of twelve (12)

to thirty-six (36) months’ state incarceration, plus two (2) years’ probation.

While Appellant was on parole from the judgment of sentence at Docket No.

7207-2013, Appellant shoplifted from a pharmacy on June 22, 2017. That

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. § 3929(a)(1). J-S63011-19

same day, authorities took Appellant into custody. The Commonwealth

subsequently charged Appellant with retail theft, theft, and related offenses

at Docket No. 5196-2017. On May 8, 2018, Appellant entered a negotiated

nolo contendere plea to one count of retail theft.

During the nolo contendere plea hearing, the Commonwealth set forth

the terms of the negotiated plea as follows:

THE COURT: Because the outstanding offer I believe was 6 to 23 months plus a period of time of probation.

* * *

[COMMONWEALTH]: Correct. And, Judge, I don’t think I said it yesterday that [the Commonwealth] would make him reentry-plan-eligible. Regardless, he’s got the six months in, but if [the Commonwealth] can make him reentry-plan-eligible, the prison can shave 36 days off of that six months and then add that to his time. And so now, technically, it’s only five-month minimum that he would have to have served, and then he could use the balance of the six months that’s left toward his retainer.

[COMMONWEALTH]: Your Honor, after discussions with defense counsel, the Commonwealth’s understanding is that [Appellant] is going to enter into a nolo contendere plea, a no contest plea to Count 1 of the information charging him with retail theft, graded as a felony of the third degree based upon his criminal history. Based upon the nolo contendere plea, the Commonwealth recommended [a] sentence of a period of incarceration in Delaware County Prison, the minimum being six months, the maximum being 23 months. He would be deemed reentry-plan-eligible, including goodtime credit. His credit starts from June 22 nd of 2017. Immediate parole is envisioned in this case. I’m going to ask we not put an end date on the 6/22 time frame to allow the prison to calculate his goodtime credit. … So

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long as the sentencing sheet reflects goodtime credit, they should calculate a sentence by subtracting six days for every 30 days he served without incident. …

[COMMONWEALTH]: … As I indicated, the [Pennsylvania Board of Probation and Parole (“PBPP”)] has a detainer lodged against [Appellant] for violation of parole and probation. Any time that I believe he served past his minimum on this [judgment of sentence at Docket No. 5196-2017] may be credited towards that, but I leave that to the discretion of the Board. … The balance of this information will be withdrawn. … Those are the terms of the nolo contendere negotiated plea.

(N.T. Plea/Sentencing Hearing, 5/8/18, at 4, 17-19). Also on May 8, 2018,

the court sentenced Appellant to six (6) to twenty-three (23) months’ county

incarceration, with credit for time served from June 22, 2017. The May 8th

sentencing order noted the court deemed Appellant “good time credit eligible

and re-entry plan eligible,” but did not reference time served credit applicable

to Appellant’s parole back time sentence at Docket No. 7207-2013.

(Sentencing Order, filed 5/8/18).

Appellant timely filed a motion for reconsideration of sentence on May

16, 2018. In the motion, Appellant averred the May 2018 judgment of

sentence did not accurately reflect the terms of his plea agreement with the

Commonwealth regarding time-served credit applicable to his back-time at

Docket No. 7207-2013. Specifically, Appellant claimed the parties had agreed,

inter alia, that he would receive credit for time served from November 14,

2017, to May 8, 2018, toward Appellant’s parole back time. On September 5,

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2018, the court conducted a hearing on Appellant’s reconsideration motion,

which Appellant attended with counsel. During the hearing, the court

accepted for filing from Appellant a supplemental post-sentence motion to

withdraw his nolo contendere plea. Appellant’s grounds for withdrawing his

plea were the same as those he asserted in his reconsideration motion: the

judgment of sentence did not accurately reflect the plea negotiations

regarding credit for time served applying to Appellant’s parole back time at

Docket No. 7207-2013. Appellant also claimed the PBPP failed to credit him

for time served toward the parole back time.

On September 17, 2018, the court granted relief on Appellant’s

reconsideration motion and entered an amended sentencing order by

stipulation of the parties. Per the amended sentencing order, the court

sentenced Appellant at Docket No. 5196-2017 to six (6) to twenty-three (23)

months’ county incarceration, with credit for time served (i) from June 22,

2017, to November 16, 2017, at Docket No. 5196-2017, and (ii) from

“November 17, 2017 forward” toward the state parole back time at Docket

No. 7207-2013. The court denied Appellant’s supplemental post-sentence

motion to withdraw his nolo contendere plea on October 19, 2018.

On October 25, 2018, Appellant timely filed a pro se notice of appeal

and requested appointment of appellate counsel. The trial court did not order

Appellant to file a concise statement of errors complained of on appeal per

Pa.R.A.P. 1925(b), and Appellant filed none.

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On November 27, 2018, the trial court permitted plea counsel to

withdraw but did not appoint new counsel. This Court ordered the trial court

on January 3, 2019, to assess Appellant’s eligibility for appellate counsel and

to appoint counsel if the court determined Appellant was entitled to counsel.

On January 12, 2019, the trial court appointed appellate counsel, who filed in

this Court on July 9, 2019, an application to withdraw as counsel and an

Anders brief.2 By order entered July 25, 2019, this Court permitted Appellant

to file a response to the Anders brief within 30 days; Appellant timely

complied pro se on Monday, August 26, 2019.

As a prefatory matter, generally, this Court has jurisdiction only over

final orders. Commonwealth v. Rojas, 874 A.2d 638 (Pa.Super. 2005). “A

direct appeal in a criminal proceeding lies from the judgment of sentence.”

Commonwealth v. Patterson, 940 A.2d 493, 497 (Pa.Super. 2007), appeal

denied, 599 Pa. 691, 960 A.2d 838 (2008). If a defendant in a criminal case

files a post-sentence motion, the judgment of sentence does not become final

for purposes of appeal until the trial court disposes of all of the post-sentence

motions. Commonwealth v. Borrero, 692 A.2d 158 (Pa.Super. 1997);

Pa.R.Crim.P. 720(A)(2). A defendant wishing to challenge 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.

2 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

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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). See also Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i)

(stating post-sentence motion challenging validity of guilty plea shall be filed

no later than 10 days after imposition of sentence). A defendant may file a

supplemental post-sentence motion, however, at the discretion of the trial

judge. Pa.R.Crim.P. 720(B)(1)(b).

Instantly, the court sentenced Appellant on May 8, 2018, and Appellant

timely filed a post-sentence motion to reconsider the sentence on May 16,

2018. During September 5, 2018 hearing on Appellant’s reconsideration

motion, the court accepted for filing Appellant’s supplemental post-sentence

motion to withdraw his nolo contendere plea. See id. On September 17,

2018, the court entered an order disposing of Appellant’s reconsideration

motion and amending the judgment of sentence to reflect credit for time

served toward Appellant’s back time at Docket No. 7207-2013; Appellant’s

supplemental post-sentence to withdraw his nolo contendere plea remained

outstanding until the court denied it on October 19, 2018. Subsequently,

Appellant filed a notice of appeal on October 25, 2018. Therefore, Appellant’s

notice of appeal was timely filed, and we see no jurisdictional impediments to

our review. See Borrero, supra; Pa.R.A.P. 903(a).

As a second preliminary matter, appellate counsel seeks to withdraw his

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representation pursuant to Anders 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[3] 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.

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. ____________________________________________

3 Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).

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Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

[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. After confirming that counsel has met the

antecedent requirements to withdraw, this Court makes an independent

review of the record to confirm that the appeal is wholly frivolous.

Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super. 2006). See also

Commonwealth v. Dempster, 187 A.3d 266 (Pa.Super. 2018) (en banc).

Instantly, appellate counsel has 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 proper letter explaining Appellant’s immediate 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 and 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 technical requirements of Anders

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and Santiago. Appellant responded pro se to counsel’s Anders brief on

August 26, 2019.

Counsel raises the following issue on Appellant’s behalf:

WHETHER THE COURT ERRED IN DENYING APPELLANT’S MOTION TO WITHDRAW HIS NOLO CONTENDERE PLEA AFTER APPELLANT WAS ENTICED INTO ENTERING THE PLEA BY MISINFORMATION CONCERNING HIS CREDIT FOR TIME SERVED ON HIS VIOLATION OF STATE PAROLE[?]

(Anders Brief at 3).4

Appellant argues the trial court should have granted his motion to

4 In Appellant’s pro se response to counsel’s petition to withdraw, he asserts appellate counsel’s Anders brief is deficient. For the reasons discussed regarding appellate counsel’s substantial compliance with the technical requirements of Anders and Santiago, however, Appellant’s claim fails. Additionally, Appellant avers plea counsel was ineffective for inducing Appellant into unintelligently and unknowingly entering the nolo contendere plea. Appellant, however, did not make a knowing, intelligent, and voluntary waiver of review per the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-9546. Absent Appellant’s waiver, we refuse to entertain his claims on direct appeal presented under the rubric of ineffective assistance of counsel and defer them instead for review in a timely PCRA petition. See Commonwealth v. Holmes, 621 Pa. 595, 598-99, 79 A.3d 562, 563-64 (2013); Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002) and its progeny. Appellant also claims the sentencing court lacked authority to sentence him, because it imposed upon Appellant an illegal sentence per 61 Pa.C.S.A. 6138(a)(5)(i). See 61 Pa.C.S.A. § 6138(a)(5)(i) (stating: “If a new sentence is imposed on the parolee, the service of the balance of the term originally imposed by a Pennsylvania court shall precede the commencement of the new term imposed in the following cases: (i) If a person is paroled from a State correctional institution and the new sentence imposed on the person is to be served in the State correctional institution”). Section 6138(a)(5)(i) is inapplicable, however, as the September 2018 judgment of sentence grants Appellant credit for time served on his new, county sentence at Docket No. 5196-2017 prior to time-served credit on his parole back time at Docket No. 7207-2013, a state incarceration sentence. Thus, Appellant’s sentencing claim fails.

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withdraw his nolo contendere plea. Appellant contends he did not receive the

benefit of the negotiated plea, where the judgment of sentence did not provide

Appellant credit for time served toward the parole back-time at Docket No.

7207-2013. We disagree.

There is no absolute right to withdraw a guilty plea, and the decision as

to whether to allow a defendant to do so is a matter within the sound discretion

of the trial court. Commonwealth v. Muhammad, 794 A.2d 378, 382

(Pa.Super. 2002).

It is firmly established that the standard for granting a post- sentence petition to withdraw a guilty plea3 requires a showing in the order of manifest injustice. 3 In terms of its effect upon a case, a plea of nolo contendere is treated the same as a guilty plea. Commonwealth v. Miller, 748 A.2d 733, 735 (Pa.Super. 2000).

Commonwealth v. Jefferson, 777 A.2d 1104, 1107 (Pa.Super. 2001)

(internal quotation marks omitted). See also Commonwealth v. Pollard,

832 A.2d 517, 522 (Pa.Super. 2003). A manifest injustice occurs when a plea

is not tendered knowingly, intelligently, and voluntarily. Commonwealth v.

Gunter, 565 Pa. 79, 84, 771 A.2d 767, 771 (2001). Mere disappointment in

a sentence, however, does not constitute a manifest injustice. See Pollard,

supra. See also Commonwealth v. Flick, 802 A.2d 620, 623 (Pa.Super.

2002) (stating courts try to discourage entry of plea as sentence-testing

device).

Instantly, in its opinion, the trial court addressed Appellant’s request to

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withdraw his nolo contendere plea, in part, as follows:

…Appellant entered into a nolo contendere plea on May 8, 2018. At the time of the plea, [Appellant] knew that he was on probation/parole with the [PBPP] and that the [PBPP] would have to calculate his back time. This [c]ourt notes that as part of the sentence imposed for six (6) to twenty- three (23) months[’ incarceration at Docket No. 5196- 2017], he was provided with good time credit, reentry plan eligible and credit from June 22, 2017. This [c]ourt notes that following the sentence on September 17, 2018, Appellant’s counsel and the Assistant District Attorney entered into a stipulation providing Appellant with credit from June 22, 2017, to November 16, 2017, with the balance of the credit from November 17, 2017, forward to be applied to his parole back time on case CP-23-CR-7207- 201[3].

(Trial Court Opinion, filed November 7, 2018, at 4) (internal footnote omitted).

Thus, Appellant received the benefit of his plea bargain with the

Commonwealth regarding time-served credit for his parole back-time

sentence at Docket No. 7207-2013, and we discern no abuse of discretion in

the trial court’s denial of Appellant’s motion to withdraw his nolo contendere

plea. See Muhammad, supra. Additionally, following our independent

review of the record, we agree the appeal is frivolous. See Dempster, supra;

Palm, supra. Accordingly, we affirm and grant counsel’s petition to withdraw.

Judgment of sentence affirmed; counsel’s petition to withdraw is

granted.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/10/20

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