Com. v. Sylvester, C.

• Court: Superior Court of Pennsylvania
• Decided: September 8, 2022
• Docket: 2547 EDA 2021
• Status: Unpublished

Opinion

J-S30033-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CARTER SYLVESTER : : Appellant : No. 2547 EDA 2021

Appeal from the Judgment of Sentence Entered November 9, 2021 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0005370-2020

BEFORE: STABILE, J., McCAFFERY, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED SEPTEMBER 08, 2022

Carter Sylvester (Sylvester) contends in this direct appeal that he

entered a guilty plea due to the ineffective assistance of trial counsel and that

the Court of Common Pleas of Montgomery County (trial court) erred in

denying his post-sentence motion to withdraw the plea because he was

innocent of the charges. Appellate counsel for Sylvester has petitioned to

withdraw from the case, asserting that the appeal is frivolous. We grant

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

I.

This case arose from an incident in which a police officer encountered a

man walking toward incoming traffic on a highway turnpike. According to the

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* Retired Senior Judge assigned to the Superior Court. J-S30033-22

officer, this man gave the name, “Armani Osuji,” at which point the officer

patted him down for weapons, finding a handgun on his person. The officer

found no concealed weapon carry permits under the given name, and after

searching the man’s bag, the officer found “court paperwork” concerning the

recent arrest of “Carter Sylvester” in New York City for burglary.

Authorities in New York City provided the officer with a photograph of

the person referenced in the court paperwork and the image matched the face

of the person who the officer had encountered on the highway (Sylvester).

Sylvester was arrested and charged on October 10, 2020, with receiving a

stolen firearm (18 Pa.C.S. § 3925(a)); carrying a firearm without a license (18

Pa.C.S. § 6106(a)(2)); false identification to law enforcement (18 Pa.C.S.

§ 4914); possession of an instrument of crime (18 Pa.C.S. § 907(b)); and

pedestrian walking along or on highway (75 Pa.C.S. § 3544(c)).

On November 9, 2021, with the aid of counsel, Sylvester negotiated an

agreement in which the Commonwealth would drop the two latter charges in

exchange for Sylvester’s guilty plea as to the remaining three counts. The

Commonwealth agreed to request an aggregate sentence of two years of

probation and the trial court then sentenced Sylvester accordingly.1

1Sylvester had been sentenced to a minimum period equivalent to time served as to these counts, with a maximum prison term of 23 months. However, upon entering his guilty plea, Sylvester was immediately granted parole, effective from the date he initially went into custody on the subject charges, October 10, 2020. The maximum sentence ends on September 10, 2022.

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Just prior to entering the plea and being sentenced, Sylvester received

written and verbal plea colloquies. At the plea hearing, Sylvester had testified

that his counsel had reviewed the entire plea form with him and that he was

satisfied with counsel’s representation. Sylvester was given the opportunity

to consult with counsel prior to entering his plea and Sylvester declined.

Moreover, Sylvester testified that he had not been coerced or promised

anything in exchange for his guilty plea. See Transcript of Guilty Plea

Colloquy, 11/9/2022, at pp. 6-12.

Nevertheless, 12 days after the judgment of sentence was entered,

Sylvester claimed in a letter dated November 22, 2021, that his counsel was

ineffective in failing to seek the suppression of evidence, misadvising him that

he would have to wait up to four years to go to trial, and misadvising him

about the immigration consequences of entering a guilty plea. This letter was

deemed to be an untimely post-sentence motion because it was sent over ten

days after the date on which the judgment of sentence was entered.

Sylvester timely appealed, pro se, the judgment of sentence on

December 7, 2021.2 Counsel was appointed to represent Sylvester in the

appeal. The trial court entered an opinion on March 18, 2022, outlining the

reasons why Sylvester’s guilty plea was valid and the judgment of sentence

2 It appears that the trial court never entered an order ruling on Sylvester’s motion to withdraw his plea, and that Sylvester filed a direct appeal as to his judgment of sentence before any ruling on the motion was entered.

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should be affirmed. See Trial Court Opinion, 3/18/2022, at 1-6. No statement

of matters complained of on appeal, see Pa.R.A.P. 1925(b), was submitted on

Sylvester’s behalf, as the trial court had not ordered one to be filed.

On June 23, 2022, Sylvester’s appellate counsel submitted an

application to withdraw, along with an Anders brief in which counsel stated

that the appeal was entirely frivolous.3 The brief nevertheless raised five

issues relating to the validity of Sylvester’s guilty plea, all of which were

apparently gleaned from Sylvester’s post-sentence motion and discussions

between Sylvester and appellate counsel:

1. Trial Counsel failed to provide effective assistance of counsel in failing to file a motion to suppress evidence, giving the advice that [Sylvester] would have to wait three to four years for a trial date and that he failed to advise [him] of immigration consequences of a plea.

2. The plea was not knowing, intelligent and voluntary as [Sylvester] was forced into making a plea deal when he wasn’t guilty of anything, furthermore “lying to an officer” was a “lie and it’s unconstitutional.”

3. [Sylvester] is appealing that since [he] was illegally arrested for a summary offense that he never committed he was subjected to Double Jeopardy and illegal search and seizure.

4. [Sylvester] appeals the issue that the Officer did not present [Sylvester’s] Birth Certificate (with an alleged different name) that the Officer claimed was not real.

5. [Sylvester] is appealing because he was illegally convicted for producing real documents (with an alleged different name) to an ____________________________________________

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

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Officer because [Sylvester’s] name was one he [the Officer] never heard before.

Anders Brief, at 3-4 (suggested answers omitted).

Sylvester was sent a letter from appellate counsel advising him of his

right to retain new counsel, to proceed in the appeal pro se, and to raise any

additional issues to this Court. Sylvester has not filed a response to counsel’s

petition to withdraw.4

II.

First, as to appellate counsel’s petition to withdraw, we note that such

petitions may be granted if counsel has filed an Anders brief which satisfies

the following requirements:

[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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

Moreover, in the petition itself, counsel must state that counsel has

determined from a conscientious review of the record that the appeal is

frivolous. See Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.

4 The Commonwealth did not file a brief in this appeal.

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2007). Counsel must also provide a copy of the Anders brief to the appellant

and advise the appellant of the right to retain private counsel, proceed pro se,

or raise additional arguments. See id. Once it is determined that appellate

counsel has satisfied the above requirements, this Court may perform an

independent evaluation of the record to determine whether the appeal is

wholly frivolous. See Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.

Super. 2005).

In the present case, counsel’s brief satisfies the requirements of Anders

and Santiago. The brief provides a summary of the procedural history and

case facts, with citations to the record. Counsel has also provided a summary

of the record, raised issues that arguably support grounds for appellate relief,

and stated reasoned conclusions why those issues are frivolous. Finally,

counsel notified Sylvester of his request to withdraw by sending him a copy of

the Anders brief and a letter explaining his right to retain new counsel or

proceed pro se, as well as the right to raise any issues he believes might have

merit.

Because counsel has satisfied the procedural requirements for

withdrawal from the appeal, we may examine the claims raised in the brief to

determine if they are frivolous. See Anders, 386 U.S. at 744; Rojas, 874

A.2d at 639.

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III.

A.

Sylvester’s first claim is that trial counsel was ineffective in failing to file

a motion to suppress evidence, misadvising Sylvester that a trial could not

take place for up to four years, and misadvising Sylvester about the

immigration consequences of a plea.

Claims concerning the alleged ineffective assistance of counsel are

usually deferred until the post-conviction stage5 and not reviewed on the

merits during a direct appeal. See Commonwealth v. Holmes, 79 A.3d 562,

563 (Pa. 2013). Two recognized exceptions are where (a) “a discrete claim

(or claims) of trial counsel ineffectiveness is apparent from the record and

meritorious to the extent that immediate consideration best serves the

interests of justice,” and (b) “where the defendant seeks to litigate multiple

or prolix claims of counsel ineffectiveness, including non-record based claims,

on post-verdict motions and direct appeal” but only where good cause is

shown and post-conviction review of the claim has already been waived. Id.;

see also Commonwealth v. Delgros, 183 A.3d 352, 355 (Pa. 2018)

(enumerating two Holmes exceptions to rule deferring ineffectiveness claims

to collateral review stage). Trial courts may review the merits of

5 Post-conviction claims, including those relating to the ineffective assistance of counsel, are governed by the Post-Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546 (PCRA).

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ineffectiveness claims at their discretion if one of these exceptions is met.

See Holmes, 79 A.3d at 563.

Here, the trial court did not abuse its discretion in declining to consider

the merits of Sylvester’s ineffectiveness claims in this case because neither of

the above exceptions were satisfied. As to the first exception, the certified

record includes Sylvester’s written and oral plea colloquies in which he

expressly stated that his plea was voluntary and that he was satisfied with his

trial counsel’s representation. See Transcript of Guilty Plea Colloquy,

11/9/2022, at pp. 6-7. “A defendant is bound by the statements made during

the plea colloquy, and a defendant may not later offer reasons for withdrawing

the plea that contradict statements made when he pled.” Commonwealth

v. Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012) (quoting Commonwealth

v. McCauley, 797 A.2d 920, 922 (Pa. Super. 2001)).

In light of the binding sworn statements, Sylvester has not

demonstrated how the merit of any of his ineffectiveness claims are apparent

from the record to the extent that immediate consideration would serve the

interests of justice. All of his ineffectiveness claims – including the alleged

misadvice by counsel and counsel’s failure to file a meritorious suppression

motion – would require additional evidence that is not included in the record.

As to the second exception, Sylvester has not demonstrated that he

waived the right to assert ineffectiveness claims at the post-conviction stage.

To the contrary, the plea colloquies reflect that Sylvester retained that right.

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He, therefore, failed to establish good cause why the merits of his

ineffectiveness claims should immediately be considered. Thus, the trial court

did not abuse its discretion in determining that Sylvester’s ineffectiveness

claims should be deferred to the post-conviction stage should he choose to

avail himself of that option at a later time.

B.

Sylvester’s second claim is that he did not enter a valid plea because he

was forced to enter it despite his innocence. This claim is both waived and

unsupported by the record.

In an appeal from a judgment of sentence resulting from a guilty plea,

a defendant may only challenge the jurisdiction of the court, the legality of

the sentence, and the validity of the plea. See Commonwealth v.

Montgomery, 401 A.2d 318, 319 (Pa. 1979). Sylvester does not dispute that

the trial court had jurisdiction over his case or that he received a legal

sentence. This Court has found no basis for such a claim in its independent

review of the record.

Although the claim is rather undeveloped, Sylvester’s argument seems

to be that he was compelled to enter his plea involuntarily despite his

innocence as to all three counts he pleaded guilty to.6 This claim was waived

6 A guilty plea is not valid unless it is knowing, intelligent and voluntary. See Commonwealth v. Kelley, 136 A.3d 1007, 1013 (Pa. Super. 2016). In order to ensure the validity of a plea, a court must give the defendant an oral or (Footnote Continued Next Page)

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because Sylvester failed to raise it in a post-sentence motion filed within ten

days from the date his sentence was imposed. Under Pa.R.Crim.P. 720(A)(1),

“a written post-sentence motion shall be filed no later than 10 days after

imposition of sentence.” Sylvester was sentenced on November 9, 2021, and

he sent his post-sentence motion 12 days later, making it untimely.

Even if Sylvester had preserved the issue of an involuntary plea with a

timely post-sentence motion, he would have still waived the claim for purposes

of appeal through the sworn statements he gave in his plea colloquies. The

decision of whether to allow a defendant to withdraw a plea “is within the

sound discretion of the trial court.” Commonwealth v. Hart, 174 A.3d 660,

664 (Pa. Super. 2017). When ruling on a post-sentence motion to withdraw

a plea, a defendant must show that a “manifest injustice” would result from

the motion’s denial. Commonwealth v. Broaden, 980 A.32 124, 129 (Pa.

Super. 2009). “Manifest injustice may be established if the plea was not

tendered knowingly, intelligently, and voluntarily” and this evaluation must

involve examination of “the totality of the circumstances surrounding the

plea.” Id.

written plea colloquy. See Commonwealth v. Moser, 921 A.2d 526, 529 (Pa. Super. 2007). The colloquy must demonstrate that the defendant understands: (1) the nature of the charges; (2) the factual basis for the plea; (3) the right to trial by jury; (4) the presumption of innocence; (5) the permissible ranges of sentences and fines; and (6) that the court is not bound by the terms of a plea agreement. See Kelley, 136 A.3d at 1013.

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The record shows here that in his plea colloquies, Sylvester expressly

admitted the factual basis for his guilty plea as to all three counts. See

Transcript of Guilty Plea Colloquy, 11/9/2022, at pp. 9-10. Sylvester admitted

that he falsely identified himself to a police officer, that he had received a

stolen firearm, and that he was carrying the firearm without a license. Id.

He also expressly waived the right to dispute the factual basis of the

plea, including the sworn account of the arresting officer. Since Sylvester is

bound by the sworn statements he gave during his plea colloquies, he cannot

now contradict himself in order to withdraw his plea. See Commonwealth

v. Orlando, 156 A.3d 1274, 1281 (Pa. Super. 2017). Thus, because

Sylvester’s post-sentence motion was untimely and because the record does

not support his contention that his plea was involuntary, the trial court did not

abuse its discretion in declining to allow him to withdraw his plea.

C.

Sylvester’s third, fourth and fifth claims all raise similar challenges to

the factual basis for his guilty plea. The common premise of each of these

claims is that Sylvester’s three convictions are “illegal” because he was initially

detained for correctly identifying himself to the arresting officer as “Armani

Osuji” (i.e., the real name of the above-captioned appellant is not “Carter

Sylvester”).

Again, Sylvester waived the right to assert these claims when he agreed

to the factual basis of his plea in his colloquies. See Montgomery, 401 A.2d

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at 319 (Defendant’s claims on direct appeal following entry of guilty plea are

limited to challenging the jurisdiction of the court, the legality of the sentence,

and the validity of the plea). Thus, no appellate relief is due.

Petition to withdraw granted. Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/8/2022

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