Com. v. Carter, M.

• Court: Superior Court of Pennsylvania
• Decided: May 23, 2025
• Docket: 1630 MDA 2024
• Status: Unpublished

Opinion

J-S16019-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MALCOLM DEMAR CARTER : : Appellant : No. 1630 MDA 2024

Appeal from the Judgment of Sentence Entered August 22, 2024 In the Court of Common Pleas of Snyder County Criminal Division at No(s): CP-55-CR-0000081-2023

BEFORE: LAZARUS, P.J., BOWES, J., and LANE, J.

MEMORANDUM BY BOWES, J.: FILED MAY 23, 2025

Malcolm Demar Carter appeals from the judgment of sentence of eight

months to three years of incarceration. In this Court, Jasmin Smith, Esquire,

has filed an application to withdraw as Appellant’s counsel and brief pursuant

to Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009). We affirm the judgment of sentence and

grant counsel’s application to withdraw.

Appellant was charged with twelve offenses based upon an alleged

conspiracy with an unidentified co-conspirator to rob the victim’s home while

Appellant engaged in consensual sex with the victim, who met Appellant

online. Ultimately, Appellant pled guilty to one count of theft by unlawful

taking and the Commonwealth withdrew the other charges. Appellant raised

no objection to the voluntariness or validity of his plea during the plea hearing. J-S16019-25

He was sentenced as indicated above on August 22, 2024, and stated no

challenge to his plea or request to withdraw it at the sentencing hearing. Nor

did his post-sentence motion to modify his sentence attack the validity of his

plea.1

This timely appeal followed the court’s denial of the post-sentence

motion. The trial court ordered Appellant to file a Pa.R.A.P. 1925(b)

statement, and Appellant complied, indicating an intention to contest that his

plea was knowing, intelligent, and voluntary. The court thereafter authored a

Pa.R.A.P. 1925(a) opinion suggesting, inter alia, that Appellant waived his

claim by failing to raise it prior to appeal. See Trial Court Opinion, 12/23/24,

at 2-3 (pagination supplied).

As noted, counsel filed in this Court both an Anders brief and a petition

seeking leave to withdraw as counsel. Consequently, the following legal

principles guide our review:

Direct appeal counsel seeking to withdraw under Anders must file a petition averring that, after a conscientious examination of the record, counsel finds the appeal to be wholly frivolous. Counsel must also file an Anders brief setting forth issues that might arguably support the appeal along with any other issues necessary for the effective appellate presentation thereof.

Anders counsel must also provide a copy of the Anders petition and brief to the appellant, advising the appellant of the

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1 Appellant’s post-sentence motion was timely filed on September 3, 2024, as

the tenth day after he was sentenced was Sunday, September 1, and the court was closed the following day for Labor Day. See 1 Pa.C.S. § 1908.

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right to retain new counsel, proceed pro se or raise any additional points worthy of this Court’s attention.

If counsel does not fulfill the aforesaid technical requirements of Anders, this Court will deny the petition to withdraw and remand the case with appropriate instructions (e.g., directing counsel either to comply with Anders or file an advocate’s brief on Appellant’s behalf). By contrast, if counsel’s petition and brief satisfy Anders, we will then undertake our own review of the appeal to determine if it is wholly frivolous. If the appeal is frivolous, we will grant the withdrawal petition and affirm the judgment of sentence. However, if there are non-frivolous issues, we will deny the petition and remand for the filing of an advocate’s brief.

Commonwealth v. Cook, 175 A.3d 345, 348 (Pa.Super. 2017) (cleaned up).

Our Supreme Court has further detailed counsel’s duties as follows:

[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.

Santiago, 978 A.2d at 361.

Upon examination of counsel’s motion to withdraw and Anders brief,

we conclude that counsel has complied with the technical requirements set

forth above.2 As required by Santiago, counsel set forth a history of the case,

referred to an issue that arguably supports the appeal, stated her conclusion

2 Appellant did not file a response to counsel’s petition.

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that the appeal is frivolous, and cited case law. See Anders brief at 6-13.

Therefore, we proceed to an independent review.

The sole issue arguably supporting an appeal cited by Attorney Smith is

whether Appellant’s plea was voluntary. See Anders brief at 5. It is well-

settled that “[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[.]” Commonwealth v. Lincoln, 72 A.3d 606,

609–10 (Pa.Super. 2013) (citing Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i)).

“Failure to employ either measure results in waiver.” Id. at 610.

As detailed above, Appellant failed to timely challenge the voluntariness

of his plea in the trial court. Hence, the issue is waived. See, e.g.,

Commonwealth v. Moore, 307 A.3d 95, 99–100 (Pa.Super. 2023) (holding

challenge to plea was waived because the appellant did not timely seek to

withdraw it in the trial court). Thus, counsel correctly concluded that pursuing

the claim in this appeal would be frivolous.3 See, e.g., Cook, 175 A.3d at

350 (providing that raising waived issues on appeal would be frivolous).

Additionally, our “simple review of the record to ascertain if there

appear[s] on its face to be arguably meritorious issues that counsel,

intentionally or not, missed or misstated[,]” has revealed no additional issues

3 Counsel’s conclusion was not based on waiver, but upon a substantive examination of the plea colloquy. See Anders brief at 9-12. However, since the claim was not preserved for review, we reject it without considering its merits.

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that counsel failed to address.4 Commonwealth v. Dempster, 187 A.3d

266, 272 (Pa.Super. 2018) (en banc). Therefore, we affirm the judgment of

sentence and grant counsel’s petition to withdraw.

Petition of Jasmin Smith, Esquire, to withdraw as counsel granted.

Judgment of sentence affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 5/23/2025

4 We have conducted our independent review mindful of the fact that “upon

entry of a guilty plea, a defendant waives all claims and defenses other than those sounding in the jurisdiction of the court, the validity of the plea, and what has been termed the ‘legality’ of the sentence imposed.” Commonwealth v. Eisenberg, 98 A.3d 1268, 1275 (Pa. 2014).

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