Com. v. Swing, L.

Superior Court of Pennsylvania

Com. v. Swing, L.

DecidedJuly 6, 2016

Docket2818 EDA 2015

StatusUnpublished

This text of Com. v. Swing, L. (Com. v. Swing, L.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Com. v. Swing, L., (Pa. Ct. App. 2016).

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Opinion

J-S32026-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

LISA SWING

Appellant No. 2818 EDA 2015

Appeal from the Judgment of Sentence July 7, 2015 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0002204-2015

BEFORE: BOWES, J., MUNDY, J., and PLATT, J.*

MEMORANDUM BY MUNDY, J.: FILED JULY 06, 2016

Appellant, Lisa Swing, appeals from the July 7, 2015 aggregate

judgment of sentence of 5 to 10 years’ imprisonment, followed by 12 years’

probation, imposed following her entry of a negotiated guilty plea to robbery

with serious bodily injury inflicted, burglary, and criminal conspiracy.1

Contemporaneously with this appeal, Appellant’s counsel has filed a petition

to withdraw and an Anders2 brief, stating that the appeal is wholly frivolous.

After careful review, we affirm and grant counsel’s petition to withdraw.

____________________________________________

* Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S.A. §§ 3701(a)(1)(ii), 3502(a)(1), and 903. 2 Anders v. California, 386 U.S. 738 (1967). J-S32026-16

The trial court has set forth the relevant factual history as follows.

On February 19, 2015[, Appellant] entered her friend’s apartment bearing two cups of coffee. Her friend, the Victim, turned to walk back in the apartment and was accosted by two men, [Appellant]’s co-conspirators. One man had a gun. The Victim was shocked with a stun gun and immobilized. Duct tape was applied to her eyes, hands and legs. Her pocketbook and jewelry were taken. A neighbor heard the commotion and called the police. [Appellant] and her co-conspirators were apprehended in a stolen truck and [Appellant] had the Victim’s stolen jewelry in her jacket pocket.

Trial Court Opinion, 10/23/15, at 1.

On July 7, 2015, Appellant initialed each paragraph of, signed, and

dated a negotiated guilty plea agreement. Following an on the record

colloquy, Appellant pled guilty to the aforementioned crimes. N.T., 7/7/15,

at 7. Appellant was sentenced the same day to an aggregate term of 5 to

10 years’ imprisonment, followed by 12 years’ probation, which was the

recommended sentence in the plea agreement. On July 10, 2015, Appellant

filed a timely post sentence motion to withdraw her guilty plea stating she

“had done nothing wrong and wished to have a trial.” Motion to Withdraw

Guilty Plea, 7/10/15, at ¶ 5. On August 19, 2015, a hearing was held on

Appellant’s motion. On August 20, 2015, the trial court denied Appellant’s

motion. On September 17, 2015, Appellant filed a timely notice of appeal.3

3 On September 22, 2015, the trial court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pennsylvania Rule (Footnote Continued Next Page)

-2- J-S32026-16

On October 23, 2015, the trial court filed its Rule 1925(a) opinion. On

January 7, 2016, counsel filed, with this Court, a motion to withdraw.

Appellant has not filed a response to counsel’s Anders brief or motion to

withdraw.

In his Anders Brief, counsel has raised the following issue for our

review.

Whether the [trial c]ourt should have further explored the statements made by [Appellant] during the hearing on her motion to withdraw the guilty plea which suggested that she was innocent of the charges, was coerced into pleading guilty, was confused at the time, and that her medication kept her from entering a knowing, voluntary and intelligent plea?

Anders Brief at 2.

“When presented with an Anders brief, this Court may not review the

merits of the underlying issues without first passing on the request to

withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.

2010) (citation omitted). Additionally, an Anders brief shall comply with the

requirements set forth by our Supreme Court in Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009).

[W]e hold that in the Anders brief that accompanies court-appointed counsel’s petition to _______________________ (Footnote Continued)

of Appellate Procedure 1925(b). On October 9, 2015, counsel filed a statement of his intent to file an Anders brief in lieu of a concise statement, pursuant to Rule 1925(c)(4).

-3- J-S32026-16

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 361.

Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.

2005), and its progeny, counsel seeking to withdraw on direct appeal must

also meet the following obligations to his or her client.

Counsel also must provide a copy of the Anders brief to his client. Attending the brief must be a letter that advises the client of [her] right to: (1) retain new counsel to pursue the appeal; (2) proceed pro se on appeal; or (3) raise any points that the appellant deems worthy of the court[’]s attention in addition to the points raised by counsel in the Anders brief.

Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (internal

quotation marks and citation omitted). “Once counsel has satisfied the

above requirements, it is then this Court’s duty to conduct its own review of

the trial court’s proceedings and render an independent judgment as to

whether the appeal is, in fact, wholly frivolous.” Commonwealth v.

Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc), quoting

Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004). Further,

“this Court must conduct an independent review of the record to discern if

-4- J-S32026-16

there are any additional, non-frivolous issues overlooked by counsel.”

Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015)

(footnote and citation omitted).

In this appeal, we conclude that counsel’s Anders brief complies with

the requirements of Santiago. First, counsel has provided a procedural and

factual summary of the case with references to the record. Anders Brief at

3-4. Second, counsel advances relevant portions of the record that arguably

support Appellant’s claims on appeal. Id. at 5-7. Third, counsel noted,

“[a]fter reviewing the record in this case, counsel has concluded that this

appeal is frivolous.” Id. at 8. Lastly, counsel has complied with the

requirements set forth in Millisock. See Letter from Counsel to Appellant,

dated 1/8/16. As a result, we proceed to conduct an independent review to

ascertain if the appeal is indeed wholly frivolous.

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