Com. v. Hartman, M.

• Court: Superior Court of Pennsylvania
• Decided: August 19, 2020
• Docket: 1919 MDA 2019
• Status: Unpublished

Opinion

J-S31025-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MELVIN CHARLES HARTMAN : : Appellant : No. 1919 MDA 2019

Appeal from the Judgment of Sentence Entered November 1, 2019 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0004172-2019

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MELVIN C. HARTMAN : : Appellant : No. 1924 MDA 2019

Appeal from the Judgment of Sentence Entered November 1, 2019 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0003820-2019

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MELVIN C. HARTMAN : : Appellant : No. 1925 MDA 2019

Appeal from the Judgment of Sentence Entered November 1, 2019 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0003803-2019

BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E. J-S31025-20

MEMORANDUM BY DUBOW, J.: FILED AUGUST 19, 2020

In this consolidated appeal, Appellant, Melvin Charles Hartman, appeals

from the Judgments of Sentence entered November 1, 2019 in the Lancaster

County Court of Common Pleas after he entered a negotiated guilty plea at

multiple Docket Numbers. Appellant’s counsel, J. Alexander Spayd, Esquire,

has filed an Application to Withdraw as Counsel and an Anders1 brief. Upon

review, we affirm the Judgments of Sentence and grant counsel’s Application

to Withdraw as Counsel.

A detailed recitation of the underlying factual and procedural history is

unnecessary to our disposition. On November 1, 2019, Appellant pleaded

guilty to numerous charges at three different Docket Numbers in exchange for

an aggregate sentence of time-served to 23 months’ incarceration followed by

three years of probation, a sentence below the sentencing guidelines.2

Appellant did not file any post-sentence motions. ____________________________________________

1 Anders v. California, 386 U.S. 738 (1967).

2 At Docket Number 3820-2019, Appellant pleaded guilty to Possession of a Controlled Substance and Possession of Drug Paraphernalia. At Docket Number 3803-2019, Appellant pleaded guilty to two counts of Possession of Weapons of Mass Destruction, and one count each of Persons Not to Possess Firearms, Firearms Not to be Carried Without a License, Possession of a Controlled Substance, Possession of Drug Paraphernalia, Resisting Arrest, and Driving Under Suspension. At Docket Number 4172-2019, Appellant pleaded guilty to Possession of Weapons of Mass Destruction, Risking a Catastrophe, Possessing an Instrument of a Crime, Prohibited Offensive Weapons, Recklessly Endangering Another Person, and two counts of Possession of a Controlled Substance. As the trial court explained, despite the numerous charges, “the Commonwealth was willing to offer some sentences in the

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This timely appeal followed. The trial court ordered Appellant to file a

Pa.R.A.P 1925(b) Statement and on December 13, 2019, Attorney Spayd filed

a Statement of Intent to File Anders/McClendon Brief in Lieu of Statement

of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(c)(4). The trial

court filed a responsive Pa.R.A.P. 1925(a) Opinion.

On March 9, 2020, Attorney Spayd filed an Anders Brief purporting to

challenge the validity of Appellant’s guilty plea. In addition, counsel has filed

an Application for Leave to Withdraw as Counsel. Appellant did not file a

Response to counsel’s Anders Brief.

In order for counsel to withdraw from an appeal, our Supreme Court has

determined that counsel must file a brief pursuant to Anders that: (1)

provides a summary of the procedural history and facts, with citations to the

record; (2) refers to anything in the record that counsel believes arguably

supports the appeal; (3) sets forth counsel’s conclusion that the appeal is

frivolous; and (4) states counsel’s reasons for concluding that the appeal is

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

“Counsel should articulate the relevant facts of record, controlling case law,

____________________________________________

mitigating range due to the pending suppression motions which were not completely lacking in merit. Likewise, [Appellant] recognized that the reduced negotiated sentence was tied to the allegedly illegal search of his vehicle. Both [Appellant] and his attorney assured the [c]ourt that the guilty plea was being entered for the ‘benefit of the bargain,’ and that it was ‘in the best interest of all parties.’” Trial Ct. Op., filed 1/6/20, at 10 (internal citations omitted).

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and/or statutes on point that have led to the conclusion that the appeal is

frivolous.” Id.

Counsel's brief meets the Anders requirements. Additionally, counsel

confirms that he sent Appellant a copy of the Anders Brief and Petition to

Withdraw, as well as a letter explaining to Appellant that he has the right to

retain new counsel, proceed pro se, or to raise any additional points. See

Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014)

(describing notice requirements).

Having found counsel’s technical compliance with Anders, we will

address the substantive issue raised by counsel. In addition, we must 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) (en banc).

It is well-settled that when a defendant enters a guilty plea, that

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. Prieto, 206 A.3d

529, 533-34 (Pa. 2019) (citation and brackets omitted). Instantly, Appellant

purports to challenge the validity of his plea. Anders Br. at 8-10.

“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 within ten days of sentencing.” Commonwealth v.

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Lincoln, 72 A.3d 606, 609-10 (Pa. Super. 2013) (citing Pa.R.Crim.P. 720).

Failure to do so results in waiver. Id.; Commonwealth v. Tareila, 895 A.2d

1266, 1270 n.3 (Pa. Super. 2006).

Here, Appellant did not preserve this challenge at his plea colloquy or

thereafter by motion. Accordingly, he has waived any challenge to the

voluntariness of his plea.

Appellant has waived the only issue he purports to raise on appeal,

which renders pursuing this issue on appeal frivolous. See Commonwealth

v. Tukhi, 149 A.3d 881, 888 (Pa. Super. 2016) (“An issue that is waived is

frivolous.”); Commonwealth v. Kalichak, 943 A.2d 285, 291 (Pa. Super.

2008) (“Having been waived, pursuing this matter on direct appeal is

frivolous.”).

Following our review of the issues purportedly raised by Appellant in

counsel’s Anders Brief, we agree with counsel and conclude that this appeal

is wholly frivolous. In addition, following an independent review of the record,

we discern no arguably meritorious issues that warrant further consideration.

See Dempster, supra at 272. Accordingly, we grant counsel’s Application

to Withdraw as Counsel and affirm Appellant’s Judgment of Sentence.

Application to Withdraw as Counsel granted; Judgment of Sentence

affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 08/19/2020

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