Com. v. Miller, M.

• Court: Superior Court of Pennsylvania
• Decided: October 21, 2022
• Docket: 308 WDA 2022
• Status: Unpublished

Opinion

J-S25039-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : MARIA BETH MILLER : : Appellant : No. 308 WDA 2022

Appeal from the Judgment of Sentence Entered February 17, 2022 In the Court of Common Pleas of Blair County Criminal Division at No(s): CP-07-CR-0002478-2021

BEFORE: BENDER, P.J.E., DUBOW, J., and KING, J.

MEMORANDUM BY KING, J.: FILED: OCTOBER 21, 2022

Appellant, Maria Beth Miller, appeals from the judgment of sentence

entered in the Blair County Court of Common Pleas, following her negotiated

guilty plea to terroristic threats and disorderly conduct.1 We affirm and grant

counsel’s application to withdraw.

The relevant facts and procedural history of this appeal are as follows.

During the early morning hours of October 7, 2021, Pennsylvania State Police

Troopers Sneath and Yost responded to a report of “shots fired” in the parking

lot of Dilly’s Bar in Greenfield Township. The report indicated that the shooter

was a woman driving a red Jeep Cherokee. Subsequent investigation revealed

that Appellant was the shooter, and she fired the shots after threatening to

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1 18 Pa.C.S.A. §§ 2706(a)(1), 5503(a)(4). J-S25039-22

kill another bar patron. That same day, the troopers took Appellant into

custody, and she provided the following statement: “I left, got into my car,

and was very upset and took my pistol and shot it at the ground. No one was

outside.” (Affidavit of Probable Cause, dated 10/7/21, at 2).

The Commonwealth filed a criminal information charging Appellant with

two counts of terroristic threats and one count each of recklessly endangering

another person, disorderly conduct, and public drunkenness. On February 17,

2022, Appellant entered a negotiated guilty plea to one count each of

terroristic threats and disorderly conduct. In exchange, the Commonwealth

agreed to the dismissal of the remaining charges and the imposition of an

aggregate term of two years’ probation. (See N.T. Plea Hearing, 2/17/22, at

1). The court accepted Appellant’s plea and imposed the agreed-upon

sentence of two years’ probation. Appellant did not file post-sentence

motions.

Appellant timely filed a notice of appeal on March 10, 2022. On March

24, 2022, the court ordered Appellant to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. On March 30, 2022, counsel

timely filed a Rule 1925(c)(4) statement of intent to file an Anders2 brief.

Thereafter, counsel filed an application to withdraw and an Anders brief with

this Court.

2 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

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Preliminarily, counsel seeks to withdraw representation pursuant to

Anders and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349

(2009). Anders and Santiago require counsel to: (1) petition the Court for

leave to withdraw, certifying that after a 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 the

appeal; and (3) furnish a copy of the brief to the appellant and advise her of

her right to obtain new counsel or file a pro se brief to raise any additional

points the appellant deems worthy of review. Santiago, supra at 173-79,

978 A.2d at 358-61. “Substantial compliance with these requirements is

sufficient.” Commonwealth v. Reid, 117 A.3d 777, 781 (Pa.Super. 2015).

After establishing that counsel has met the antecedent requirements to

withdraw, this Court makes an independent review of the record to confirm

that the appeal is wholly frivolous. Commonwealth v. Palm, 903 A.2d 1244,

1246 (Pa.Super. 2006). See also Commonwealth v. Dempster, 187 A.3d

266 (Pa.Super. 2018) (en banc).

In Santiago, supra, our Supreme Court addressed the briefing

requirements where court-appointed appellate counsel seeks to withdraw

representation:

Neither Anders nor [Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981)] requires that counsel’s brief provide an argument of any sort, let alone the type of argument that counsel develops in a merits brief. To repeat, what the brief must provide under Anders are references to anything in the record that might arguably support the

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appeal.

* * *

Under Anders, the right to counsel is vindicated by counsel’s examination and assessment of the record and counsel’s reference to anything in the record that arguably supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

[I]n the Anders brief that accompanies court-appointed counsel’s petition to withdraw, counsel must: (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.

Id. at 178-79, 978 A.2d at 361.

Instantly, counsel has filed an application to withdraw. The application

states that counsel has conducted a careful review of the record and

determined that the appeal is wholly frivolous. Counsel also supplied

Appellant with a copy of the Anders brief and a letter explaining Appellant’s

right to retain new counsel or to proceed pro se to raise additional issues

Appellant deems worthy of this Court’s attention.

In the Anders brief, counsel summarized the relevant procedural

history of the case. The argument section of the brief refers to relevant case

law and portions of the record that might arguably support Appellant’s issue.

Counsel also provides the reasons for his conclusion that the appeal is wholly

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frivolous. Therefore, counsel has substantially complied with the technical

requirements of Anders and Santiago.

Appellant has not responded to the Anders brief pro se or with newly

retained private counsel. Counsel raises the following issue on Appellant’s

behalf:

Whether counsel should be permitted to withdraw as a review of the [record] shows that there are no non-frivolous issues for appeal as it presents no meritorious points.

(Anders Brief at viii).

On appeal, Appellant argues that she is actually innocent. Appellant

concludes that this Court should permit her to withdraw her plea on this basis.

We disagree.

“[T]o preserve an issue related to a guilty plea, an appellant must either

‘object at the sentence colloquy or otherwise raise the issue at the sentencing

hearing or through a post-sentence motion.’” Commonwealth v. Monjaras-

Amaya, 163 A.3d 466, 468-69 (Pa.Super. 2017) (quoting Commonwealth

v. D’Collanfield, 805 A.2d 1244, 1246 (Pa.Super. 2002)). “Failure to employ

either measure results in waiver.” Commonwealth v. Lincoln, 72 A.3d 606,

610 (Pa.Super. 2013), appeal denied, 624 Pa. 688, 87 A.3d 319 (2014).

“Historically, Pennsylvania courts adhere to this waiver principle because ‘[i]t

is for the court which accepted the plea to consider and correct, in the first

instance, any error which may have been committed.’” Id. (quoting

Commonwealth v. Roberts, 352 A.2d 140, 141 (Pa.Super. 1975)).

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Generally, the entry of a guilty plea constitutes a waiver of all defects

and defenses except lack of jurisdiction, invalidity of the plea, and legality of

the sentence. Commonwealth v. Main, 6 A.3d 1026 (Pa.Super. 2010). “[A]

defendant who attempts to withdraw a guilty plea after sentencing must

demonstrate prejudice on the order of manifest injustice before withdrawal is

justified.” Commonwealth v. Pantalion, 957 A.2d 1267, 1271 (Pa.Super.

2008). “A plea rises to the level of manifest injustice when it was entered into

involuntarily, unknowingly, or unintelligently.” Id. (quoting Commonwealth

v. Muhammad, 794 A.2d 378, 383 (Pa.Super. 2002)).

Our Rules of Criminal Procedure mandate that pleas are taken in open

court and the court must conduct an on-the-record colloquy to ascertain

whether a defendant is aware of her rights and the consequences of her plea.

Commonwealth v. Hodges, 789 A.2d 764 (Pa.Super. 2002). Specifically,

the court must affirmatively demonstrate a defendant understands: (1) the

nature of the charges to which she is pleading guilty; (2) the factual basis for

the plea; (3) her right to trial by jury; (4) the presumption of innocence; (5)

the permissible ranges of sentences and fines possible; and (6) that the judge

is not bound by the terms of the agreement unless the judge accepts the

agreement. Commonwealth v. Watson, 835 A.2d 786 (Pa.Super. 2003).

This Court will evaluate the adequacy of the plea colloquy and the

voluntariness of the resulting plea by examining the totality of the

circumstances surrounding the entry of that plea. Muhammad, supra. A

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guilty plea will be deemed valid if an examination of the totality of the

circumstances surrounding the plea shows that the defendant had a full

understanding of the nature and consequences of her plea such that she

knowingly and intelligently entered the plea of her own accord.

Commonwealth v. Rush, 909 A.2d 805 (Pa.Super. 2006).

Pennsylvania law presumes a defendant who entered a guilty plea was

aware of what she was doing and bears the burden of proving otherwise.

Commonwealth v. Pollard, 832 A.2d 517 (Pa.Super. 2003). A defendant

who decides to plead guilty is bound by the statements she makes while under

oath and “may not later assert grounds for withdrawing the plea which

contradict the statements [she] made at [her] plea colloquy.” Id. at 523.

“Our law does not require that a defendant be totally pleased with the outcome

of [her] decision to plead guilty, only that [her] decision be voluntary, knowing

and intelligent.” Id. at 524.

Instantly, Appellant entered her plea on February 17, 2022. At the

conclusion of the plea hearing, the court accepted Appellant’s plea and

immediately imposed the agreed-upon probationary sentence. Following the

imposition of sentence, Appellant did not raise any objection to the entry of

her plea. (See N.T. Plea Hearing at 3). Thereafter, the court entered

Appellant’s sentencing order, which included notice of Appellant’s right to file

a notice of appeal or a post-sentence motion. (See Sentencing Order, dated

2/17/22, at 4-5). Appellant did not file a post-sentence motion seeking to

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withdraw the plea. Consequently, Appellant has waived her challenge to the

entry of the plea. See Monjaras-Amaya, supra; Lincoln, supra.

Moreover, the court conducted an on-the-record colloquy at the plea

hearing. At that time, Appellant confirmed her understanding of the

proceedings and the terms of the plea agreement. (See N.T. Plea Hearing at

1). Appellant indicated that she wanted to plead guilty to the offenses at

issue, which were graded as misdemeanors, in exchange for the dismissal of

the more serious charges. (Id. at 1-2). Appellant stated that no one had

forced her into entering the plea, and she was not under the influence of

anything that prevented her from understanding the consequences of her

plea. (Id. at 2). Further, Appellant admitted to the factual basis for the plea,

and she confirmed her understanding of the right to a jury trial and the

presumption of innocence. (Id.)

Under the totality of these circumstances, Appellant entered a knowing,

voluntary, and intelligent guilty plea. See Rush, supra; Muhammad,

supra. Thus, Appellant cannot demonstrate prejudice on the order of

manifest injustice to justify the withdrawal of her plea. See Pantalion,

supra. Following our independent review of the record, we agree the appeal

is wholly frivolous. See Dempster, supra; Palm, supra. Accordingly, we

affirm the judgment of sentence and grant counsel’s petition to withdraw.

Judgment of sentence affirmed. Counsel’s petition to withdraw is

granted.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/21/2022

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