Com. v. Murray, L.

• Court: Superior Court of Pennsylvania
• Decided: December 30, 2021
• Docket: 800 EDA 2021
• Status: Unpublished

Opinion

J-S36015-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LEVAUGHN MURRAY : : Appellant : No. 800 EDA 2021

Appeal from the Judgment of Sentence Entered March 3, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005117-2019

BEFORE: LAZARUS, J., KING, J., and COLINS, J.*

MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 30, 2021

Levaughn Murray appeals from the judgment of sentence, entered in

the Court of Common Pleas of Philadelphia County, following his guilty plea to

two counts of robbery1 and one count of possession of firearm prohibited.2

Additionally, Murray’s counsel, James Lloyd, Esquire, has filed an application

to withdraw as counsel and an accompanying Anders3 brief. Upon review,

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. § 3701(a)(1)(ii).

2 18 Pa.C.S.A. § 6105(a)(1).

3 Anders v. California, 368 U.S. 738 (1967); Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981); Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). J-S36015-21

we grant Attorney Lloyd’s application to withdraw and affirm Murray’s

judgment of sentence.

On May 4, 2019, at approximately 12:00 p.m., Chris Vega and Aidaliz

Del Valle exited a check cashing business as Murray approached them

brandishing a firearm. Murray claimed that Vega owed him money and

demanded that Vega and Del Valle give him their money. The victims gave

Murray $380.00 and $496.00, respectively.

On June 14, 2019, Murray was charged, inter alia, with the above-

mentioned offenses. On March 3, 2021, Murray entered into a negotiated

guilty plea in which he agreed to plead guilty to two counts of robbery and

one count of possession of firearm prohibited, and to receive an aggregate

sentence of 4½ to 10 years in prison. In exchange, the Commonwealth agreed

to withdraw the remaining charges. On the same day, the trial court

sentenced Murray, in accordance with the negotiated plea agreement.

On March 10, 2021, Murray filed a motion to withdraw his guilty plea,

claiming that he was innocent and that it would be manifest injustice to

prevent him from cross-examining the witnesses at a trial. On March 24,

2021, the trial court conducted a hearing, after which it denied Murray’s

motion.

Murray filed a timely notice of appeal. The trial court ordered a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

However, on June 11, 2021, counsel filed his intention to file an Anders brief

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in lieu of a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal. See Pa.R.A.P. 1925(c)(4). Counsel subsequently filed, with this

Court, an application to withdraw as counsel, and a brief pursuant to Anders.

Murray filed a pro se application for relief, in which he requested leave to file

a pro se response to counsel’s Anders brief. This Court granted Murray’s

application for relief, and he has filed a pro se response to counsel’s Anders

brief.

When counsel files an Anders brief, and the appellant files a pro se or

counseled response, this Court will first determine whether counsel has

complied with the dictates of Anders and Santiago. See Commonwealth

v. Bennett, 124 A.3d 327, 333 (Pa. Super. 2015) (outlining proper procedure

where counsel files Anders brief and appellant files pro se response). If

counsel has complied with the dictates of Anders and Santiago, we will

address the issues raised in the Anders brief and conduct our independent

examination of the record as to those issues. See id. Finally, if we determine

those issues to be without merit, we next examine the appellant’s pro se

allegations. See id. In doing so, “[this] Court is limited to examining only

those issues raised and developed in the brief[; w]e do not act as, and are

forbidden from acting as, appellant’s counsel.” Id.

Pursuant to Anders, when counsel believes that an appeal is frivolous

and wishes to withdraw from representation, counsel must:

(1) petition the court for leave to withdraw stating that after making a conscientious examination of the record and

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interviewing the defendant, counsel has determined the appeal would be frivolous, (2) file a brief referring to any issues in the record of arguable merit, and (3) furnish a copy of the brief to defendant and advise him of his right to retain new counsel or to raise any additional points that he deems worthy of the court’s attention. The determination of whether the appeal is frivolous remains with the court.

Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012) (citation

omitted).

Additionally, the Pennsylvania Supreme Court has explained that a

proper Anders brief 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.

Santiago, 978 A.2d at 361.

After determining that counsel has satisfied the technical requirements

of Anders and Santiago, this Court must then “conduct a simple review of

the record to ascertain if there appears 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).

Instantly, our review of counsel’s Anders brief and application to

withdraw reveals that Attorney Lloyd has substantially complied with each of

the technical requirements of Anders/Santiago. See Commonwealth v.

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Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007) (stating counsel must

substantially comply with requirements of Anders). Attorney Lloyd indicates

that he has made a conscientious examination of the record and determined

that an appeal would be frivolous. The record further reflects that counsel has

furnished a copy of the Anders brief to Murray, advised Murray of his right to

retain new counsel or proceed pro se, or raise any additional points that he

deems worthy of this Court’s attention. Additionally, counsel’s Anders brief

substantially complies with the requirements of Santiago. As Attorney Lloyd

has complied with all of the requirements for withdrawing from representation,

we will examine the record and make an independent determination of

whether Murray’s appeal is, in fact, wholly frivolous.

In the Anders brief, Attorney Lloyd presents the following issues on

Murray’s behalf for our review:

[1.] Did the [trial] court err when it denied [Murray]’s timely post- sentence motion to withdraw his guilty plea?

[2.] Is the guilty plea in this matter valid where: (1) [Murray] was taking prescription medication at the time the plea was entered; (2) [Murray] did not know he was pleading guilty to two counts of robbery, because only one complainant testified at the preliminary hearing; (3) [Murray] maintains that “I’m innocent and not guilty of robbery[;]” and (4) the minimum sentence imposed for the crime of [] robbery was 4½ years of incarceration?

Anders Brief, at 4.

In his first claim, Murray asserts that he has an absolute “right to

reconsider and withdraw his guilty plea within ten days of entering the plea.”

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Id. at 17. Murray contends that the trial court, therefore, erred in denying

his motion to withdraw his guilty plea.

The decision of whether to permit a defendant to withdraw a guilty plea

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

71 A.3d 1017, 1019 (Pa. Super. 2013) (citations and quotations omitted); see

also Commonwealth v. Broaden, 980 A.2d 124, 128 (Pa. Super. 2009)

(appellate courts review trial court’s order denying motion to withdraw guilty

plea for abuse of discretion).

It is well settled that there is no absolute right to withdraw a guilty

plea. Commonwealth v. Forbes, 299 A.2d 268, 271 (Pa. 1973). 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); see also

Commonwealth v. Hart, 174 A.3d 660, 664 (Pa. Super. 2017) (“post-

sentence motions for withdrawal are subject to higher scrutiny since the courts

strive to discourage the entry of guilty pleas as sentence-testing devices[]”)

(citations and quotation marks omitted).

To ensure that a plea is voluntary, knowing, and intelligent,

Rule 590 of the Pennsylvania Rules of Criminal Procedure requires that a trial court conduct a separate inquiry of the defendant before accepting a guilty plea. . . . As the Comment to Rule 590 provides[,] at a minimum, the trial court should ask questions to elicit the following information:

(1) Does the defendant understand the nature of the charges to which he or she is pleading guilty or nolo contendere?

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(2) Is there a factual basis for the plea?

(3) Does the defendant understand that he or she has a right to a trial by jury?

(4) Does the defendant understand that he or she is presumed innocent until found guilty?

(5) Is the defendant aware of the permissible range of sentencing and/or fines for the offenses charged?

(6) Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement?

Hart, 174 A.3d at 667-68 (citations omitted). “Inquiry into the above six

areas is mandatory.” Commonwealth v. Ingold, 823 A.2d 917, 921 (Pa.

Super. 2003). “The purpose of [Rule 590] is to ensure that the defendant

fully understands the nature of the crimes to which he or she is pleading guilty

and the rights that are being waived by the plea.” Commonwealth v.

Carter, 656 A.2d 463, 465 (Pa. 1995).

In determining whether a plea is valid, the court must examine the

totality of the circumstances surrounding the plea. Commonwealth v. Kpou,

153 A.3d 1020, 1023 (Pa. Super. 2016). “A guilty plea will not be deemed

invalid if the circumstances surrounding the entry of the plea disclose that the

defendant had a full understanding of the nature and consequences of his

plea[,] and that he knowingly and voluntarily decided to enter the plea.”

Commonwealth v. Fluharty, 632 A.2d 312, 315 (Pa. Super. 1993).

“Pennsylvania law presumes a defendant who entered a guilty plea was aware

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of what he was doing, and the defendant bears the burden of proving

otherwise.” Id. Moreover, “[a] written plea colloquy that is read,

completed[,] and signed by the defendant and made part of the record may

serve as the defendant’s plea colloquy when supplemented by an oral, on-the-

record examination.” Commonwealth v. Morrison, 878 A.2d 102, 108 (Pa.

Super. 2005) (citing Pa.R.Crim.P. 590, cmt.).

Instantly, our review of the record reveals that on March 3, 2021,

Murray entered into a negotiated plea and was sentenced that same day.

Additionally, Murray filed a timely motion to withdraw his guilty plea.

However, our precedent clearly establishes that there is no “absolute right” to

withdraw a guilty plea. See Forbes, supra. Rather, the defendant must

“demonstrate prejudice on the order of manifest injustice.” See Yeomans,

supra. Our review of the record reveals that the trial court inquired into each

of the Rule 590 questions, and that Murray entered his plea knowingly,

intelligently, and voluntarily. See Hart, supra; Ingold, supra; see also

Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super. 2003) (“A person

who elects to plead guilty is bound by the statements he makes in open court

while under oath and he may not later assert grounds for withdrawing the plea

which contradict the statements he made at his plea colloquy.”). Accordingly,

we conclude that Murray’s first claim is frivolous.

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In his second claim, Murray raises three sub-issues,4 which we address

separately. First, Murray contends that his guilty plea is invalid because, at

the time of his plea, he was taking Thorazine for anxiety. Anders Brief, at

30. Murray asserts that his prescribed Thorazine “could have affected [his]

comprehension at the time.” Id.

Our review of the record belies Murray’s claim. At the negotiated plea

hearing, the trial court colloquied Murray regarding any mental health

medications that he was taking at the time. See N.T. Negotiated Plea Hearing,

3/3/21, at 5-6. Murray informed the trial court that he was taking prescribed

medications for anxiety and depression. Id. The trial court asked, “Do any

of those medicines affect your ability to understand what you’re doing today?”

Id. at 6. Murray replied “No ma’am.” Id. at 6. We further observe that

throughout his plea hearing, Murray engaged with the trial court’s colloquy

coherently and responsively. See id. at 3-15. Additionally, after the trial

court’s colloquy, Murray indicated that he had no questions prior to entering

his plea. Id. at 10-11. Moreover, Murray reviewed and signed a written guilty

plea colloquy, stating that he understood his rights and had reviewed them

4 We note that Murray’s first and second sub-issues were not raised in his motion to withdraw guilty plea and were not argued at the subsequent hearing. Additionally, the Commonwealth has objected to this defect in its brief. See Commonwealth Brief, at 9-10. Accordingly, we may deem them waived. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”). Nevertheless, we review these claims as part of our independent review of the record. See Dempster, supra.

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with his counsel. See Written Guilty Plea Colloquy, 3/3/21, at 1-4; N.T.

Negotiated Plea Hearing, 3/3/21, at 9 (Murray stating he signed the written

guilty plea colloquy at bottom of page 3 and acknowledging he reviewed form

with plea counsel and understood it). Accordingly, this claim is frivolous. See

Fluharty, supra; Pollard, supra.

In his second sub-issue, Murray argues that he is innocent of the

robbery offenses, and that he was unaware that he was pleading guilty to two

counts of robbery. Anders Brief, at 30-31.

With regard to Murray’s claim that he is innocent and was unaware that

he was pleading guilty to two counts of robbery, the record belies this claim

as well. During the guilty plea hearing the trial court asked Murray if he was

pleading guilty because he is guilty, to which Murray responded “Yes[.]” N.T.

Negotiated Plea Hearing, 3/3/21, at 11. Additionally, the trial judge asked

Murray if he understood that he was pleading guilty to “two counts of first-

degree felony robbery, and one count of . . . possession of a firearm []

prohibited.” Id. at 4. Murray responded, “Yes[.]” Id. at 5. Further, at the

hearing on Murray’s motion to withdraw guilty plea, the trial court questioned

Murray as follows:

[Trial] Court: Did I go over the terms of the negotiated plea with you?

[Murray]: Yes, ma’am.

[Trial] Court: And, in fact, when I did that – and also on the form that you signed, . . . the second charge there that was noted after

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the two counts of robbery, was person possessing a firearm as a prohibited person. Do you remember talking about that?

[Murray]: Yes, I do.

[Trial] Court: Well, at no time, sir, did you say, [“]oh that’s a surprise to me,[”] did you?

[Murray]: No, ma’am.

N.T. Motion to Withdraw Plea, 3/24/21, at 15 (emphasis added). Accordingly,

we conclude that this claim is frivolous. See Fluharty, supra; Pollard,

supra.

In his third sub-issue, Murray posits that his guilty plea is invalid

because “the minimum sentence imposed was 4½ years of incarceration.”

Anders Brief, at 31. In particular, Murray claims that the mandatory

minimum sentence contemplated by 42 Pa.C.S.A. § 9712, required the trial

court to sentence to him to a 5-year minimum sentence, and that the trial

court lacked the authority to accept a plea that resulted in a minimum

sentence of less than 5 years. Anders Brief at 31.

Preliminarily, we observe that section 9712 was declared

unconstitutional by this Court in Commonwealth v. Valentine, 101 A.3d 801

(Pa. Super. 2014) (determining sections 9712 and 9713 unconstitutional).

Because Murray was sentenced nearly 7 years after our decision in Valentine,

Murray’s 4½-year minimum sentence does not constitute an illegal sentence

and, therefore, his claim is frivolous.

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We now turn to the issues, raised in Murray’s pro se response. Murray

raises the following claims for our review:

1. The presumption of innocence, the written colloquy pertinent part was not explain[ed] to [Murray].

2. The written colloquy did not state and/or was not made aware to [] Murray.

3. Prescription [psychiatric] medication could have altered [] Murray’s comprehension and/or understanding of entering a guilty plea.

4. [Murray] waived both pre-sentence investigation and mental health evaluation is a[n] untrue statement made by attorney/counsel.

Pro Se Response to Anders Brief, at 1 (unpaginated).

With respect to Murray’s first, second, and fourth issues, Murray

provides no argument, nor does he cite to relevant legal authority, or request

any relief. See id. Accordingly, we conclude that Murray has waived these

claims. See Bennett, supra; see also Commonwealth v. Rivera, 685 A.2d

1011, 1013 (Pa. Super. 1996) (Court will not review wholly inadequate brief

that fails to comply with guidelines set forth in Pa.R.A.P. 2111(a)); Pa.R.A.P.

2119(a) (argument section of appellate brief shall include “such discussion

and citation of authorities as are deemed pertinent”).

In his third claim, Murray contends that the trial court erred by accepting

his plea after the trial court was made aware that Murray was taking

prescription medication. Pro Se Response to Anders Brief, at 3. Murray

asserts that his medication “could have” altered his ability enter into the plea

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knowingly and intelligently. Id. Murray acknowledges that his “answers that

day were coherent and responsive” but contends that is not indicative as to

whether he knowingly, intelligently, and voluntarily entered into his plea. Id.

As discussed supra, Murray’s claim is belied by the record. See N.T.

Negotiated Plea Hearing, 3/3/21, at 5-6, 9-11; Written Guilty Plea Colloquy,

3/3/21, at 1-4; see also Fluharty, supra. Accordingly, Murray’s claim is

frivolous.

Judgment of sentence affirmed. Application to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/30/2021

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