Com. v. Shorter, R.

• Court: Superior Court of Pennsylvania
• Decided: September 13, 2021
• Docket: 896 EDA 2020
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RAYMOND SHORTER : : APPELLANT : No. 896 EDA 2020

Appeal from the Judgment of Sentence Entered October 4, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006293-2016

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM BY McLAUGHLIN, J.: FILED SEPTEMBER 13, 2021

Raymond Shorter appeals from the judgment of sentence entered

following his guilty plea to three violations of the Uniform Firearms Act.

Shorter’s counsel has filed an Anders1 brief and a petition to withdraw as

counsel, and Shorter has filed a pro se response. We grant counsel’s petition

to withdraw and affirm the judgment of sentence.

Shorter entered an open guilty plea on May 11, 2017, to Persons Not to

Possess Firearms, Firearms Not to Be Carried Without License, and Carrying

Firearms on Public Streets or Public Property in Philadelphia.2 Sentencing was

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* Former Justice specially assigned to the Superior Court.

1 Anders v. California, 386 U.S. 738 (1967) and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).

2 18 Pa.C.S.A. §§ 6105, 6106, and 6108, respectively. J-S16021-21

held on October 4, 2017. Prior to sentencing, Shorter filed a motion to

withdraw his guilty plea. However, at the start of the sentencing hearing,

Shorter’s counsel, in the presence of Shorter, withdrew the motion to

withdraw Shorter’s guilty plea. Shorter did not oppose going forward with

sentencing at that time. The court then sentenced Shorter to an aggregate

term of three to six years’ incarceration, followed by five years’ probation.

Shorter did not file a direct appeal at that time. However, following Post-

Conviction Relief Act (“PCRA”)3 proceedings, the trial court reinstated

Shorter’s direct appellate rights. This timely appeal followed.

Counsel’s Anders brief identifies two potential issues: (1) whether

Shorter’s guilty plea was entered into knowingly, voluntarily and intelligently

and (2) whether the court abused its discretion in imposing Shorter’s

sentence. Shorter’s pro se response to counsel’s Anders brief raises three

additional claims: (1) that the sentencing court failed to give him an oral plea

colloquy, (2) the court sentenced him after granting his motion to withdraw

his guilty plea, and (3) the court erred when it denied his pre-trial motion to

suppress.4

3 42 Pa.C.S.A. §§ 9541-9546.

4 Shorter also filed a pro se motion requesting that the Commonwealth’s brief

be stricken for failure to file a timely brief, even after extensions were granted by this Court. Although the Commonwealth did indeed file its brief late, which this Court does not condone, we decline to strike the brief because Shorter has not identified any prejudice and we perceive none, since we would reach the same result even in the complete absence of the Commonwealth’s brief.

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Before reviewing counsel’s Anders brief and Shorter’s response, we

must first determine whether counsel has satisfied the necessary

requirements for withdrawing as counsel. 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”). In order to withdraw pursuant to Anders, counsel must: 1)

petition the court for leave to withdraw stating that, after a conscientious

examination of the record, counsel has determined that the appeal would be

frivolous; 2) furnish a copy of the brief to the client; and 3) advise the client

that he or she has the right to retain other counsel or proceed pro se.

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 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 of the above obligations, “it then becomes the responsibility of the

reviewing court to make a full examination of the proceedings and make an

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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, we find that counsel has complied with all of the above

requirements. In his Anders brief, counsel has provided a summary of the

procedural and factual history of the case with citations to the record. Further,

counsel’s brief identifies two issues that could arguably support the appeal, as

well as counsel’s assessment of why the appeal is frivolous, with controlling

case law and citations to the record. Additionally, counsel served Shorter with

a copy of the Anders brief and advised him of his right to proceed pro se or

to retain a private attorney to raise any additional points he deemed worthy

of this Court’s review. Petition to Withdraw, 11/6/20, at ¶ 4. As counsel has

met the requirements of Anders and Santiago, we will proceed to the issues

counsel has identified.

The first issue presented in counsel’s Anders brief is whether Shorter’s

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

must be all three. 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 knowingly 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

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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 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). Further, 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. Pollard, 832 A.2d at 523.

Here, the record contains both a written and oral colloquy, wherein

Shorter acknowledged that it was his signature on the written colloquy and

that he understood he did not have to plead guilty, he had the right to a jury

trial, the Commonwealth bore the burden at trial of proving guilt beyond a

reasonable doubt, and his decision to plead guilty was not the result of any

coercion or promises. N.T. Guilty Plea, 5/11/17, at 5-11. The court also

explained the nature of the charges to which Shorter was pleading guilty, the

factual basis for the plea, and his potential range of sentence and fines. Id.

at 6, 8, 12-13.

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

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

and voluntary. Accordingly, Shorter’s claim that his plea was defective is

frivolous.

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

court abused its discretion in imposing Shorter’s sentence. 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), appeal denied, 206 A.3d 1029 (Pa.

2019). 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”).

Shorter’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

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

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, Shorter’s claim fails because he did not preserve this

issue. “[I]ssues challenging the discretionary aspects of sentencing must be

raised in a post-sentence motion or by raising the claim during the sentencing

proceedings” or they are waived. Commonwealth v. Mann, 820 A.2d 788,

794 (Pa.Super. 2003). Since Shorter did not raise the issue in a post-sentence

motion or at sentencing, this claim is waived. Accordingly, this challenge to

the discretionary aspects of Shorter’s sentence would be frivolous.

We now turn to the issues raised in Shorter’s pro se response to

counsel’s Anders brief.5 Shorter first contends that the court erred when it

failed to give an oral on-the-record colloquy of his open plea. The record belies

this claim. As previously noted, the court gave Shorter an oral colloquy at his

plea hearing. See N.T. Guilty Plea, at 5-11. There was no defect in the oral

colloquy. Therefore, this claim is without merit.

5 See Commonwealth v. Baney, 860 A.2d 127, 129 (Pa.Super. 2004) (explaining that after reviewing the issues raised in an Anders brief, this Court shall then consider the merits of the issues raised in a pro se brief if one is filed within a reasonable amount of time).

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Shorter next contends that the court erred when it sentenced him after

granting his motion to withdraw his guilty plea. Again, the record contradicts

Shorter’s assertion. Although Shorter filed a motion to withdraw his guilty

plea, his counsel withdrew that motion in open court, in Shorter’s presence

and without any objection from Shorter, at the sentencing hearing. See N.T.

Sentencing, at 3-4. Thus, Shorter’s claim that the court granted his motion to

withdraw his guilty plea is false.6

Shorter’s final issue is that the court erred when it denied his pre-trial

motion to suppress. This claim is without merit. Barring a conditional plea

agreement,7 a guilty plea “waives all defects and defenses except those

concerning the validity of the plea, the jurisdiction of the trial court, and the

legality of the sentence imposed.” Commonwealth v. Stradley, 50 A.3d

769, 771 (Pa.Super. 2012). Here, as part of his agreement to plead guilty,

Shorter agreed to forego the right to file any pre-trial motions and defenses.

See N.T. Guilty Plea, at 7; Written Guilty Plea Colloquy, at 2. He also gave up

the right to appeal any decisions that were already made on pre-trial motions

in his case, including his motion to suppress. See Written Guilty Plea Colloquy,

6 The lower court’s docket reflects that Shorter’s motion to withdraw his guilty

plea was granted on October 4, 2017. However, in its Pa.R.A.P. 1925(a) opinion, the court stated that the motion was “inadvertently granted” before the motion was withdrawn. Trial Court Opinion, 7/28/20, at 1. This is consistent with the sentencing hearing transcript in which counsel expressly withdrew the motion and then proceeded to participate in the sentencing hearing with Shorter present.

7 See Commonwealth v. Singleton, 169 A.3d 79 (Pa.Super. 2017).

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at 2. Accordingly, we conclude that Shorter waived this issue by entering his

guilty plea.

In short, we find that the issues raised in counsel’s Anders brief and

Shorter’s pro se brief are wholly frivolous. Further, after an independent

review of the record, we conclude that no other, non-frivolous issue exists.

Therefore, we grant counsel’s petition to withdraw. Having determined that

the appeal is wholly frivolous, we affirm the judgment of sentence.

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

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/13/2021

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