J-S65022-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MICHAEL ALLYN HARRINGTON : : Appellant : No. 930 MDA 2019
Appeal from the Judgment of Sentence Entered, May 13, 2019, in the Court of Common Pleas of Bradford County, Criminal Division at No(s): CP-08-CR-0000797-2018.
BEFORE: PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED JANUARY 27, 2020
Michael Allyn Harington appeals from the judgment of sentence imposed
following his plea of nolo contendere to possession of drug paraphernalia.
Additionally, Harrington’s court-appointed counsel, Patrick Lee Beirne,
Esquire, has filed a petition to withdraw as counsel and an accompanying brief
pursuant to Anders v. California, 386 U.S. 738, 744 (1967) (hereinafter the
“Anders Brief”). We grant Attorney Beirne’s petition, and affirm Harrington’s
judgment of sentence.
The facts underlying the instant appeal are as follows. On October 24,
2018, police initiated a traffic stop when they observed Harrington operating
a vehicle with plates that were expired and registered to another vehicle.
____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S65022-19
Harrington attempted to elude police, but was apprehended. In the vehicle,
officers found a glass smoking pipe and a container of a white powdery
substance, which Harrington and his passenger identified as
methamphetamine. Harrington also admitted to smoking methamphetamine
earlier in the day. Police conducted a driver’s license check which revealed
that Harrington’s operating privileges were suspended. Police additionally
determined that Harrington was not the owner of the vehicle he was driving,
and did not have permission to possess or drive it. Police arrested Harrington
and charged him with multiple drug and vehicle code violations. On March
14, 2019, pursuant to an agreement with the Commonwealth, Harrington
entered a plea of nolo contendere to one count of possession of drug
paraphernalia. The remaining eight counts were nolle prossed. The trial court
ordered a presentence investigation report (“PSI”).
On May 13, 2019, the court conducted a sentencing hearing. The
prosecutor indicated that, pursuant to the terms of the plea agreement,
Harrington should be sentenced to a time-served minimum sentence (eighty-
six days), followed by supervision. See N.T. Sentencing, 5/13/18, at 1. At
the conclusion of the hearing, the trial court imposed a sentence of eighty-six
days to one year incarceration, credited Harrington with eighty-six days of
time served, and immediately paroled him. The trial court also imposed terms
of supervision. Harrington thereafter filed a timely post-sentence motion to
modify his sentence, which the trial court denied. Harrington filed a timely
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notice of appeal. The trial court did not order Harrington to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal; however, the
trial court authored a Pa.R.A.P. 1925(a) opinion. In this Court, Attorney
Beirne filed a petition to withdraw as counsel and an Anders brief. Harrington
did not file a response to the petition to withdraw or the Anders brief.
“When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super. 2010)
(citation omitted). Pursuant to Anders, when counsel believes an appeal is
frivolous and wishes to withdraw from representation, counsel must do the
following:
(1) petition the court for leave to withdraw stating that after making a conscientious examination of the record, counsel has determined the appeal would be frivolous; (2) file a brief referring to any issues that might arguably support the appeal, but which does not resemble a no-merit letter; and (3) furnish a copy of the brief to the defendant and advise him of his right to retain new counsel, proceed pro se, or raise any additional points he deems worthy of this Court’s attention.
Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006)
(citation omitted). In Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009), our Supreme Court addressed the second requirement of Anders, i.e.,
the contents of an Anders brief, and required that the brief:
(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;
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(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. Once counsel has satisfied the Anders
requirements, it is then this Court’s responsibility “to conduct a simple review
of the record to ascertain if there appear on its face to be arguably meritorious
issues that counsel, intentionally or not, missed or misstated.”
Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018).
Here, Attorney Beirne has substantially complied with each of the
requirements of Anders. Attorney Beirne indicates that he conscientiously
examined the record and determined that an appeal would be frivolous.
Further, Attorney Beirne’s Anders brief substantially comports with the
requirements set forth by the Supreme Court of Pennsylvania in Santiago.
Finally, the record includes a copy of the letter that Attorney Beirne sent to
Harrington, advising him of his right to proceed pro se or retain alternate
counsel and file additional claims, and stating Attorney Beirne’s intention to
seek permission to withdraw. Accordingly, Attorney Beirne has complied with
the procedural requirements for withdrawing from representation, and we will
conduct an independent review to determine whether Harrington’s appeal is
wholly frivolous.
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In the Anders Brief, Attorney Beirne raises the following discretionary
sentencing issue for our review: “Was the sentence imposed by the sentencing
court excessive?” Anders Brief at 3. In discussing this issue, Attorney Beirne
indicates his belief that this claim is frivolous because (1) the sentence
imposed complies with the negotiated plea agreement; (2) the sentence falls
within the standard range of the sentencing guidelines; and (3) when imposing
the sentence, the trial court had the benefit of a PSI.
Harrington entered a nolo contendere plea, which has the same effect
as a guilty plea for purposes of sentencing and is considered a conviction. See
Commonwealth v. Lewis, 79 A.2d 1227 (Pa. Super. 2002). Notably, upon
entry of a negotiated guilty plea, a defendant waives all claims and defenses
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J-S65022-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MICHAEL ALLYN HARRINGTON : : Appellant : No. 930 MDA 2019
Appeal from the Judgment of Sentence Entered, May 13, 2019, in the Court of Common Pleas of Bradford County, Criminal Division at No(s): CP-08-CR-0000797-2018.
BEFORE: PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED JANUARY 27, 2020
Michael Allyn Harington appeals from the judgment of sentence imposed
following his plea of nolo contendere to possession of drug paraphernalia.
Additionally, Harrington’s court-appointed counsel, Patrick Lee Beirne,
Esquire, has filed a petition to withdraw as counsel and an accompanying brief
pursuant to Anders v. California, 386 U.S. 738, 744 (1967) (hereinafter the
“Anders Brief”). We grant Attorney Beirne’s petition, and affirm Harrington’s
judgment of sentence.
The facts underlying the instant appeal are as follows. On October 24,
2018, police initiated a traffic stop when they observed Harrington operating
a vehicle with plates that were expired and registered to another vehicle.
____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S65022-19
Harrington attempted to elude police, but was apprehended. In the vehicle,
officers found a glass smoking pipe and a container of a white powdery
substance, which Harrington and his passenger identified as
methamphetamine. Harrington also admitted to smoking methamphetamine
earlier in the day. Police conducted a driver’s license check which revealed
that Harrington’s operating privileges were suspended. Police additionally
determined that Harrington was not the owner of the vehicle he was driving,
and did not have permission to possess or drive it. Police arrested Harrington
and charged him with multiple drug and vehicle code violations. On March
14, 2019, pursuant to an agreement with the Commonwealth, Harrington
entered a plea of nolo contendere to one count of possession of drug
paraphernalia. The remaining eight counts were nolle prossed. The trial court
ordered a presentence investigation report (“PSI”).
On May 13, 2019, the court conducted a sentencing hearing. The
prosecutor indicated that, pursuant to the terms of the plea agreement,
Harrington should be sentenced to a time-served minimum sentence (eighty-
six days), followed by supervision. See N.T. Sentencing, 5/13/18, at 1. At
the conclusion of the hearing, the trial court imposed a sentence of eighty-six
days to one year incarceration, credited Harrington with eighty-six days of
time served, and immediately paroled him. The trial court also imposed terms
of supervision. Harrington thereafter filed a timely post-sentence motion to
modify his sentence, which the trial court denied. Harrington filed a timely
-2- J-S65022-19
notice of appeal. The trial court did not order Harrington to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal; however, the
trial court authored a Pa.R.A.P. 1925(a) opinion. In this Court, Attorney
Beirne filed a petition to withdraw as counsel and an Anders brief. Harrington
did not file a response to the petition to withdraw or the Anders brief.
“When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super. 2010)
(citation omitted). Pursuant to Anders, when counsel believes an appeal is
frivolous and wishes to withdraw from representation, counsel must do the
following:
(1) petition the court for leave to withdraw stating that after making a conscientious examination of the record, counsel has determined the appeal would be frivolous; (2) file a brief referring to any issues that might arguably support the appeal, but which does not resemble a no-merit letter; and (3) furnish a copy of the brief to the defendant and advise him of his right to retain new counsel, proceed pro se, or raise any additional points he deems worthy of this Court’s attention.
Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006)
(citation omitted). In Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009), our Supreme Court addressed the second requirement of Anders, i.e.,
the contents of an Anders brief, and required that the brief:
(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- J-S65022-19
(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. Once counsel has satisfied the Anders
requirements, it is then this Court’s responsibility “to conduct a simple review
of the record to ascertain if there appear on its face to be arguably meritorious
issues that counsel, intentionally or not, missed or misstated.”
Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018).
Here, Attorney Beirne has substantially complied with each of the
requirements of Anders. Attorney Beirne indicates that he conscientiously
examined the record and determined that an appeal would be frivolous.
Further, Attorney Beirne’s Anders brief substantially comports with the
requirements set forth by the Supreme Court of Pennsylvania in Santiago.
Finally, the record includes a copy of the letter that Attorney Beirne sent to
Harrington, advising him of his right to proceed pro se or retain alternate
counsel and file additional claims, and stating Attorney Beirne’s intention to
seek permission to withdraw. Accordingly, Attorney Beirne has complied with
the procedural requirements for withdrawing from representation, and we will
conduct an independent review to determine whether Harrington’s appeal is
wholly frivolous.
-4- J-S65022-19
In the Anders Brief, Attorney Beirne raises the following discretionary
sentencing issue for our review: “Was the sentence imposed by the sentencing
court excessive?” Anders Brief at 3. In discussing this issue, Attorney Beirne
indicates his belief that this claim is frivolous because (1) the sentence
imposed complies with the negotiated plea agreement; (2) the sentence falls
within the standard range of the sentencing guidelines; and (3) when imposing
the sentence, the trial court had the benefit of a PSI.
Harrington entered a nolo contendere plea, which has the same effect
as a guilty plea for purposes of sentencing and is considered a conviction. See
Commonwealth v. Lewis, 79 A.2d 1227 (Pa. Super. 2002). Notably, upon
entry of a negotiated 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 the legality of the sentence imposed. Commonwealth v. Jabby,
200 A.3d 500, 505 (Pa. Super. 2018).
Here, the record reflects that Harrington’s plea was negotiated. In
exchange for his nolo contendere plea to one count of possession of drug
paraphernalia, the Commonwealth agreed to dismiss the remaining eight
charges filed against him, and to a time served minimum sentence (eighty-
six days), followed by a period of supervision. See N.T. Sentencing, 5/13/19,
at 1-2, 6-7. The trial court accepted Harrington’s plea and imposed the
sentence he agreed to receive. Having entered a valid negotiated plea, and
received the agreed-upon sentence, Harrington cannot challenge the
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discretionary aspects of his sentence. See Commonwealth v. Baney, 860
A.2d 127, 131 (Pa. Super. 2004); see also Commonwealth v. Reichle, 589
A.2d 1140, 1141 (Pa. Super. 1991) (“Where the plea agreement contains a
negotiated sentence which is accepted and imposed by the sentencing court,
there is no authority to permit a challenge to the discretionary aspects of that
sentence.”); Commonwealth v. Coles, 530 A.2d 453, 458 (Pa. Super. 1987)
(observing that permitting a discretionary appeal following the entry of a
negotiated plea would undermine the designs and goals of plea bargaining,
and “would make a sham of the negotiated plea process”). Therefore, we
agree with Attorney Bierne’s assessment that Harrington’s excessiveness
claim is, in fact, wholly frivolous.
As required by Anders, we have independently reviewed the record in
order to determine whether there are any non-frivolous issues present in this
case. Our independent review of the record discloses no other non-frivolous
issues that Harrington could raise that his counsel overlooked. Dempster,
supra. The record of the case demonstrates no jurisdictional defects in the
Bradford County Court of Common Pleas. There is no indication in the record
that Harrington’s plea was not entered knowingly, voluntarily, and
intelligently.1 Finally, Harrington received a legal sentence.
1 The certified record does not contain a written plea colloquy. The trial court conducted a plea hearing on March 14, 2019. However, Harrington did not request that the proceedings be transcribed. See Pa.R.A.P. 1911; see also
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Having concluded that there are no meritorious issues, we grant
Attorney Bierne’s petition to withdraw as counsel, and affirm the judgment of
sentence.
Petition to withdraw as counsel granted. Judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 01/27/2020
Commonwealth v. Steward, 775 A.2d 819, 833 (Pa. Super. 2001) (noting that it was not the responsibility of the trial court to order the notes of transcript; but, rather, it is the responsibility of the appellant to order all transcripts necessary to the disposition of his appeal). Thus, our independent review is limited by the absence of the notes of testimony from the plea hearing. Nevertheless, the trial court indicted its finding that Harrington’s plea was made knowingly, intelligently, and voluntarily. See Order, 3/22/19, at 1.
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