J-S34021-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MICHAEL JONATHAN TOLES : : Appellant : No. 330 WDA 2024
Appeal from the Judgment of Sentence Entered July 31, 2023 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0000717-2020
BEFORE: DUBOW, J., LANE, J., and STEVENS, P.J.E.*
MEMORANDUM BY LANE, J.: FILED: November 27, 2024
Michael Jonathan Toles (“Toles”) appeals from the judgment of sentence
imposed following the entry of his negotiated guilty plea to third-degree
murder.1 Additionally, Toles’ court-appointed counsel, Jessica A. Fiscus,
Esquire (“Attorney Fiscus”), has filed a petition to withdraw from
representation and a brief styled pursuant to Anders v. California, 386 U.S.
738 (1967). We grant Attorney Fiscus’ petition and affirm the judgment of
sentence.
In January 2020, Toles and his three accomplices conspired to rob Devin
Way in a drug transaction. During the robbery, one of the accomplices shot
Way, resulting in his death. Police arrested Toles and charged him with
second-degree murder and related offenses. While in custody, Toles ____________________________________________
* Former Justice specially assigned to the Superior Court.
1 See 18 Pa.C.S.A. § 2502(c). J-S34021-24
cooperated with the Commonwealth, testified against two of his accomplices,
and acknowledged his role in the events leading up to the murder.2
On June 1, 2023, Toles entered a negotiated guilty plea to third-degree
murder and the Commonwealth agreed to nolle prosequi the remaining
charges against him. As part of the plea agreement, the parties agreed to a
sentencing recommendation of twelve and one-half to forty years’
incarceration. The parties additionally agreed to recommend that Toles serve
his sentence outside of Pennsylvania for his protection, as he received multiple
threats and sustained injuries due to his cooperation with the Commonwealth.
Toles signed and executed a written plea colloquy wherein he acknowledged
that he entered the plea voluntarily, knowingly, and intelligently. On the
record, Toles confirmed his execution and understanding of the terms of the
written plea colloquy and the consequences of his plea. As a result, the trial
court accepted Toles’ guilty plea, but deferred sentencing for the preparation
of a presentence investigation report.
On July 31, 2023, the trial court sentenced Toles to the recommended
sentence of twelve and one-half to forty years’ incarceration outside of
Pennsylvania. Toles filed a counseled motion to reconsider his sentence,
requesting that the court reduce his sentence based on numerous mitigating
factors, including his age, familial circumstances and support, and his
____________________________________________
2 The remaining accomplice, Melissa Ann Seaman, also testified for the Commonwealth against the two other accomplices and similarly entered a negotiated guilty plea for her role in the robbery and murder.
-2- J-S34021-24
cooperation with law enforcement. The trial court held a hearing on the
motion, and on February 16, 2024, ultimately denied relief.3 Toles filed a
counseled timely notice of appeal,4 and the trial court ordered him to file a
concise statement pursuant to Pa.R.A.P. 1925(b). However, in lieu of filing a
concise statement, Attorney Fiscus filed a petition to withdraw and an Anders
brief. Toles did not respond to the petition to withdraw or the Anders brief.
Before we may address the merits of the issue raised in the Anders
brief, we must first assess the petition to withdraw from representation to
determine whether it meets certain procedural requirements. See
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en
banc). An Anders brief that accompanies a request 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. ____________________________________________
3 As Toles could no longer afford to retain his private counsel, the trial court
appointed Attorney Fiscus to represent Toles in connection with his appeal.
4 Toles had thirty days from the denial of his post-sentence motion on February 16, 2024, to timely file a notice of appeal. See Pa.R.A.P. 903(a). However, because the thirtieth day fell on a weekend, Toles had until the following Monday, March 18, 2024, to timely file a notice of appeal. See 1 Pa.C.S.A. § 1908 (excluding weekends and holidays from the computation of time when the last day of the time period falls on a weekend or holiday). The trial court docket originally indicated that Toles’ notice of appeal was filed on March 19, 2024, outside of the thirty-day appeal period. However, the clerk of courts stamped the notice of appeal as received on March 18, 2024, the final day to timely file a notice of appeal. Accordingly, this Court directed the trial court to correct this clerical error on the docket, and the trial court thereafter complied.
-3- J-S34021-24
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). Counsel must
also provide a copy of the Anders brief to the client, and a letter that advises
the client of the 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) (citation omitted). If counsel has satisfied these requirements,
we then conduct “a full examination” of the record “to decide whether the case
is wholly frivolous.” Commonwealth v. Dempster, 187 A.3d 266, 271 (Pa.
Super. 2018) (en banc) (quoting Anders, 386 U.S. at 744).
Here, in the Anders brief, Attorney Fiscus provided a procedural and
factual history of the case with citations to the record, discussed the issue
arguably supporting the appeal, and explained why she concluded the issue
was frivolous. See Anders Brief at 9-14, 16-18. Attorney Fiscus also mailed
a copy of the Anders brief to Toles and in her cover letter advised him that
he could raise any additional issues before this Court pro se or with private
counsel. See Petition to Withdraw, 7/10/24, Exhibit A. As Attorney Fiscus
has substantially complied with the requirements of Anders and Santiago,
we will conduct an independent review to determine whether the appeal is
frivolous.
-4- J-S34021-24
In the Anders brief, Attorney Fiscus identifies the following issue for our
review: “Did the trial court commit an abuse of discretion when it imposed
[Toles’] sentence due to the mitigating factors of [Toles’] age, family support,
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J-S34021-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MICHAEL JONATHAN TOLES : : Appellant : No. 330 WDA 2024
Appeal from the Judgment of Sentence Entered July 31, 2023 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0000717-2020
BEFORE: DUBOW, J., LANE, J., and STEVENS, P.J.E.*
MEMORANDUM BY LANE, J.: FILED: November 27, 2024
Michael Jonathan Toles (“Toles”) appeals from the judgment of sentence
imposed following the entry of his negotiated guilty plea to third-degree
murder.1 Additionally, Toles’ court-appointed counsel, Jessica A. Fiscus,
Esquire (“Attorney Fiscus”), has filed a petition to withdraw from
representation and a brief styled pursuant to Anders v. California, 386 U.S.
738 (1967). We grant Attorney Fiscus’ petition and affirm the judgment of
sentence.
In January 2020, Toles and his three accomplices conspired to rob Devin
Way in a drug transaction. During the robbery, one of the accomplices shot
Way, resulting in his death. Police arrested Toles and charged him with
second-degree murder and related offenses. While in custody, Toles ____________________________________________
* Former Justice specially assigned to the Superior Court.
1 See 18 Pa.C.S.A. § 2502(c). J-S34021-24
cooperated with the Commonwealth, testified against two of his accomplices,
and acknowledged his role in the events leading up to the murder.2
On June 1, 2023, Toles entered a negotiated guilty plea to third-degree
murder and the Commonwealth agreed to nolle prosequi the remaining
charges against him. As part of the plea agreement, the parties agreed to a
sentencing recommendation of twelve and one-half to forty years’
incarceration. The parties additionally agreed to recommend that Toles serve
his sentence outside of Pennsylvania for his protection, as he received multiple
threats and sustained injuries due to his cooperation with the Commonwealth.
Toles signed and executed a written plea colloquy wherein he acknowledged
that he entered the plea voluntarily, knowingly, and intelligently. On the
record, Toles confirmed his execution and understanding of the terms of the
written plea colloquy and the consequences of his plea. As a result, the trial
court accepted Toles’ guilty plea, but deferred sentencing for the preparation
of a presentence investigation report.
On July 31, 2023, the trial court sentenced Toles to the recommended
sentence of twelve and one-half to forty years’ incarceration outside of
Pennsylvania. Toles filed a counseled motion to reconsider his sentence,
requesting that the court reduce his sentence based on numerous mitigating
factors, including his age, familial circumstances and support, and his
____________________________________________
2 The remaining accomplice, Melissa Ann Seaman, also testified for the Commonwealth against the two other accomplices and similarly entered a negotiated guilty plea for her role in the robbery and murder.
-2- J-S34021-24
cooperation with law enforcement. The trial court held a hearing on the
motion, and on February 16, 2024, ultimately denied relief.3 Toles filed a
counseled timely notice of appeal,4 and the trial court ordered him to file a
concise statement pursuant to Pa.R.A.P. 1925(b). However, in lieu of filing a
concise statement, Attorney Fiscus filed a petition to withdraw and an Anders
brief. Toles did not respond to the petition to withdraw or the Anders brief.
Before we may address the merits of the issue raised in the Anders
brief, we must first assess the petition to withdraw from representation to
determine whether it meets certain procedural requirements. See
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en
banc). An Anders brief that accompanies a request 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. ____________________________________________
3 As Toles could no longer afford to retain his private counsel, the trial court
appointed Attorney Fiscus to represent Toles in connection with his appeal.
4 Toles had thirty days from the denial of his post-sentence motion on February 16, 2024, to timely file a notice of appeal. See Pa.R.A.P. 903(a). However, because the thirtieth day fell on a weekend, Toles had until the following Monday, March 18, 2024, to timely file a notice of appeal. See 1 Pa.C.S.A. § 1908 (excluding weekends and holidays from the computation of time when the last day of the time period falls on a weekend or holiday). The trial court docket originally indicated that Toles’ notice of appeal was filed on March 19, 2024, outside of the thirty-day appeal period. However, the clerk of courts stamped the notice of appeal as received on March 18, 2024, the final day to timely file a notice of appeal. Accordingly, this Court directed the trial court to correct this clerical error on the docket, and the trial court thereafter complied.
-3- J-S34021-24
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). Counsel must
also provide a copy of the Anders brief to the client, and a letter that advises
the client of the 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) (citation omitted). If counsel has satisfied these requirements,
we then conduct “a full examination” of the record “to decide whether the case
is wholly frivolous.” Commonwealth v. Dempster, 187 A.3d 266, 271 (Pa.
Super. 2018) (en banc) (quoting Anders, 386 U.S. at 744).
Here, in the Anders brief, Attorney Fiscus provided a procedural and
factual history of the case with citations to the record, discussed the issue
arguably supporting the appeal, and explained why she concluded the issue
was frivolous. See Anders Brief at 9-14, 16-18. Attorney Fiscus also mailed
a copy of the Anders brief to Toles and in her cover letter advised him that
he could raise any additional issues before this Court pro se or with private
counsel. See Petition to Withdraw, 7/10/24, Exhibit A. As Attorney Fiscus
has substantially complied with the requirements of Anders and Santiago,
we will conduct an independent review to determine whether the appeal is
frivolous.
-4- J-S34021-24
In the Anders brief, Attorney Fiscus identifies the following issue for our
review: “Did the trial court commit an abuse of discretion when it imposed
[Toles’] sentence due to the mitigating factors of [Toles’] age, family support,
family circumstances, substantial cooperation, and the threats and injuries
faced due to his cooperation?” Anders Brief at 8.
The sole issue Attorney Fiscus identifies in the Anders brief presents a
challenge to the discretionary aspects of Toles’ sentence. Generally, upon the
entry of a guilty plea, a defendant waives all claims and defenses other than
those sounding in the jurisdiction of the court, the validity of the plea, and the
legality of the sentence imposed. See Commonwealth v. Eisenberg, 98
A.3d 1268, 1275 (Pa. 2014) (holding that the proper entry of a guilty plea
acts to extinguish virtually all legal challenges that could have been brought
upon the trial or appeal of the case). Additionally, “[w]here the plea
agreement contains a negotiated sentence which is accepted and imposed
by the sentencing court, there is no authority to permit a challenge to the
discretionary aspects of that sentence.” Commonwealth v. Dalberto, 648
A.2d 16, 20 (Pa. Super. 1994) (emphasis in original).
Here, Toles does not contend that the trial court lacked jurisdiction over
the instant criminal proceedings, that his plea was not entered voluntarily,
knowingly, or intelligently, or that his sentence is illegal. Instead, Toles
argues the trial court abused its discretion by imposing a sentence of twelve
and one-half to forty years’ incarceration in light of the mitigating
circumstances that he presented both at sentencing and in his motion for
-5- J-S34021-24
reconsideration. Regardless of these mitigating circumstances, however,
Toles’ agreement to a specific sentence when he entered his negotiated guilty
plea coupled with the trial court’s imposition of the agreed-upon sentence
precludes him from challenging the discretionary aspects of his sentence on
appeal. See Dalberto, 648 A.2d at 21; see also Eisenberg, 98 A.3d at
1275. Thus, we conclude that this issue is wholly frivolous.
Additionally, our independent review of the record discloses no non-
frivolous issue that counsel may have missed. See Dempster 187 A.3d at
271. Therefore, we grant Attorney Fiscus’ petition to withdraw and affirm
Toles’ judgment of sentence.
Petition to withdraw granted. Judgment of sentence affirmed.
DATE: 11/27/2024
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