Com. v. Bailey, J.

Opinion

J-S05039-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAMAL AMID BAILEY : : Appellant : No. 829 EDA 2024

Appeal from the Judgment of Sentence Entered September 21, 2022 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0004351-2017

BEFORE: BOWES, J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED APRIL 1, 2025

Appellant, Jamal Amid Bailey, appeals from the judgment of sentence

entered in the Court of Common Pleas of Chester County on September 21,

2022. We grant counsel’s application to withdraw and affirm.

The relevant facts and procedural history are as follows: Between

February 6, 2017, and April 26, 2017, Appellant administered doses of

Quetiapine, an adult psychoactive medication, to his ten-month old daughter.

He placed the drug in her milk bottles each evening, resulting in her death.

N.T., 8/30/21, at 2. On August 30, 2021, Appellant pled guilty to: Murder of

the Third Degree;1 Aggravated Assault—Victim Less Than 6 and Defendant 18

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* Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S.A. § 2502(c). J-S05039-25

or Older;2 and Endangering the Welfare of Children. 3 On September 21, 2022,

Appellant was sentenced to a term of incarceration of seventeen to forty years,

followed by ten years of probation to run consecutively.

On September 30, 2022, Appellant filed a timely post-sentence motion

to “Withdraw Guilty Plea and for Appointment of Conflict Counsel.” On

November 16, 2022, counsel for Appellant was granted leave to withdraw and

the court administrator was directed to appoint substitute conflict counsel. It

was not until July 20, 2023, that the Court Administrator appointed new

counsel. However, Pennsylvania Rule of Criminal Procedure 720(B)(3)(a)

states that the trial court “shall decide [a] post-sentence motion, including

any supplemental [post-sentence] motion, within 120 days of the filing of the

motion.” Pa.R.Crim.P. 720(B)(3)(a).

If the trial court “fails to decide the motion within 120 days, or to grant

an extension as provided in [Rule 720](B)(3)(b), the motion shall be deemed

denied by operation of law.” Id. Here, although the trial court entered an order

appointing conflict counsel within 120 days of Appellant’s post-sentence

motion, the trial court did not dispose of Appellant’s motion to withdraw his

guilty plea.

When a post-sentence motion is denied by operation of law, the clerk of courts shall forthwith enter an order on behalf of the [trial] court, and, as provided in [Pennsylvania Rule of Criminal Procedure] 114, forthwith shall serve a copy of the order on the ____________________________________________

2 18 Pa.C.S.A. § 2702(a)(8). 3 18 Pa.C.S.A. § 4304(a)(1).

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attorney for the Commonwealth, the defendant’s attorney, or the defendant if unrepresented, that the post-sentence motion is deemed denied.

Pa.R.Crim.P. 720(B)(3)(c). Once a post-sentence motion is denied by the trial

court, or deemed denied by operation of law, a defendant has thirty days in

which to file a timely notice of appeal. Pa.R.Crim.P. 720(A)(2)(a) and (b).

Here, Appellant filed his post-sentence motion on September 30, 2022.

As such, the trial court had until January 28, 2023, to dispose of the post-

sentence motion or it would be deemed denied by operation of law. See

Pa.R.Crim.P. 720(B)(3)(c). Because the trial court did not dispose of

Appellant’s September 30, 2023 post-sentence motion by January 28, 2023,

Appellant’s post-sentence motion was deemed denied by operation of law on

January 28, 2023.

Ordinarily, Appellant’s time for filing an appeal would expire on Monday,

February 27, 2023, thirty days after his post-sentence motion was denied by

operation of law. Pa.R.Crim.P. 720(A)(2)(b). A review of the record, however,

reveals that the clerk of courts did not enter an order on behalf of the trial

court that indicated Appellant’s post-sentence motion was denied by operation

of law. Additionally, the trial court proceeded to schedule a hearing on

Appellant’s post-sentence motion and grant nearly a dozen continuances

between April 2023 and January 2024 for the hearing. It is well-established

that “where the clerk of courts does not enter an order indicating that the

post-sentence motion is denied by operation of law and notify the defendant

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of same, a breakdown in the court system has occurred and we will not find

an appeal untimely under these circumstances.” Commonwealth v. Perry,

820 A.2d 734, 735 (Pa. Super. 2003), citing Commonwealth v. Braykovich,

664 A.2d 133 (Pa. Super. 1995), appeal denied, 675 A.2d 1242 (Pa. 1996).

The hearing on Appellant’s post-sentence motion to withdraw his guilty

plea finally occurred on February 2, 2024. On February 12, 2024, the trial

court entered the order which noted that Appellant’s motion had already been

deemed denied by operation of law pursuant to Pa.R.Crim.P. 720(B)(3). Tr.

Ct. Order, 2/12/24, at 1. In the alternative, the trial court noted that

“Defendant did not persuade this court that his guilty plea [on] August 30,

2021 was not knowing, intelligent, and voluntary.” Tr. Ct. Order, 2/12/24, at

1 n.2.

Due to the breakdown in the court system that prevented Appellant from

receiving notice that his motion was denied by operation of law, the trial

court’s February 12, 2024, order also reinstated Appellant’s right to direct

appeal, nunc pro tunc, upon the Commonwealth’s consent. On February 14,

2024, the Court Administrator appointed appellate counsel, Scott J. Werner,

Esquire, who filed a timely Notice of Appeal on March 12, 2024. On March 13,

2024, the trial court entered an order directing Appellant to file and serve a

Rule 1925(b) statement within twenty-one days.

On April 10, 2024, this Court entered an order stating that all appellate

briefs be filed in this matter before May 20, 2024. Super. Ct. Order, 4/10/24,

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at 1. On April 3, 2024, this Court filed an order stating that Appellant had

failed to timely file the docketing statement required by Pa.R.A.P. 3517, and

that it must be filed by May 3, 2024. Counsel for Appellant complied with the

latter order and filed the docketing statement on April 29, 2024. However,

when no 1925(b) statement or appellate brief was filed as of July 15, 2024,

this Court remanded the appeal to the trial court for thirty days directing the

trial court to determine the status of Appellant’s appellate counsel. Super. Ct.

Order, 7/15/24. The trial court held a conference on July 24, 2024, and

notified this Court that the appointed appellate counsel had not abandoned

Appellant, counsel would continue to represent Appellant, and that the

Appellant was satisfied with counsel’s representation. Tr. Ct. Notification,

8/22/24.

In light of the trial court’s determination, on October 1, 2024, this Court

issued a briefing schedule, ordering Appellant to file his brief on or before

November 12, 2024. Super. Ct. Order, 10/1/24, at 1. We note that our

scheduling order directing counsel to file a brief did not direct counsel to file a

statement pursuant to 1925(b), however, it required that all documents

necessary to the issues raised on appeal be included or else they may be

waived. Super. Ct. Order, 10/1/24, at 1.

Appellant’s counsel complied with our scheduling order and filed an

Anders brief on November 12, 2024 pursuant to Anders v. California, 386

U.S. 738 (1967). However, upon the filing of the Anders brief, counsel had

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still not complied with the trial court’s March 13, 2024, order to file a 1925(b)

statement, or alternatively, a 1925(c)(4) statement of intent to withdraw in

lieu of a concise statement.

This Court issued a memorandum concluding that counsel’s failure to

file a statement pursuant to 1925(b) or (c) prevented us from granting his

motion to withdraw. Commonwealth v. Bailey, No. 829 EDA 2024, 2025 WL

523869, 2025 Pa. Super. Unpub. LEXIS 382 (Feb. 18, 2025). We stated that

within fifteen days of the date of our memorandum, counsel must either (1)

comply with the order and file a Rule 1925(b) statement or (2) file a statement

of intent to file an Anders brief. Id. at *9 (citing See Commonwealth v.

McBride, 957 A.2d 752, 757 (Pa. Super. 2008)).

On March 18, 2025, counsel filed a statement of intent to file an

Anders/McClendon brief pursuant to Rule 1925(c)(4). Appellant did not file

a pro se response to the Anders brief. No additional trial court opinion was

filed. The trial court record was certified and transmitted back to this Court.

This appeal followed.

Prior to addressing this appeal, we must first resolve counsel’s petition

to withdraw. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.

2007) (en banc). There are procedural and briefing requirements imposed

upon an attorney who seeks to withdraw on appeal pursuant to which counsel

must:

1) petition the court for leave to withdraw stating that, after making a conscientious examination of the record, counsel has

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determined that the appeal would be frivolous; 2) furnish a copy of the brief to the [appellant]; and 3) advise the [appellant] that he or she has the right to retain private counsel or raise additional arguments that the [appellant] deems worthy of the court’s attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en

banc) (citation omitted). In addition, our Supreme Court in Santiago stated

that an Anders 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 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.

Commonwealth v. Santiago, 978 A.2d at 349, 361 (Pa. 2009). Counsel

also must 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) (citation omitted).

Herein, counsel filed a petition to withdraw as counsel and an Anders

brief. After review of the Anders brief, we find that counsel sufficiently

complied with the procedural requirements of Anders as articulated by

Santiago. The brief contains a factual and procedural summary, a conclusion

that the appeal is frivolous, and counsel’s reasoning for it. Appellant’s Br. at

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12. Attached to the application to withdraw was a copy of the letter advising

Appellant of his rights pursuant to Commonwealth v. Millisock, 873 A.2d

748 (Pa. Super. 2005). See Application to Withdraw, Exhibit B. The Millisock

letter and certificates of service attached to the brief and application to

withdraw indicate Appellant was served a copy of the documents. See Letter,

11/11/24. Accordingly, counsel’s Anders brief has complied with the

procedure for withdrawing as counsel.

Once a reviewing court has determined that counsel satisfied the above

requirements, the court must

then proceed[], after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel’s request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.

Anders, supra at 744 (emphasis added).

With the above principles in mind, we will first review the issue raised

in counsel’s Anders Brief. Appellant sought to withdraw his guilty plea through

his post-sentence motion. Following a hearing, the trial court concluded the

Appellant’s plea was knowing, voluntary, and intelligent. See Tr. Ct. Op.,

4/9/24, at 2 (citing Tr. Ct. Order, 2/12/24, at 1 n.2).

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.

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Super. 2002). A trial court’s decision to deny a defendant’s motion to withdraw

a guilty plea is subject to an abuse-of-discretion standard of review.

Commonwealth v. Broaden, 980 A.2d 124, 128 (Pa. Super. 2009). Post-

sentence motions to withdraw a guilty plea are subject to higher scrutiny than

those filed before one’s sentence is imposed to discourage the entry of guilty

pleas as “sentence-testing devices.” Id. at 129 (citation omitted). Thus, in

order to withdraw a guilty plea after sentence is imposed, a defendant must

demonstrate that a manifest injustice would result if the court were to deny

her post-sentence motion to withdraw his plea. Id. Manifest injustice is

present when “the plea was not tendered knowingly, intelligently, and

voluntarily.” Id. (citation omitted). When determining if a guilty plea is valid,

we must examine the totality of circumstances surrounding it. Id. (citation

omitted). It is well-established that a defendant’s disappointment in the

sentence imposed upon her does not constitute “manifest injustice.”

Commonwealth v. Pollard, 832 A.2d 517, 522 (Pa. Super. 2003) (citation

omitted).

Herein, the record belies Appellant’s contention that the trial court

should have permitted him to withdraw his guilty plea, and Appellant cannot

demonstrate manifest injustice. Appellant entered into a negotiated open

guilty plea with the assistance of counsel. He reviewed, signed, and initialed

each page of the written guilty plea colloquy including the terms and facts in

support of the plea. Colloquy, 8/30/21, at 5-9, 11. A colloquy was conducted

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by the trial court, and Appellant was questioned in detail about his plea and

whether it was knowing and voluntary. N.T., 8/30/21, at 7-20. The trial court

found that Appellant completed the guilty plea form with a full understanding

of its contents, and that he voluntarily and intelligently entered the guilty plea.

Colloquy, 8/30/21, at 10.

It was not until after Appellant was sentenced that he asserted that his

plea was not intelligent, voluntary, and knowing. Regarding Appellant’s

argument on this point, the trial court stated as follows:

This court heard evidence on February 2, 2024 while awaiting Defendant’s response to the Commonwealth’s challenge to this court’ jurisdiction to decide Defendant’s Motion. Defendant did not persuade this court that his guilty plea August 30, 2021 was not knowing, intelligent, and voluntary. Defendant’s challenge to his guilty plea appears to be in the nature of a claim for ineffective assistance of counsel. “[G]enerally speaking, claims of ineffectiveness may no longer be entertained on direct appeal, even if a defendant procures new counsel; rather, they are deferred to the post-conviction review process.[”] Commonwealth v. Bradley, 261 A.3d 381, 391 (Pa. 2021) (citing Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002)).

Tr. Ct. Order, 2/12/24, at n.2.

We agree, and we discern no abuse of discretion. Appellant failed to

demonstrate manifest injustice, and the trial court found that Appellant’s plea

was knowing, voluntary, and intelligent. Appellant indicated to the trial court

that it was only after thorough and careful consultation with his lawyer and

with the colloquy document that he signed it. N.T., 8/30/31, at 9. He

specifically stated that his attorney explained the paperwork, was willing to

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answer any of his questions, and was a “blessing” to him. Id. at 10, 14. He

understood the sentence he could receive for his plea, but was informed that

an “open” guilty plea means there is no agreement as to what the sentence

will be. Id. at 11-12. He indicated on the record after the colloquy that he had

no questions for his attorney or the court. Id. at 19, 20, 21.

We have conducted an independent review of the issue identified by

counsel in his Anders brief and agree that it lacks arguable merit. Further,

we have reviewed Appellant’s pro se filings, transcripts of the proceedings,

and the trial court’s orders and opinion. Our review of the record raises no

new issues. Accordingly, we grant counsel’s petition to withdraw and affirm

Appellant’s judgment of sentence.

Judgment of sentence affirmed. Petition to withdraw granted.

Date: 4/1/2025

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