Com. v. Moore, J.

• Court: Superior Court of Pennsylvania
• Decided: February 13, 2025
• Docket: 564 EDA 2024
• Status: Unpublished

Opinion

J-S40027-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JUSTIN KEYSEAN MOORE : : Appellant : No. 564 EDA 2024

Appeal from the Judgment of Sentence Entered November 29, 2023 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0001556-2023

BEFORE: STABILE, J., McLAUGHLIN, J., and LANE, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED FEBRUARY 13, 2025

Justin Keysean Moore appeals from the judgment of sentence following

his guilty plea to possession of a controlled substance, possession of small

amount of marijuana for personal use, and possession of drug paraphernalia. 1

Moore’s counsel has filed an Anders2 brief and a petition to withdraw as

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

withdraw.

The trial court summarized the facts as follows:

On October 7, 2022, around 3:33 p.m., [Moore] was stopped on Interstate 95 in Bensalem Township, Bucks County, by Pennsylvania State Police Officer Brent Neifield for a suspected fraudulent registration and illegal window tint. While the officer was pulling the vehicle over, he also noticed an inoperable brake light. [Moore] had no ____________________________________________

1 35 P.S. § 780-113(a)(16), (a)(31), and (a)(32), respectively.

2 Anders v. California, 386 U.S. 738 (1967). J-S40027-24

identification on him, and after he gave his name to the officer, the officer discovered that [Moore’s] license was suspended. [Moore’s] registration and insurance cards were also expired. The officer also later confirmed that [Moore’s] inspection and emissions stickers were fraudulent.

After Officer Neifield stopped [Moore], he asked him about the strong odor of burnt marijuana coming from his vehicle. [Moore] showed the officer what appeared to be marijuana and threw it out the window.

[Moore] had an active arrest warrant out of the Bucks County Sheriff’s Office. Before the officer took [Moore] into custody, [Moore] told the officer that he had a BB gun in his car that he had “posed” as a firearm.

On October 11, 2022, a search of [Moore’s] vehicle was conducted pursuant to a search warrant. The officer recovered nine (9) bags of marijuana (weighing just over one pound), twenty-two (22) containers of liquid THC, a digital scale containing marijuana residue, $769.00 (United States currency), and a “realistic looking black Glock 17” BB gun.

Trial Court Opinion, filed 4/2/24, at 1-2.

Moore entered an open guilty plea on November 2, 2023, to the above

offenses. Sentencing was deferred to determine if Moore was able to pay a

$1,000 fine as a sentence. After determining that Moore could not pay the

fine, on November 29, 2023, the court placed Moore on one year of reporting

probation for possession of a controlled substance. No further penalty was

imposed on the two remaining counts. The court granted Moore permission to

travel to Florida on vacation with his family in January/February 2024.

Moore filed a motion to modify and reconsider sentence, on December

8, 2023, wherein he argued that his sentence was excessive. See Motion to

Modify and Reconsider Sentence, 12/8/23, at ¶ 4. He simultaneously filed a

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motion to withdraw guilty plea and claimed that his plea was not entered into

knowingly, intelligently, or voluntarily because he “was intimidated into

pleading guilty by [plea] counsel” and “was not adequately advised of the

consequences of his plea.” Motion to Withdraw Guilty Plea, 12/8/23, at ¶¶ 6-

8. After a hearing, the court denied both motions. This timely appeal followed.

Counsel’s Anders brief raises two potential issues: a challenge to the

voluntariness of Moore’s guilty plea and a claim that the court abused its

discretion in imposing his sentence. Anders Br. at 10, 17.

Before we assess Moore’s claims, we must first determine whether

counsel has satisfied the procedural requirements to withdraw from the

representation when filing an Anders brief. See Commonwealth v.

Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007) (en banc) (stating that

“[w]hen faced with a purported Anders brief, this Court may not review the

merits of any possible underlying issues without first examining counsel’s

request to withdraw”). 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 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). Further, in the Anders brief, counsel seeking to withdraw must:

(1) provide a summary of the procedural history and facts, with citations to the record; (2) refer to anything in the

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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).

If counsel meets all the above obligations, “it then becomes the

responsibility of the reviewing court to make a full examination of the

proceedings and make an independent judgment to decide whether the appeal

is in fact wholly frivolous.” Id. at 355 n.5 (quoting Commonwealth v.

McClendon, 434 A.2d 1185, 1187 (Pa. 1981)).

Here, counsel has complied with the above technical requirements. In

his Anders brief, counsel provided a summary of the procedural history and

facts of the case with citations to the record. Further, counsel’s brief includes

two issues that could arguably support the appeal, and counsel’s assessment

of why those issues are frivolous, with citations to the record and relevant

legal authority. In addition, counsel served Moore with a copy of the Anders

brief and advised him of his right to proceed pro se or retain a private attorney

to raise any additional points he deemed worthy of this Court’s review. Petition

to Withdraw, 8/13/24, at ¶ 7. Moore has not responded to counsel’s petition

to withdraw. As we find counsel has met the technical requirements of

Anders, we will proceed to determine if the issues counsel identified are

wholly frivolous.

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The first issue is whether Moore’s guilty plea was knowing, intelligent,

and voluntary because he was intimidated and pressured into pleading guilty

by his plea counsel, and because he was not adequately advised of the

consequences of his guilty plea. Anders Br. at 10.

“[T]he decision whether to permit a defendant to withdraw a guilty plea

is within the sound discretion of the trial court.” Commonwealth v. Hart,

174 A.3d 660, 664 (Pa.Super. 2017). “There is no absolute right to withdraw

a guilty plea.” Commonwealth v. Broaden, 980 A.2d 124, 128 (Pa.Super.

2009). When a defendant seeks to withdraw a guilty plea after sentencing, he

“must demonstrate prejudice on the order of manifest injustice[.]”

Commonwealth v. Yeomans, 24 A.3d 1044, 1046 (Pa.Super. 2011)

(citation omitted). Manifest injustice “may be established if the plea was

entered into involuntarily, unknowingly, or unintelligently.” Id.

To be valid, a guilty plea must be knowing, intelligent, and voluntary.

Commonwealth v. Pollard, 832 A.2d 517, 522 (Pa.Super. 2003). The court

therefore must conduct an on-the-record inquiry to determine whether the

plea is voluntarily and understandingly tendered. Commonwealth v.

Hodges, 789 A.2d 764, 765 (Pa.Super. 2002) (citing Pa. R.Crim.P. 590(a)).

The court must develop a record that affirmatively shows that the defendant

understands: (1) the nature of the charges to which the defendant is pleading

guilty; (2) the factual basis for the plea; (3) the right to a jury trial; (4) the

presumption of innocence; (5) the permissible ranges of potential sentences

and fines; and (6) that the court is not bound by the terms of the agreement

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unless it accepts it. Commonwealth v. Kelley, 136 A.3d 1007, 1013

(Pa.Super. 2016). There is a presumption that a plea was knowing, intelligent,

and voluntary, and the defendant bears the burden of proving otherwise.

Pollard, 832 A.2d at 523.

In deciding whether a guilty plea was knowing, intelligent, and

voluntary, a court should consider the totality of the circumstances

surrounding the entry of the plea. Commonwealth v. Allen, 732 A.2d 582,

588-89 (Pa. 1999). Additionally, “a defendant may not challenge his guilty

plea by asserting that he lied while under oath, even if he avers that counsel

induced the lies.” Pollard, 832 A.2d at 523. Indeed, a defendant who elects

to plead guilty is required to answer all questions during the plea colloquy

truthfully and may not later assert grounds for withdrawing the plea that

contradict the defendant’s statements during the colloquy. Id.

Here, the trial court conducted an on-the-record colloquy in which Moore

acknowledged that he completed and signed a written guilty plea form. N.T.

Guilty Plea Hearing, 11/2/23, at 4. The court further colloquied Moore, and

Moore acknowledged that he was presumed innocent, the Commonwealth had

the burden of proving him guilty beyond a reasonable doubt, he had no burden

to prove his innocence, and he had a right to a trial before a judge or jury.

Id. at 6. Moore also agreed that he had sufficient opportunity to meet with

his attorney and discuss with him his decision to enter a guilty plea. Id. at 5-

6. He confirmed that he was satisfied with his counsel’s representation. Id. at

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6. Moore also consulted with his stepmother, a former attorney and probation

officer, about his case. Id. at 17.

Moore further agreed to the Commonwealth’s recitation of the factual

basis for the plea. Id. at 11-13. The court explained the nature of the charges

to which Moore was pleading guilty and his range of potential sentence and

fines. Id. at 7-10. Moore responded by saying, “I understand.” Id. at 8-10.

Moore further stated that his decision to plead guilty was not the result of any

threats or coercion. Id. at 11.

The court thus made the requisite inquiries and the record provides no

basis for concluding that Moore’s guilty plea was not knowing, intelligent, and

voluntary. Any claim that Moore was pressured by his attorney to enter a

guilty plea is belied by his testimony he made under oath at the guilty plea

hearing. Although Moore claimed at the hearing on his motion to withdraw

guilty plea that he lied during the guilty plea colloquy, see N.T. Post-Sentence

Motions Hearing, 1/25/24, at 12, his statements made during the plea

colloquy are binding, and he may not assert grounds for withdrawing his plea

that contradict his statements he made when he pled. Pollard, 832 A.2d at

523. Accordingly, the claim that Moore’s plea was not entered knowingly,

voluntarily, and intelligently is frivolous.3

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3 We further note that Moore’s claim implicates plea counsel’s ineffectiveness.

Moore cannot raise an ineffective assistance of counsel claim on direct appeal. See Commonwealth v. Holmes, 79 A.3d 562, 563-64 (Pa. 2013) (providing that, with limited exceptions not applicable here, a court cannot review (Footnote Continued Next Page)

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The next issue presented in counsel’s Anders brief is whether the court

abused its discretion in imposing Moore’s sentence. Anders Br. at 17. This is

a challenge to the discretionary aspects of his sentence. “The right to appellate

review of the discretionary aspects of a sentence is not absolute, and must be

considered a petition for permission to appeal.” Commonwealth v. Conte,

198 A.3d 1169, 1173 (Pa.Super. 2018). An appellant challenging the

discretionary aspects of his sentence must invoke this Court’s jurisdiction by

satisfying a four-part test: “(1) the appeal is timely; (2) the appellant has

preserved his issue; (3) his brief includes a concise statement of the reasons

relied upon for allowance of an appeal with respect to the discretionary aspects

of his sentence; and (4) the concise statement raises a substantial question

whether the sentence is inappropriate under the Sentencing Code.”

Commonwealth v. Green, 204 A.3d 469, 488 (Pa.Super. 2019); see also

Pa.R.A.P. 2119(f) (stating that an appellant who challenges the discretionary

aspects of a sentence “shall set forth in a separate section of the brief a

concise statement of the reasons relied upon for allowance of appeal with

respect to the discretionary aspects of a sentence”).

Moore’s counsel has not included the requisite Pa.R.A.P. 2119(f)

statement in his Anders brief. However, “[w]here counsel files an Anders

brief, this Court has reviewed the matter even absent a separate Pa.R.A.P.

ineffective assistance of counsel claims on direct appeal). Rather, ineffectiveness claims are deferred for collateral review under the Post Conviction Relief Act, 42 Pa.C.S.A. § 9541-9546. Id. at 576.

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2119(f) statement. Hence, we do not consider counsel’s failure to submit a

Rule 2119(f) statement as precluding review of whether [an a]ppellant’s issue

is frivolous.” Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa.Super.

2015) (internal citations omitted).

Nevertheless, this claim fails because Moore did not raise a substantial

question. In his post-sentence motion, Moore claimed his sentence was

excessive. See Motion to Modify and Reconsider Sentence at ¶ 4. “[A] generic

claim that a sentence is excessive does not raise a substantial question for

our review.” Commonwealth v. Andrews, 213 A.3d 1004, 1017 (Pa.Super.

2019) (quoting Commonwealth v. Christine, 78 A.3d 1, 10 (Pa.Super.

2013) (en banc)).

We therefore agree with Moore’s counsel that the issues counsel

identified are wholly frivolous, and our independent review of the record has

disclosed no non-frivolous issues. Accordingly, we grant counsel’s petition to

withdraw and affirm the judgment of sentence.

Judgment of sentence affirmed. Petition to withdraw as counsel granted.

Date: 2/13/2025

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