Com. v. Shields, T.

• Court: Superior Court of Pennsylvania
• Decided: July 2, 2020
• Docket: 1690 WDA 2019
• Status: Unpublished

Opinion

J-A12027-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : TYSHAWN RASHAD SHIELDS : : Appellant : No. 1690 WDA 2019

Appeal from the Judgment of Sentence Entered November 13, 2019 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0000553-2019

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

MEMORANDUM BY KING, J.: FILED JULY 02, 2020

Appellant, Tyshawn Rashad Shields, appeals from the judgment of

sentence entered in the Erie County Court of Common Pleas, following his

negotiated nolo contendere pleas to persons not to possess firearms and

possession of drug paraphernalia.1 We affirm and grant counsel’s petition to

withdraw.

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

November 5, 2018, parole agents entered Appellant’s residence to conduct a

search, pursuant to a probation home agreement. The agents entered the

residence using keys they retrieved from a vehicle owned by Appellant’s

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. § 6105(a)(1) and 35 P.S. § 780-113(a)(32), respectively. J-A12027-20

daughter’s mother. During the search, the agents discovered contraband in

Appellant’s residence.

On March 19, 2019, the Commonwealth filed a criminal information

charging Appellant with various offenses. Appellant filed a suppression motion

on April 24, 2019. In his motion, Appellant argued the parole agents

conducted an illegal search of his residence. On June 28, 2019, the court

conducted a suppression hearing. The court denied Appellant’s suppression

motion on October 30, 2019.

On November 4, 2019, Appellant entered negotiated pleas of nolo

contendere to persons not to possess firearms and possession of drug

paraphernalia. In exchange for his pleas, the Commonwealth agreed to

withdraw the remaining charges. On November 13, 2019, the court sentenced

Appellant to an aggregate term of six (6) to eighteen (18) months’

imprisonment, followed by one (1) year of probation.

Also on November 13, 2019, Appellant timely filed his notice of appeal

and a voluntary Pa.R.A.P. 1925(b) concise statement of errors complained of

on appeal. Counsel subsequently filed a petition to withdraw and an Anders2

brief with this Court.

As a preliminary matter, counsel seeks to withdraw representation

pursuant to Anders and Commonwealth v. Santiago, 602 Pa. 159, 978

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

-2- J-A12027-20

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 him of

his 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. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.

2007). 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 appeal.

* * *

-3- J-A12027-20

Under Anders, the right to counsel is vindicated by counsel’s examination and assessment of the record and counsel’s references 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, Appellant’s counsel filed a petition to withdraw. The petition

states counsel performed a thorough review of all available transcripts,

pleadings, and other materials from Appellant’s file, concluding the appeal is

wholly frivolous. Counsel supplied Appellant with a copy of the brief. Counsel

also provided Appellant with a letter explaining his right to retain new counsel

to pursue the appeal or to proceed pro se to raise any points Appellant deems

worthy of this Court’s attention.

In the Anders brief, counsel provided a statement of facts and

procedural history of the case. Counsel’s argument refers to relevant law that

might arguably support Appellant’s issue. Counsel further states the reasons

for her conclusion that the appeal is wholly frivolous. Therefore, counsel has

substantially complied with the technical requirements of Anders and

-4- J-A12027-20

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 THE TRIAL COURT COMMITTED AN ERROR OF LAW AND/OR AN ABUSE OF DISCRETION WHEN IT DENIED THE APPELLANT’S MOTION TO SUPPRESS?

(Anders Brief at 3).

On appeal, Appellant argues the parole agents conducted an illegal

search of his residence. Appellant insists “no reliable grounds existed” to

search the residence, and an exception to the warrant requirement was not

present. Appellant concludes the trial court erred in failing to suppress all

evidence obtained as a result of the search.

“At the outset, we note that in terms of its effect upon a case, a plea of

nolo contendere is treated the same as a guilty plea.” Commonwealth v.

Jabbie, 200 A.3d 500, 505 (Pa.Super. 2018) (internal quotation marks

omitted). “Generally, upon entry of a guilty plea, a defendant waives all

claims and defenses other than those sounding in the jurisdiction of the court,

the validity of the plea, and what has been termed the legality of the sentence

imposed[.]” Commonwealth v. Prieto, 206 A.3d 529, 533-34 (Pa.Super.

2019) (internal quotation marks omitted). Moreover, “[a]n issue that is

waived is frivolous.” Commonwealth v. Tukhi, 149 A.3d 881, 888

(Pa.Super. 2016).

-5- J-A12027-20

Instantly, Appellant’s entry of the nolo contendere pleas resulted in the

waiver of his claim regarding the denial of his suppression motion. See

Prieto, supra. Because the claim is waived, we agree with counsel’s

determination that Appellant’s lone issue on appeal is wholly frivolous. See

Tukhi, supra. Further, our independent review of the record does not reveal

any additional, non-frivolous issues preserved on appeal. See Dempster,

supra; Palm, supra. Accordingly, we affirm the judgment of sentence and

grant counsel’s petition to withdraw.

Judgment of sentence affirmed. Petition to withdraw is granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/2/2020

-6-