Com. v. Thompson, N.

• Court: Superior Court of Pennsylvania
• Decided: February 19, 2025
• Docket: 2316 EDA 2023
• Status: Unpublished

Opinion

J-A06043-25

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : NEIL TYRONE THOMPSON : : Appellant : No. 2316 EDA 2023

Appeal from the Judgment of Sentence Entered August 14, 2023 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0001590-2023

BEFORE: PANELLA, P.J.E., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 19, 2025

Appellant Neil Tyrone Thompson appeals from the judgment of sentence

entered by the Court of Common Pleas of Delaware County after Appellant

pled guilty to Aggravated Assault1 and Persons Not to Possess a Firearm.2

Appellate counsel has filed an application to withdraw and a brief pursuant to

Anders v. California, 386 U.S. 738 (1967). After careful review, we affirm

the judgment of sentence and grant counsel’s application to withdraw.

On February 2, 2023, Appellant was charged with three counts of

Aggravated Assault, three counts of Recklessly Endangering Another Person

along with one count each of Persons Not to Possess a Firearm, Possession of

a Firearm Without a License, Possession of a Firearm with Manufacturer

Number Altered, and Possession of an Instrument of Crime. ____________________________________________

* Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S.A. § 2702(a)(4) (attempts to cause or causes bodily injury with a

deadly weapon). 2 18 Pa.C.S.A. § 6105(a)(1). J-A06043-25

On August 14, 2023, Appellant entered an open guilty plea to

Aggravated Assault and Persons Not to Possess a Firearm. Appellant

completed both written and oral plea colloquies. On the same day, the trial

court sentenced Appellant to an aggregate sentence of four to ten years’

imprisonment along with a consecutive two-year term of probation. On

August 27, 2023, Appellant filed a pro se notice of appeal.

On September 7, 2023, the trial court appointed Appellant new counsel

to represent Appellant on appeal. Appellant complied with the trial court’s

direction to file a Concise Statement of Errors Complained of on Appeal

pursuant to Pa.R.A.P. 1925(b). Thereafter, appellate counsel filed an

application to withdraw as counsel along with an Anders brief, claiming the

appeal lacked non-frivolous issues.

We must evaluate appellate counsel’s request to withdraw before we

reach the merits of the appeal to determine whether appellate counsel has

complied with the procedures set forth in Anders and its progeny.

Commonwealth v. Yorgey, 188 A.3d 1190, 1195 (Pa.Super. 2018) (en

banc). To do so, we are guided by the following principles:

Direct appeal counsel seeking to withdraw under Anders must file a petition averring that, after a conscientious examination of the record, counsel finds the appeal to be wholly frivolous. Counsel must also file an Anders brief setting forth issues that might arguably support the appeal along with any other issues necessary for the effective appellate presentation thereof ....

Anders counsel must also provide a copy of the Anders petition and brief to the appellant, advising the appellant of the right to retain new counsel, proceed pro se or raise any additional points worthy of this Court's attention.

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If counsel does not fulfill the aforesaid technical requirements of Anders, this Court will deny the petition to withdraw and remand the case with appropriate instructions (e.g., directing counsel either to comply with Anders or file an advocate's brief on Appellant's behalf). By contrast, if counsel's petition and brief satisfy Anders, we will then undertake our own review of the appeal to determine if it is wholly frivolous.

Commonwealth v. Falcey, 310 A.3d 313, 314–15 (Pa.Super. 2024) (quoting

Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa.Super. 2007)

(citations omitted)).

Our Supreme Court has also set forth substantive requirements for

counsel’s Anders brief, which 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 would arguably support 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.” Commonwealth v.

Santiago, 602 Pa. 159, 178-79, 978 A.2d 349, 361 (2009)). Therefore, a

fully compliant Anders brief 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.

If counsel meets the foregoing obligations, “it then becomes the

responsibility of the reviewing court to make a full examination of the

proceedings and make an independent judgment to decide whether the appeal

is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5. This Court has

also explained that:

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the Anders procedure requires this Court to review “the entire record with consideration first of the issues raised by counsel. ... [T]his review does not require this Court to act as counsel or otherwise advocate on behalf of a party. Rather, it requires us only to conduct a review of the record to ascertain if[,] on its face, there are non-frivolous issues that counsel, intentionally or not, missed or misstated. We need not analyze those issues of arguable merit; just identify them, deny the motion to withdraw, and order counsel to analyze them.

Yorgey, 188 A.3d at 1197.

In this case, appellate counsel has submitted both a petition to withdraw

and an Anders brief averring that this appeal is frivolous. Attached to

counsel’s application is a letter dated October 4, 2024, which properly advised

Appellant of his right to retain alternative counsel or raise supplemental

arguments on his own.3 Our review confirms that the Anders brief submitted

provides an adequate summary of the factual and procedural history of this

matter, along with a discussion of governing Pennsylvania law as applied to

these circumstances. Counsel explains why he believes the appeal is frivolous

based on applicable law. See id.

Based upon the foregoing, we conclude that appellate counsel complied

with the procedural requirements attendant to Anders. Therefore, we

proceed to review the merits of the issue raised in appellate counsel’s brief

and conduct an independent review of the record to determine if there are any

additional, non-frivolous issues not raised by counsel. Yorgey, supra.

Appellate counsel indicates that Appellant wished to challenge the

validity of his guilty plea based on his allegation that it was not knowingly, ____________________________________________

3 Appellant has not responded to appellate counsel’s application to withdraw.

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intelligently, and voluntarily entered. This Court has established six topics

that must be covered by a valid plea colloquy: “1) the nature of the charges,

2) the factual basis for the plea, 3) the right to a jury trial, 4) the presumption

of innocence, 5) the sentencing ranges, and 6) the plea court's power to

deviate from any recommended sentence.” Commonwealth v. Jabbie, 200

A.3d 500 (Pa.Super. 2018) (citation omitted); see Pa.R.Crim.P. 590, cmt.

Our review of the record reveals that Appellant completed an extensive

written guilty plea colloquy which thoroughly discussed the necessary topics

for the entry of a valid plea. Appellant placed his initials at each of the colloquy

paragraphs to indicated that he understood and agreed with the statements

set forth therein. Appellant also submitted to an oral colloquy on the record

at Appellant’s plea hearing in which he again acknowledged he understood the

ramifications of his guilty plea and was satisfied with the representation of his

trial counsel. Notes of Testimony, 8/14/23, at 5-8. We agree with appellate

counsel’s assessment that there is no evidence of record that would support

Appellant’s claim that his guilty plea was not knowing, intelligent, or voluntary.

To the extent that Appellant wishes to argue that trial counsel was

ineffective in advising him to enter the open guilty plea, we emphasize that

as a general rule, “claims of ineffective assistance of counsel are to be deferred

to PCRA review, … such claims should not be reviewed upon direct appeal.” 4

____________________________________________

4 While our Supreme Court has recognized exceptions to the general rule that

ineffectiveness claims be deferred to collateral review, none of those exceptions are applicable here.

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Commonwealth v. Holmes, 621 Pa. 595, 79 A.3d 562 (2013) (citing

Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002)).

For these reasons, we agree with appellate counsel that Appellant’s

challenge to the validity of his guilty plea is wholly frivolous. Furthermore,

our independent review of the entire record, as required pursuant to Anders,

reveals no additional non-frivolous claims. Yorgey, 188 A.3d at 1195.

Accordingly, we grant appellate counsel’s petition to withdraw and affirm the

judgment of sentence.

Petition to withdraw granted. Judgment of sentence affirmed.

Date: 2/19/2025

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