Com. v. Drakes, M.

• Court: Superior Court of Pennsylvania
• Decided: December 23, 2014
• Docket: 733 EDA 2014
• Status: Unpublished

Opinion

J-S75024-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

MICHAEL F. DRAKES

Appellant No. 733 EDA 2014

Appeal from the Judgment of Sentence January 31, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006408-2013

BEFORE: ALLEN, J., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 23, 2014

Michael F. Drakes appeals from his judgment of sentence imposed on

January 31, 2014 in the Court of Common Pleas of Philadelphia County after

he entered a negotiated guilty plea to one count of retail theft as a

misdemeanor of the first degree. Counsel has petitioned this Court to

withdraw her representation of Drakes pursuant to Anders, McClendon and

Santiago.1 Upon review, we affirm Drakes’ judgment of sentence and grant

counsel’s petition to withdraw.

In order to withdraw pursuant to Anders and McClendon, counsel

must: 1) petition the Court for leave to withdraw, certifying that after a ____________________________________________

1 Anders v. California, 386 U.S. 738 (1967); Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981); and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). J-S75024-14

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 an 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 that the appellant deems worthy of

review. Commonwealth v. Hernandez, 783 A.2d 784, 786 (Pa. Super.

2001). In Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), the

Pennsylvania Supreme Court held that, in order to withdraw under Anders,

counsel must also state his reasons for concluding his client’s appeal is

frivolous.

Instantly, counsel’s petition states that she has made an examination

of the record and concluded the appeal is wholly frivolous. Counsel indicates

that she supplied Drakes with a copy of the brief and a letter explaining his

right to proceed pro se,2 or with newly-retained counsel, and to raise any

other issues he believes might have merit. Counsel also has submitted a

brief, setting out in neutral form two issues of arguable merit and, pursuant

to the dictates of Santiago, explains why she believes the issues to be

frivolous. Thus, counsel has substantially complied with the requirements

for withdrawal.

____________________________________________

2 Drakes has not submitted any additional or supplemental filings to this Court.

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Counsel having satisfied the above requirements, this Court must

conduct its own review of the proceedings and render an independent

judgment as to whether the appeal is, in fact, wholly frivolous.

Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).

On appeal, Drakes challenges the validity of his guilty plea and the

legality of his sentence.

Drakes first claims that his guilty plea was invalid. To be valid, a

guilty plea must be voluntary, knowing and intelligent. Commonwealth v.

Diehl, 61 A.3d 265, 268 (Pa. Super. 2013). A guilty plea colloquy must

include an inquiry into whether: (1) the defendant understands the nature

of the charge to which he is pleading guilty; (2) there is a factual basis for

the plea; (3) the defendant understands that he has the right to a jury trial;

(4) the defendant understands that he is presumed innocent until found

guilty; (5) the defendant is aware of the permissible range of sentences; and

(6) the defendant is aware that the court is not bound by the terms of any

plea agreement unless it accepts the agreement. Commonwealth v.

Shekerko, 639 A.2d 810, 813 (Pa. Super. 1994); see also Pa.R.Crim.P.

590 (comment). In determining whether a defendant’s plea was knowing,

intelligent and voluntary, appellate courts consider the totality of the

circumstances, which include the contents of both the oral and written plea

colloquies. Commonwealth v. Fears, 836 A.2d 52, 64 (Pa. 2003).

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Here, the Honorable Linda Carpenter engaged in an on-the-record

colloquy with Drakes in which she advised him of the nature of the charges

against him, N.T. Guilty Plea, 1/31/14, at 9; the permissible range of

sentences, id.; the factual basis of the plea, id. At 12-13; that he had a

right to a jury trial, id.; that he would be presumed innocent until proven

guilty, id.; that by pleading guilty he would be in violation of his probation,

id. at 10; and that she would be imposing the recommended sentence of

three years’ probation, id. at 11. Moreover, Drakes acknowledged that he

completed and signed a written plea colloquy prior to the hearing. Id. at 6.

Accordingly, Drakes’ plea was entered in a knowing, intelligent and voluntary

manner.

Next, Drakes asserts that his sentence is illegal. Drakes was

sentenced to three years’ probation for one count of retail theft (M1). The

maximum possible sentence for retail theft as a misdemeanor of the first

degree is five years’ imprisonment. See 18 Pa.C.S.A. § 1104. Accordingly,

Drakes’ sentence of three years’ probation was well within the statutory

maximum and, as such, not illegal.

Judgment of sentence affirmed; petition to withdraw as counsel

granted.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/23/2014

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