Com. v. King, T.

Opinion

J-S22015-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : THOMAS STUART KING : : Appellant : No. 293 MDA 2021

Appeal from the Judgment of Sentence Entered November 1, 2017 In the Court of Common Pleas of Fulton County Criminal Division at No(s): CP-29-CR-0000070-2016

BEFORE: PANELLA, P.J., McCAFFERY, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED DECEMBER 13, 2021

Thomas Stuart King (King) appeals nunc pro tunc from the judgment of

sentence entered in the Court of Common Pleas of Fulton County on November

1, 2017, following his guilty plea to eight counts of aggravated assault and

one count of indecent exposure. Additionally, King’s court-appointed counsel

seeks to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967).

Because counsel has complied with the requirements of Anders, we grant

counsel leave to withdraw and affirm the judgment of sentence.

On November 1, 2017, King entered a guilty plea to eight counts of

aggravated assault and one count of indecent exposure. That same day, the

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* Retired Senior Judge assigned to the Superior Court. J-S22015-21

court imposed a negotiated sentence of twenty-two and one-half to forty-five

years’ imprisonment. King did not file any post-sentence motions.

On December 1, 2017, King filed a timely notice of appeal, claiming he

was coerced into pleading guilty on the morning of trial. However, we later

dismissed King’s appeal for failure to file a brief. King subsequently filed a pro

se Post-Conviction Relief Act1 (PCRA) petition. Counsel was appointed and

later filed a Finley2 no-merit letter and a petition to withdraw as counsel based

on the untimeliness of the PCRA petition. The PCRA court permitted counsel

to withdraw and later dismissed the PCRA petition. On appeal, we reversed

and remanded for reinstatement of King’s direct appeal rights after finding the

PCRA petition had, in fact, been timely. See Commonwealth v. King, 1703

MDA 2020 (Pa. Super. Dec. 16, 2020) (unpublished memorandum).

On January 6, 2021, the trial court reinstated King’s direct appeal rights

nunc pro tunc and appointed counsel to represent King on appeal. The trial

court gave King 30 days within which to appeal. On February 4, 2021, counsel

filed a motion for an extension of time. See Motion To Extend Time, 2/4/2021.

The trial court granted the extension, giving counsel 30 days to file a notice

1 42 Pa. C.S.A. §§ 9541-9546.

2 Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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of appeal. See Trial Court Order, 2/9/2021,3 at 1. On March 4, 2021, counsel

filed a notice of appeal. On March 26, 2021, counsel filed a concise statement

pursuant to Pa.R.A.P. 1925(b), asserting appellant’s guilty plea was

involuntary and unknowing. Counsel later filed a petition to withdraw with an

attendant Anders brief.

I.

When counsel files an Anders petition and brief, a review thereof is an

essential part of the determination as to whether the appeal is, in fact,

untimely; whether the reviewing court lacks jurisdiction; and whether the

appeal should be entertained or quashed. See Commonwealth v. Millisock,

3 The trial court order granting the extension of time is hand-dated February 5, 2021. However, the order was not time-stamped as filed until February 9, 2021. No one is contending that the order granting the extension was not filed on February 5, 2021, within the 30 days for taking the appeal. Nor is anyone contending that that the appeal is untimely or that we lack jurisdiction over this appeal. However, we note that the trial court, absent a grant of reconsideration of the order within the time for taking the appeal, is without power to reset the time for taking an appeal. See Commonwealth v. Smith, 501 A.2d 273, 275 (Pa. Super. 1985) (“A court may not enlarge the time for filing a notice of appeal as a matter of grace or indulgence.”). Yet, in this case, because the order granting the extension of time to take an appeal was filed within the appeal period and if not granted would have allowed King’s counsel to file a timely one sentence notice of appeal, the granting of the petition fell under the ambit of a court’s “misstatement of the appeal period.” Commonwealth v. Coolbaugh, 770 A.2d 788, 791 (Pa. Super. 2001). In purporting to “grant” King’s petition, the trial court necessarily conveyed, incorrectly, that the appeal period could be extended. See id.; see also Commonwealth v. Anwyll, 482 A.2d 656, 657 (Pa. Super. 1984) (“Given the trial court’s misstatement of the appeal period, appellant’s failure to appeal on time would appear to be the result of a breakdown in the court’s operation.”). Accordingly, we have jurisdiction to hear this appeal.

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873 A.2d 748, 750–52 (Pa. Super 2005) (remanding for an appropriate

Anders brief despite preliminary determinations that the appeal was

untimely).

To withdraw pursuant to Anders, 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 [Anders] brief to the [appellant]; and 3) advise the [appellant] that he or she has the right to retain private counsel or raise additional arguments that the [appellant] deems worthy of the court’s attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en

banc) (citation omitted). With respect to the third requirement of Anders,

counsel inform the appellant of his or her rights in light of counsel’s

withdrawal, and this Court has held that counsel must “attach to their petition

to withdraw a copy of the letter sent to their client advising him or her of their

rights.” Millisock, supra at 752.

An Anders brief must comply with the following requirements:

(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 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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). “[I]f counsel’s

petition and brief satisfy Anders, we will then undertake our own review of

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the appeal to determine if it is wholly frivolous.” Commonwealth v. Wrecks,

931 A.2d 717, 721 (Pa. Super. 2007) (brackets added, citation omitted).

Counsel has complied with Anders’ procedural requirements. Counsel

has provided King with a letter advising him of his rights outlined in Millisock,

which is attached to counsel’s withdrawal petition. Counsel has also

substantially complied with the requirements set forth in Commonwealth v.

Santiago, supra, setting forth the procedural history and addressing the

legal issues before us. We will now proceed to make an independent review

of whether King’s appeal is frivolous.

II.

The sole issue that King makes on appeal is that he was coerced into

entering a guilty plea because the trial court refused his request for additional

time to prepare for trial, leaving him no option but to plead guilty in

accordance with a previous plea offer tendered by the Commonwealth that

would have made the sentence in this case run concurrently with other

sentences for which he was incarcerated.

Initially, we point out that “[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. Lincoln, 72 A.3d 606, 609-10 (Pa. Super.

2013) (citation omitted). “Failure to employ either measure results in waiver.”

Id. at 610.

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Here, King did not file a post-sentence motion and did not raise any

claim regarding the voluntariness of his plea during the plea colloquy.

Moreover, while King sought and was granted reinstatement of his direct

appeal rights, he did not seek reinstatement of his right to file a post-sentence

motion. Therefore, King waived his challenge to his guilty plea by failing to

preserve the argument. Id.

In Commonwealth v. Carrasquillo, 115 A.3d 1284, 1292 (Pa. 2015),

our Supreme Court, breaking with prior precedent, set forth the standards by

which trial courts were to determine if guilty pleas should be withdrawn. It

held that a bare assertion of innocence is no longer a fair and just reason

permitting a pre-sentence withdrawal of a guilty plea. Instead, “a defendant’s

innocence claim must be at least plausible to demonstrate, in and of itself, a

fair and just reason for presentence withdrawal of a plea.” Id. at 1292. It

outlined that the correct inquiry “on consideration of such a withdrawal motion

is whether the accused has made some colorable demonstration, under the

circumstances, such that permitting withdrawal of the plea would promote

fairness and justice.” Id.; see also Commonwealth v. Hvizda, 116 A.3d

1103 (2015) (companion case to Carrasquillo).

Where the request to withdraw a guilty plea before sentencing can be

granted if it does not substantially prejudice the Commonwealth, “[p]ost-

sentence motions for withdrawal are subject to higher scrutiny since courts

strive to discourage entry of guilty pleas as sentence-testing devices. A

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defendant must demonstrate that manifest injustice would result if the court

were to deny his post-sentence motion to withdraw a guilty plea.”

Commonwealth v. Broaden, 980 A.2d 124, 129 (Pa. Super. 2009) (internal

citations and quotations omitted). “[A] manifest injustice occurs when a plea

is not tendered knowingly, intelligently, voluntarily, and understandingly.”

Commonwealth v. Gunter, 771 A.2d 767, 771 (Pa. 2001).

To insure that a guilty plea is knowingly, voluntarily and intelligently

entered, Rule 590 of the Pennsylvania Rules of Criminal Procedure requires

that the court conduct an on-the-record colloquy to ascertain whether a

defendant is aware of his rights and the consequences of his plea. The trial

court conducted a lengthy colloquy, set forth in its opinion, which shows that

King’s plea was not entered into under duress or coercion. As the trial court

found, and with which we agree:

In the instant case, [King] avers that this Court “made an error of law or abused its discretion when it refused King’s request for additional time to prepare for trial.” (Notice of Appeal, at 1). [King] asserts that “he was coerced into entering his guilty pleas and put under sufficient duress as to leave him not [sic] option but to pleas [sic] guilty in accordance with a previous plea offer tendered by the Commonwealth.” (Id.). [King] therefore argues that “his pleas were not knowingly and voluntarily entered.” (Id. at 1-2).

This Court is not persuaded that the averments made by [King] regarding his plea of guilty results in a manifest injustice necessitating correction. Immediately preceding [King’s] entry of a guilty plea, this Court conducted an on-the-record colloquy, eliciting from [King] the information outlined in Pa.R.Crim.P. Rule 590; the responses of [King] clearly indicate that [King] was not only aware of his rights, but also aware of the consequences of his plea. Indeed, [King] agreed he had not been promised

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anything in return for his plea of guilty, acknowledged the permissible range of penalty for each offense, and agreed to the combined sentence that is to run concurrent with the sentence previously imposed upon him at criminal docket 47 of 2016. (See T.P. Guilty Plea and Sentencing, at 15-19). This Court further notes that, in the few instances where [King] employed arguable ambiguous language, this Court further questioned [King] to elicit clear and unequivocal responses.

In his Notice of Appeal, [King] offers no argument or authority to support the proposition that his plea was elicited under duress and therefore merits a finding of manifest justice. Moreover, [King] makes no assertions as to his innocence, nor does he claim the statements he made on the record justifying his guilty plea are false or misleading. (internal citations omitted.)

Accordingly, holding that King’s appeal is wholly frivolous, we grant

counsel’s petition to withdraw and affirm the trial court’s decision.

Petition to withdraw granted. Judgment of sentence affirmed.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/13/2021

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