J-S19027-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DAQUAWN BASHIRI KING : : Appellant : No. 1661 MDA 2022
Appeal from the Judgment of Sentence Entered October 24, 2022 In the Court of Common Pleas of Schuylkill County Criminal Division at No(s): CP-54-CR-0001487-2020
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and SULLIVAN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED: JUNE 4, 2024
Daquawn Bashiri King appeals from the judgment of sentence entered
following his convictions for violations of the Controlled Substance, Drug,
Device and Cosmetic Act and his plea of nolo contendere to violations of the
Uniform Firearms Act. King has submitted a pro se request for the
appointment of new counsel. King’s counsel (“Counsel”) has submitted an
Anders1 brief and Motion to Withdraw. We deny King’s pro se motion, grant
Counsel’s motion, and affirm the judgment of sentence.
According to the affidavit of probable cause, a police officer on patrol
came across an incorrectly parked vehicle that was still running and had its
lights on. The officer saw that there was a silver handgun sitting in the center
console. King exited a nearby building and admitted that he had been driving
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1 Anders v. California, 386 U.S. 738 (1967). J-S19027-23
the vehicle but denied that the firearm belonged to him. King consented to a
search of the vehicle, and the officer recovered several marijuana cigarettes,
two marijuana grinders, and two white wax baggies containing a white
powdery substance. See Affidavit, 7/3/20, at 1.
Following a trial, the jury found King guilty of possession of a controlled
substance (fentanyl) and possession of drug paraphernalia.2 The court found
King guilty of possession of a small amount of marijuana. 3 However, the jury
was deadlocked on two other charges: persons not to possess firearms, and
firearms not to be carried without a license.4 The court declared a mistrial on
the firearms charges. On the date of the rescheduled trial, King entered a plea
of nolo contendere to those charges, as part of a plea agreement. The court
sentenced him to an aggregate term of seven to 15 years’ incarceration, in
accordance with the plea agreement. King did not file any post-sentence
motions but filed a notice of appeal.
King’s previous appellate counsel filed several defective motions to
withdraw. We denied these motions and remanded the case on September 19,
2023, December 1, 2023, and January 22, 2024, with the latter order directing
the trial court to appoint new counsel. In the interim, on January 11, 2024,
King submitted a pro se response to this Court, requesting the appointment
2 35 P.S. §§ 780-113(a)(16) and (a)(32), respectively.
3 35 P.S. § 780-113(a)(31)(i).
4 18 Pa.C.S.A. §§ 6105(a)(1) and 6106(a)(1), respectively.
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of new counsel. As we subsequently remanded the matter for the appointment
of new counsel, we hereby deny King’s pro se motion as moot.
The court appointed Counsel on January 24, 2024. Counsel filed a
statement of her intent to file an Anders brief. See Pa.R.A.P. 1925(c)(4). She
appended to her statement some of the documents King sent to her and to
his previous counsel in support of his appeal.
Before assessing the appeal on the merits, we must pass on Counsel’s
request to withdraw. Commonwealth v. Goodwin, 928 A.2d 287, 290
(Pa.Super. 2007) (en banc). Counsel seeking to withdraw pursuant to Anders
must author a brief that
(1) provide[s] a summary of the procedural history and facts, with citations to the record; (2) refer[s] to anything in the record that counsel believes arguably supports the appeal; (3) set[s] forth counsel’s conclusion that the appeal is frivolous; and (4) state[s] 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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). In addition to
filing an Anders brief, 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.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en
banc).
-3- J-S19027-23
Counsel has complied with the foregoing requirements. Her Anders
brief provides a procedural history of the case, with citations to the record;
sets forth King’s desire to withdraw his plea of nolo contendere; and explains
her legal conclusion that, following her review of King’s claim and the case
file, the appeal is wholly frivolous. Counsel attached to her motion to withdraw
the letter she sent to King advising him of his immediate right to proceed pro
se or through new counsel and enclosing both a copy of her motion and the
Anders brief. We therefore turn to our own review of the case to determine
whether the appeal is wholly frivolous. Goodwin, 928 A.2d at 291.
The Anders brief identifies a sole issue: “Whether [King’s] nolo
contendere plea was knowing, voluntary, intelligent, and understanding at the
time of entry of [the] plea?” Anders Br. at 4.
Although Counsel rejects this issue on the merits, we find it frivolous
because it is waived, as King did not move to withdraw his plea in the trial
court. See Commonwealth v. Moore, 307 A.3d 95, 99 (Pa.Super. 2023)
(stating that failure to either object during the plea colloquy or file a motion
to withdraw the plea within ten days of sentencing waives on appeal challenge
to the plea).
King has not filed any response to Counsel’s motion to withdraw and the
Anders brief, despite Counsel having advised King of his immediate right to
raise additional issues to this Court pro se or with the assistance of other
counsel. Still, we glean from the pro se documents that Counsel attached to
her Rule 1925(c)(4) statement that King wanted appellate review of the
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following claims: (1) ineffective assistance of trial counsel for his having failed
to move for suppression, (2) ineffective assistance of trial counsel for his
having failed to object to certain trial testimony, (3) ineffective assistance of
trial counsel for his having failed to consult with King to discuss strategy, (4)
ineffective assistance of trial counsel for his having advised King to enter a
plea, and (5) ineffective assistance of trial counsel for his having refused
King’s same-day request to file a motion to withdraw his plea. See Pa.R.A.P.
1925(c)(4) statement, 2/22/24, Ex. A, at 1-2.
“Generally, a criminal defendant may not assert claims of ineffective
assistance of counsel on direct appeal.” Commonwealth v. James, 297 A.3d
Free access — add to your briefcase to read the full text and ask questions with AI
J-S19027-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DAQUAWN BASHIRI KING : : Appellant : No. 1661 MDA 2022
Appeal from the Judgment of Sentence Entered October 24, 2022 In the Court of Common Pleas of Schuylkill County Criminal Division at No(s): CP-54-CR-0001487-2020
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and SULLIVAN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED: JUNE 4, 2024
Daquawn Bashiri King appeals from the judgment of sentence entered
following his convictions for violations of the Controlled Substance, Drug,
Device and Cosmetic Act and his plea of nolo contendere to violations of the
Uniform Firearms Act. King has submitted a pro se request for the
appointment of new counsel. King’s counsel (“Counsel”) has submitted an
Anders1 brief and Motion to Withdraw. We deny King’s pro se motion, grant
Counsel’s motion, and affirm the judgment of sentence.
According to the affidavit of probable cause, a police officer on patrol
came across an incorrectly parked vehicle that was still running and had its
lights on. The officer saw that there was a silver handgun sitting in the center
console. King exited a nearby building and admitted that he had been driving
____________________________________________
1 Anders v. California, 386 U.S. 738 (1967). J-S19027-23
the vehicle but denied that the firearm belonged to him. King consented to a
search of the vehicle, and the officer recovered several marijuana cigarettes,
two marijuana grinders, and two white wax baggies containing a white
powdery substance. See Affidavit, 7/3/20, at 1.
Following a trial, the jury found King guilty of possession of a controlled
substance (fentanyl) and possession of drug paraphernalia.2 The court found
King guilty of possession of a small amount of marijuana. 3 However, the jury
was deadlocked on two other charges: persons not to possess firearms, and
firearms not to be carried without a license.4 The court declared a mistrial on
the firearms charges. On the date of the rescheduled trial, King entered a plea
of nolo contendere to those charges, as part of a plea agreement. The court
sentenced him to an aggregate term of seven to 15 years’ incarceration, in
accordance with the plea agreement. King did not file any post-sentence
motions but filed a notice of appeal.
King’s previous appellate counsel filed several defective motions to
withdraw. We denied these motions and remanded the case on September 19,
2023, December 1, 2023, and January 22, 2024, with the latter order directing
the trial court to appoint new counsel. In the interim, on January 11, 2024,
King submitted a pro se response to this Court, requesting the appointment
2 35 P.S. §§ 780-113(a)(16) and (a)(32), respectively.
3 35 P.S. § 780-113(a)(31)(i).
4 18 Pa.C.S.A. §§ 6105(a)(1) and 6106(a)(1), respectively.
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of new counsel. As we subsequently remanded the matter for the appointment
of new counsel, we hereby deny King’s pro se motion as moot.
The court appointed Counsel on January 24, 2024. Counsel filed a
statement of her intent to file an Anders brief. See Pa.R.A.P. 1925(c)(4). She
appended to her statement some of the documents King sent to her and to
his previous counsel in support of his appeal.
Before assessing the appeal on the merits, we must pass on Counsel’s
request to withdraw. Commonwealth v. Goodwin, 928 A.2d 287, 290
(Pa.Super. 2007) (en banc). Counsel seeking to withdraw pursuant to Anders
must author a brief that
(1) provide[s] a summary of the procedural history and facts, with citations to the record; (2) refer[s] to anything in the record that counsel believes arguably supports the appeal; (3) set[s] forth counsel’s conclusion that the appeal is frivolous; and (4) state[s] 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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). In addition to
filing an Anders brief, 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.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en
banc).
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Counsel has complied with the foregoing requirements. Her Anders
brief provides a procedural history of the case, with citations to the record;
sets forth King’s desire to withdraw his plea of nolo contendere; and explains
her legal conclusion that, following her review of King’s claim and the case
file, the appeal is wholly frivolous. Counsel attached to her motion to withdraw
the letter she sent to King advising him of his immediate right to proceed pro
se or through new counsel and enclosing both a copy of her motion and the
Anders brief. We therefore turn to our own review of the case to determine
whether the appeal is wholly frivolous. Goodwin, 928 A.2d at 291.
The Anders brief identifies a sole issue: “Whether [King’s] nolo
contendere plea was knowing, voluntary, intelligent, and understanding at the
time of entry of [the] plea?” Anders Br. at 4.
Although Counsel rejects this issue on the merits, we find it frivolous
because it is waived, as King did not move to withdraw his plea in the trial
court. See Commonwealth v. Moore, 307 A.3d 95, 99 (Pa.Super. 2023)
(stating that failure to either object during the plea colloquy or file a motion
to withdraw the plea within ten days of sentencing waives on appeal challenge
to the plea).
King has not filed any response to Counsel’s motion to withdraw and the
Anders brief, despite Counsel having advised King of his immediate right to
raise additional issues to this Court pro se or with the assistance of other
counsel. Still, we glean from the pro se documents that Counsel attached to
her Rule 1925(c)(4) statement that King wanted appellate review of the
-4- J-S19027-23
following claims: (1) ineffective assistance of trial counsel for his having failed
to move for suppression, (2) ineffective assistance of trial counsel for his
having failed to object to certain trial testimony, (3) ineffective assistance of
trial counsel for his having failed to consult with King to discuss strategy, (4)
ineffective assistance of trial counsel for his having advised King to enter a
plea, and (5) ineffective assistance of trial counsel for his having refused
King’s same-day request to file a motion to withdraw his plea. See Pa.R.A.P.
1925(c)(4) statement, 2/22/24, Ex. A, at 1-2.
“Generally, a criminal defendant may not assert claims of ineffective
assistance of counsel on direct appeal.” Commonwealth v. James, 297 A.3d
755, 760 (Pa.Super.), appeal denied, 309 A.3d 691 (Pa. 2023). “Instead, such
claims are to be deferred to [Post Conviction Relief Act (“PCRA”)] review.” Id.
There are three exceptions: (1) where “there are extraordinary circumstances
in which trial counsel’s ineffectiveness is apparent from the record and
meritorious to the extent that immediate consideration best serves the
interests of justice”; (2) where “there is good cause shown, and the defendant
knowingly and expressly waives his entitlement to seek subsequent PCRA
review of his conviction and sentence;” and (3) “where the defendant is
statutorily precluded from obtaining subsequent PCRA review.” Id. at 761
(internal quotation marks omitted).5 ____________________________________________
5 In the PCRA context, a petitioner may raise claims of a first PCRA counsel’s
ineffectiveness on direct appeal if that is the earliest opportunity to do so. See James, 297 A.3d at 761 n.3. Although King is represented by new counsel, this is not an appeal from the denial of PCRA relief. See id.
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None of these exceptions apply to King’s instant ineffectiveness claims.
None of these claims are obviously meritorious on the face of the record, King
has not waived his right to seek PCRA relief, and he is not statutorily precluded
from filing a timely PCRA petition. We therefore have no basis on which to
engage in review of his ineffectiveness claims on direct appeal.
After an independent review of the record, we perceive no issue that
contradicts Counsel’s conclusion that the appeal is wholly frivolous. We
therefore grant Counsel’s request to withdraw and affirm the judgment of
sentence.
Judgment of sentence affirmed. Motion to withdraw granted. Pro se
motion for new counsel denied.
Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 06/04/2024
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