J-S81006-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA
v.
JULIAN DESHIELDS
Appellant No. 1261 EDA 2016
Appeal from the Judgment of Sentence March 24, 2016 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0001724-2016
BEFORE: BOWES AND MOULTON, JJ., AND STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 22, 2017
Julian DeShields appeals from the judgment of sentence of seven to
twenty-three months incarceration followed by a consecutive period of three
years probation imposed following a nolo contendere plea. Counsel filed a
petition to withdraw from representation and a brief pursuant to Anders v.
California, 386 U.S. 738 (1967) and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009). We affirm and grant counsel’s petition to withdraw.
We rely on the facts from the affidavit of probable cause supporting
the complaint as Appellant stipulated to the affidavit as providing the factual
basis for his plea. On October 15, 2015, homeowners at Ruskin Lane
contacted the Upper Darby Township Police Department to report a burglary.
A neighbor provided surveillance video from a camera pointed towards the
* Former Justice specially assigned to the Superior Court. J-S81006-16
victims’ residence, which revealed two males entering it through a basement
window. The victims were shown still frame images of the males. The
victim’s daughter, Appellant’s former girlfriend, identified the males as
Appellant and his brother. The police confirmed that Appellant, who was
fifteen years old at the time of this incident, was not present in school on
October 15th.
Based on the foregoing investigation, a juvenile delinquency petition
was filed. The Commonwealth later sought transfer to the court of common
pleas, which was granted on March 24, 2016. Appellant tended his nolo
contendere plea that same day, whereupon the judge imposed the
aforementioned sentence, which was recommended by the Commonwealth.
On April 21, 2016, Appellant filed a post-sentence motion challenging
the validity of the guilty plea. The next day, Appellant filed a notice of
appeal.1 In lieu of a Pa.R.A.P. 1925(b) statement of errors complained of on
appeal, counsel filed a Rule 1925(c)(4) statement indicating his intent to file
an Anders brief.
Appellant’s counsel now files a petition to withdraw and accompanying
Anders brief, asserting that there are no non-frivolous issues to be ____________________________________________
1 The notice of appeal was filed by Assistant Public Defender Patrick J. Connors. The motion challenging the plea was filed by Assistant Public Defender James S. Wright, who represented Appellant at the plea. The application to withdraw states that the notice of appeal was filed at Appellant’s request.
-2- J-S81006-16
reviewed. The brief sets forth one issue arguably supporting an appeal:
“Whether [Appellant] entered a knowing, voluntary and intelligent [nolo
contendere] plea given his young age?” Anders brief at 1.
We first must address whether counsel has complied with the
procedural requirements of Anders. Commonwealth v. Cartrette, 83
A.3d 1030 (Pa.Super. 2013) (en banc). Counsel must:
1) petition the court for leave to withdraw stating that, after making a conscientious examination of the record, counsel has determined that the appeal would be frivolous; 2) furnish a copy of the brief to the defendant; and 3) advise the defendant that he or she has the right to retain private counsel or raise additional arguments that the defendant deems worthy of the court's attention.
Id. at 1032 (citation omitted).
Counsel’s petition provides that he has thoroughly reviewed the case
and concluded that this appeal is wholly frivolous. Copies of the petition and
Anders brief were provided to Appellant, and the accompanying letter
informed Appellant of his right to raise additional matters pro se or hire his
own attorney. Thus, we find counsel has complied with the procedural
requirements.
We next address whether the Anders brief complies with the
requirements set forth by our Supreme Court in Santiago, supra:
[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
-3- J-S81006-16
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. The brief fully complies with these four requirements, as it sets
forth the procedural history and relevant facts with citations to the record;
refers to an arguably meritorious ground; concludes that the appeal is
frivolous; and explains why counsel reached that conclusion. Therefore,
counsel has fully complied with the requirements of Anders and Santiago.
We now proceed to examine the issue raised by counsel in the brief.
Counsel frames this issue as one implicating the trial judge’s duties in
accepting a plea. To wit, counsel maintains that there is an issue of
arguable merit as to whether Appellant’s age should have prompted the
judge to engage in a more detailed colloquy to ascertain the voluntariness of
the plea.
Instantly, we note that in terms of its effect upon a case, a plea of
nolo contendere is treated the same as a guilty plea. Commonwealth v.
Leidig, 850 A.2d 743 (Pa.Super. 2004). Before accepting a plea of nolo
contendere, the judge must determine, on the record, “after inquiry of the
defendant that the plea is voluntarily and understandingly tendered.”
Pa.R.Crim.P. 590(A)(3). The Comment delineates the areas of inquiry that,
at a minimum, should be assessed by the trial judge:
-4- J-S81006-16
(1) Does the defendant understand the nature of the charges to which he or she is pleading guilty or nolo contendere?
(2) Is there a factual basis for the plea?
(3) Does the defendant understand that he or she has the right to trial by jury?
(4) Does the defendant understand that he or she is presumed innocent until found guilty?
(5) Is the defendant aware of the permissible range of sentences and/or fines for the offenses charged?
(6) Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement?
(7) Does the defendant understand that the Commonwealth has a right to have a jury decide the degree of guilt if the defendant pleads guilty to murder generally?
Comment, Pa.R.Crim.P. 590. Nothing in the Rule specifies additional
measures that must be taken where the defendant is a juvenile.
Additionally, we note that, in Commonwealth v. Lewis, 708 A.2d
497 (Pa.Super. 1998), we reviewed the challenge by a minor defendant who
pleaded guilty to first-degree murder in exchange for the Commonwealth
agreeing to forego seeking the death penalty.2 Among other claims, the
Free access — add to your briefcase to read the full text and ask questions with AI
J-S81006-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA
v.
JULIAN DESHIELDS
Appellant No. 1261 EDA 2016
Appeal from the Judgment of Sentence March 24, 2016 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0001724-2016
BEFORE: BOWES AND MOULTON, JJ., AND STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 22, 2017
Julian DeShields appeals from the judgment of sentence of seven to
twenty-three months incarceration followed by a consecutive period of three
years probation imposed following a nolo contendere plea. Counsel filed a
petition to withdraw from representation and a brief pursuant to Anders v.
California, 386 U.S. 738 (1967) and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009). We affirm and grant counsel’s petition to withdraw.
We rely on the facts from the affidavit of probable cause supporting
the complaint as Appellant stipulated to the affidavit as providing the factual
basis for his plea. On October 15, 2015, homeowners at Ruskin Lane
contacted the Upper Darby Township Police Department to report a burglary.
A neighbor provided surveillance video from a camera pointed towards the
* Former Justice specially assigned to the Superior Court. J-S81006-16
victims’ residence, which revealed two males entering it through a basement
window. The victims were shown still frame images of the males. The
victim’s daughter, Appellant’s former girlfriend, identified the males as
Appellant and his brother. The police confirmed that Appellant, who was
fifteen years old at the time of this incident, was not present in school on
October 15th.
Based on the foregoing investigation, a juvenile delinquency petition
was filed. The Commonwealth later sought transfer to the court of common
pleas, which was granted on March 24, 2016. Appellant tended his nolo
contendere plea that same day, whereupon the judge imposed the
aforementioned sentence, which was recommended by the Commonwealth.
On April 21, 2016, Appellant filed a post-sentence motion challenging
the validity of the guilty plea. The next day, Appellant filed a notice of
appeal.1 In lieu of a Pa.R.A.P. 1925(b) statement of errors complained of on
appeal, counsel filed a Rule 1925(c)(4) statement indicating his intent to file
an Anders brief.
Appellant’s counsel now files a petition to withdraw and accompanying
Anders brief, asserting that there are no non-frivolous issues to be ____________________________________________
1 The notice of appeal was filed by Assistant Public Defender Patrick J. Connors. The motion challenging the plea was filed by Assistant Public Defender James S. Wright, who represented Appellant at the plea. The application to withdraw states that the notice of appeal was filed at Appellant’s request.
-2- J-S81006-16
reviewed. The brief sets forth one issue arguably supporting an appeal:
“Whether [Appellant] entered a knowing, voluntary and intelligent [nolo
contendere] plea given his young age?” Anders brief at 1.
We first must address whether counsel has complied with the
procedural requirements of Anders. Commonwealth v. Cartrette, 83
A.3d 1030 (Pa.Super. 2013) (en banc). Counsel must:
1) petition the court for leave to withdraw stating that, after making a conscientious examination of the record, counsel has determined that the appeal would be frivolous; 2) furnish a copy of the brief to the defendant; and 3) advise the defendant that he or she has the right to retain private counsel or raise additional arguments that the defendant deems worthy of the court's attention.
Id. at 1032 (citation omitted).
Counsel’s petition provides that he has thoroughly reviewed the case
and concluded that this appeal is wholly frivolous. Copies of the petition and
Anders brief were provided to Appellant, and the accompanying letter
informed Appellant of his right to raise additional matters pro se or hire his
own attorney. Thus, we find counsel has complied with the procedural
requirements.
We next address whether the Anders brief complies with the
requirements set forth by our Supreme Court in Santiago, supra:
[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
-3- J-S81006-16
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. The brief fully complies with these four requirements, as it sets
forth the procedural history and relevant facts with citations to the record;
refers to an arguably meritorious ground; concludes that the appeal is
frivolous; and explains why counsel reached that conclusion. Therefore,
counsel has fully complied with the requirements of Anders and Santiago.
We now proceed to examine the issue raised by counsel in the brief.
Counsel frames this issue as one implicating the trial judge’s duties in
accepting a plea. To wit, counsel maintains that there is an issue of
arguable merit as to whether Appellant’s age should have prompted the
judge to engage in a more detailed colloquy to ascertain the voluntariness of
the plea.
Instantly, we note that in terms of its effect upon a case, a plea of
nolo contendere is treated the same as a guilty plea. Commonwealth v.
Leidig, 850 A.2d 743 (Pa.Super. 2004). Before accepting a plea of nolo
contendere, the judge must determine, on the record, “after inquiry of the
defendant that the plea is voluntarily and understandingly tendered.”
Pa.R.Crim.P. 590(A)(3). The Comment delineates the areas of inquiry that,
at a minimum, should be assessed by the trial judge:
-4- J-S81006-16
(1) Does the defendant understand the nature of the charges to which he or she is pleading guilty or nolo contendere?
(2) Is there a factual basis for the plea?
(3) Does the defendant understand that he or she has the right to trial by jury?
(4) Does the defendant understand that he or she is presumed innocent until found guilty?
(5) Is the defendant aware of the permissible range of sentences and/or fines for the offenses charged?
(6) Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement?
(7) Does the defendant understand that the Commonwealth has a right to have a jury decide the degree of guilt if the defendant pleads guilty to murder generally?
Comment, Pa.R.Crim.P. 590. Nothing in the Rule specifies additional
measures that must be taken where the defendant is a juvenile.
Additionally, we note that, in Commonwealth v. Lewis, 708 A.2d
497 (Pa.Super. 1998), we reviewed the challenge by a minor defendant who
pleaded guilty to first-degree murder in exchange for the Commonwealth
agreeing to forego seeking the death penalty.2 Among other claims, the
appellant asserted that refusing to permit him the opportunity to withdraw
his plea was a manifest injustice because his legal guardian was not present ____________________________________________
2 This case predates the United States Supreme Court decision in Roper v. Simmons, 543 U.S. 551 (2005), which bars the execution of individuals who were under eighteen years old when they committed their crimes.
-5- J-S81006-16
to aid him in his decision to plead guilty. Lewis likened his situation to that
of a juvenile waiving his rights under Miranda v. Arizona, 384 U.S. 436
(1966). See In re V.C., 66 A.3d 341, 351 (Pa.Super. 2013) (presence or
absence of interested adult is one factor to consider in determining whether
juvenile’s waiver of Miranda rights is voluntary). We disagreed, observing
that “The crucial distinction between deciding to plead guilty and deciding to
waive Miranda rights is that, at the guilty plea stage the juvenile is
represented by counsel whose job is to ensure that his client voluntarily
waives his rights.” Lewis, supra at 503, n.7. The same logic applies
equally herein, where counsel was available to assist Appellant and ensure
that the plea was a voluntary exercise of his rights.
Appellant’s counsel suggests that the trial judge should assume the
responsibility of conducting a more probing and searching inquiry when
accepting a guilty plea from a juvenile. However, for a plea to be
constitutionally valid, “the guilty plea colloquy must affirmatively show that
the defendant understood what the plea connoted and its consequences.”
Commonwealth v. Eichinger, 108 A.3d 821, 832 (Pa. 2014). Our review
of the guilty plea hearing transcript demonstrates that the trial judge
followed the requirements set forth by Pa.R.Crim.P. 590. Appellant also
completed an extensive guilty plea colloquy form, and answered in the
negative when the trial court specifically asked if he had any questions of
Attorney Wright or the court. These procedural safeguards ensured to the
-6- J-S81006-16
judge’s satisfaction that the plea was knowing, intelligent, and voluntary.
Additionally, Appellant did not raise any additional matters in response to
counsel’s application to withdraw. Thus, there is nothing of record to
indicate the plea was involuntary3 in some capacity, and he would bear the
burden of proving involuntariness. See Commonwealth v. Willis, 68 A.3d
997, 1002 (Pa.Super. 2013). Therefore, this issue is wholly frivolous.
We have conducted an independent review of the record, as required
by Commonwealth v. Flowers, 113 A.3d 1246, 1249 (Pa.Super. 2015),
and have concluded that there are no preserved non-frivolous issues that
can be raised in this appeal. Hence, we concur with counsel's conclusion
that this appeal is wholly frivolous and grant his application to withdraw.
Petition of Patrick J. Connors, Esquire to withdraw as counsel is
granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 2/22/2017 ____________________________________________
3 The motion to withdraw the guilty plea stated, “That subsequent to said plea, documentation was provided to defendant tending to support his claim of innocence in this matter.” The motion does not elaborate on this purported documentation, and the Notice of Appeal was filed the next day.
-7- J-S81006-16
-8-