Com. v. Thompson, J.

Superior Court of Pennsylvania·Decided November 30, 2016·No. 870 EDA 2016·Unpublished

Opinion

J-S75012-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA

JERMAINE THOMPSON

Appellant No. 870 EDA 2016

Appeal from the Judgment of Sentence February 22, 2016 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0004572-2015

BEFORE: BOWES, MOULTON AND MUSMANNO JJ.

MEMORANDUM BY BOWES, J.: FILED NOVEMBER 30, 2016

Jermaine Thompson appeals from the judgment of sentence of a fine

of $200, plus costs, imposed by the trial court after he pled guilty to

possession of a small amount of marijuana. Counsel filed a petition to

withdraw from representation and a brief pursuant to Anders v. California,

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

2009). We affirm and grant counsel’s petition to withdraw.

We rely on the facts from the affidavit of probable cause supporting

the complaint as those facts were incorporated into the guilty plea

proceedings in support of the factual basis for Appellant’s plea. At

approximately 12:31 a.m. on May 9, 2015, Officer John Esher of the

Haverford Township Police Department received a radio call to investigate a J-S75012-16

running silver Honda parked in front of a certain residence. Upon arriving at

that location, Officer Esher observed a silver Honda, occupied by Appellant

and one other individual, parked in front, and approached the vehicle and

knocked on the window. As Appellant opened his window, a plume of smoke

bellowed out of it. Officer Esher immediately recognized the odor of the

smoke as burnt marijuana. When the officer asked Appellant what they

were doing, Appellant replied, “smoking.” Affidavit of Probable Cause,

5/12/15, at 1. Officer Esher directed Appellant to exit the vehicle and asked

him whether there were any drugs or weapons in the car. Appellant

answered in the affirmative, and, upon inspection, the officer discovered a

small amount of marijuana within the vehicle.

Based on the foregoing, Appellant was charged with possession of a

small amount of marijuana. On February 22, 2016, Appellant entered a

negotiated guilty plea to the offense. The trial court conducted the

mandated colloquy and approved the plea arrangement. Appellant’s written

guilty plea statement was also entered into the record. The court accepted

Appellant’s guilty plea and sentenced him, in accordance with the negotiated

terms, to a $200 fine plus costs. Thereafter, Appellant filed a timely notice

of appeal.1 In lieu of a Rule 1925(b) statement of errors complained of on

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1 The notice of appeal was filed by counsel, who indicated that Appellant had requested that an appeal be pursued.

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appeal, counsel filed a statement of intent to file an Anders brief in

accordance with Pa.R.C.P. 1925(c)(4). The trial court then authored its Rule

1925(a) opinion.

Appellant’s counsel now files a petition to withdraw and an

accompanying Anders brief, asserting there are no non-frivolous issues to

be reviewed. In the Anders brief, counsel set forth the following as the

issue arguably supporting an appeal: “Whether the Lower Court should have

explored [Appellant’s] eligibility for the Accelerated Rehabilitative Disposition

[(“ARD”)] program during the guilty plea colloquy?” Anders brief at 1.

Since we do not address the merits of issues raised on appeal without

first reviewing a request to withdraw, we evaluate counsel’s petition to

withdraw at the outset. Commonwealth v. Cartrette, 83 A.3d 1030

(Pa.Super. 2013) (en banc). Counsel must meet three procedural

requirements in order to withdraw: 1) petition for leave to withdraw and

state that, after making a conscientious examination of the record, counsel

has concluded that the appeal is frivolous; 2) provide a copy of the Anders

brief to the defendant; and 3) inform the defendant that he has the right to

retain private counsel or raise, pro se, additional arguments that the

defendant deems worthy of the court’s attention. Id.

Counsel’s petition to withdraw provides that he made a thorough

review of the record and concluded that the appeal is wholly frivolous.

Counsel sent Appellant copies of the petition to withdraw and the Anders

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brief, and instructed him that he had the right to retain new counsel. In that

communication, counsel also expressed that Appellant could proceed pro se

and raise any issues he believed this Court should consider. Counsel mailed

these documents to Appellant at his last-known address, however, they were

returned with the notation, “Attempted. Not Known.” Letter to Superior

Court Prothonotary, 8/12/16, at unnumbered 1. As Appellant failed to notify

the Court or his attorney as to any changes in his address during the

pendency of this appeal, we find counsel has complied substantially with the

procedural requirements of Anders.

We now consider whether counsel’s Anders brief meets the

substantive elements of Santiago. Pursuant to Santiago, an 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, supra at 361.

Counsel provided the procedural posture and relevant factual

background with citations to the record. He presented argument tending to

support the appeal. Nevertheless, counsel concludes that Appellant’s appeal

is frivolous, setting forth reasons in support of that position, and case law

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that holds this issue would not entitled him to relief. Thus, counsel has

complied with the requirements of Anders/Santiago.

We now proceed to examine the issue presented by counsel in the

Anders brief. Counsel styles this claim as contending Appellant did not

enter his guilty plea knowingly, voluntarily, and intelligently. This assertion

concerns an exchange which occurred during the plea colloquy. After the

plea judge inquired whether Appellant had any additional information to

offer the court, Appellant informed the court that certain court notices were

being sent to the wrong address. The following discussion ensued:

Appellant: Yeah. And I guess they’ve been mailing it out to Townsend, Delaware. So that’s why I never was aware of the Court date, because I called my Public Defender, Tom, I guess. He said that I was – I called him like a couple of months ago. I was asking him about the ARD Program. And he was like, have they sent the letter to you? I was like, no, I haven’t gotten the letter. So he said, wait for a letter. But apparently, it’s being going to Townsend Delaware, which I never lived at.

Appellant’s Counsel: Your Honor, I do have him missing – I have no shows in here, 11/18, 12/16, 1/20, and then I guess I was assigned to it on February 1st.

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