Com. v. Westbrook, S.

• Court: Superior Court of Pennsylvania
• Decided: August 7, 2023
• Docket: 1725 MDA 2022
• Status: Unpublished

Opinion

J-S15038-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SHIANNE DAWN WESTBROOK : : Appellant : No. 1725 MDA 2022

Appeal from the Judgment of Sentence Entered November 14, 2022 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0000531-2022

BEFORE: BOWES, J., STABILE, J., and SULLIVAN, J.

MEMORANDUM BY SULLIVAN, J.: FILED: AUGUST 7, 2023

Shianne Dawn Westbrook (“Westbrook”) appeals from the judgment of

sentence following her plea of nolo contendere to conspiracy to commit

criminal use of a communication facility.1 Additionally, Westbrook’s counsel

(“Counsel”) has filed a petition to withdraw and an accompanying brief

pursuant to Anders v. California, 386 U.S. 738 (1967) and Commonwealth

v. Santiago, 978 A.2d 349 (Pa. 2009). We grant Counsel’s petition to

withdraw and affirm.

The relevant factual and procedural history of this case is as follows. On

November 14, 2022, Westbrook pleaded nolo contendere to criminal use of a

communication facility arising from an incident during which she and an

accomplice robbed a man at gunpoint when the man arrived at a previously

agreed-upon location to exchange money for sex with Westbrook. See N.T., ____________________________________________

1 See 18 Pa.C.S.A. §§ 903(a), 7512(a). J-S15038-23

11/14/22, at 5. In exchange for Westbrook’s guilty plea, the Commonwealth

agreed to nolle pros the remaining charges, including, inter alia, robbery,2 and

the trial court sentenced Westbrook to, among other things, one-year-less-

one-day to two-years-less-one-day of imprisonment, with five years of

consecutive probation, a $100 fine, $120 in restitution to the victim, and court

costs. See id. at 2, 15-16. The trial court made Westbrook eligible for work

release. See id. at 15.

Westbrook filed a post-sentence motion to withdraw her guilty plea on

November 28, 2022.3 The trial court denied the motion. See Order,

12/13/22. Westbrook failed to report to the Lancaster County Prison on

December 14, 2022 to begin her sentence, as ordered by the trial court. See

N.T., 11/14/22, at 15-16 (trial court permitting Westbrook to delay for thirty

days reporting to the prison for her sentence). The trial court issued a bench

warrant for Westbrook’s arrest on December 21, 2022. See Order, 12/21/22.

In the interim, Westbrook, via counsel, timely filed an appeal from her

judgment of sentence. See Notice of Appeal, 12/14/22. Westbrook’s counsel ____________________________________________

2 See 18 Pa.C.S.A. 3701(a)(1)(ii).

3 Pa.R.Crim.P. 720(A)(1) requires post-sentence motions to be filed within ten

days following the imposition of sentence. Because the trial court sentenced Westbrook on November 14, 2022, the ten-day deadline fell on November 24, 2022. However, November 24, 2022 was Thanksgiving. We note the county courthouse was closed on Thursday and Friday, November 24 and 25, 2022. See https://www.court.co.lancaster.pa.us/DocumentCenter/View/1195/2022- Court-Calendar. Accordingly, the next business day was November 28, 2022. Westbrook’s post-sentence motion was thus timely filed. See 1 Pa.C.S.A. § 1908 (excluding holidays and weekends from time computations).

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indicated his intention to file a motion to withdraw on appeal pursuant to

Pa.R.A.P. 1925(c)(4), and the trial court issued an opinion pursuant to

Pa.R.A.P. 1925(a).

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. See Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super.

2010). Pursuant to Anders, when counsel believes an appeal is frivolous and

wishes to withdraw from representation, he or she must do the following:

(1) petition the court for leave to withdraw stating that after making a conscientious examination of the record, counsel has determined the appeal would be frivolous; (2) file a brief referring to any issues that might arguably support the appeal, but which does not resemble a no-merit letter; and (3) furnish a copy of the brief to the defendant and advise him of his right to retain new counsel, proceed pro se, or raise any additional points he deems worthy of this Court’s attention.

Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006)

(internal citation omitted). In Santiago, our Supreme Court addressed the

second requirement of Anders, i.e., the contents of an Anders brief, and

required that the brief:

(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,

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controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.

Santiago, 978 A.2d at 361. “Once counsel has satisfied the [Anders]

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.” Edwards, 906 A.2d at 1228 (internal

citation omitted).

Here, Counsel avers in his petition to withdraw that he has reviewed

the record and determined that no non-frivolous issues exist. See Petition to

Withdraw, 3/2/23, unnumbered at *1. Counsel has further averred that he

mailed Westbrook a copy of his petition to withdraw along with his Anders

brief; he has advised her of her right to proceed, with private counsel or pro

se, and to present to this Court any other information or documentation

relevant to her appeal. See id. at Ex. A. Counsel’s brief includes a summary

of the factual and procedural history of the case, identifies the issue that could

arguably support Westbrook’s appeal, and explains his reasons for concluding

the appeal is frivolous, with analysis of the pertinent facts and applicable law.

See Anders Brief at 8-9. As Counsel is in technical compliance with Anders

and Santiago, we proceed to conduct an independent review to determine

whether this appeal is wholly frivolous.

Counsel identifies the following issue for our review: Whether the trial

court abused its discretion in denying Westbrook’s post-sentence motion to

withdraw her guilty plea? See Anders Brief at 8.

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Our standard of review is as follows:

It is well-settled that the decision whether to permit a defendant to withdraw a guilty plea is within the sound discretion of the trial court.

The term discretion imports the exercise of judgment, wisdom and skill so as to reach a dispassionate conclusion, and discretionary power can only exist within the framework of the law, and is not exercised for the purpose of giving effect to the will of the judges. Discretion must be exercised on the foundation of reason, as opposed to prejudice, personal motivations, caprice or arbitrary action. Discretion is abused when the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will.

Commonwealth v. Kehr, 180 A.3d 754, 757 (Pa. Super. 2018) (internal

citations and quotations omitted; formatting altered).

Initially, we note that a plea of nolo contendere is treated the same as

a guilty plea. See Commonwealth v. Jabbie, 2000 A.3d 500, 505 (Pa.

Super. 2018). Generally, “upon 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 what has been termed the legality of the sentence

imposed.” Id. (internal citations, quotations, and brackets omitted).

We have previously summarized the law governing post-sentence

motions to withdraw guilty pleas:

Post-sentence motions for withdrawal are subject to higher scrutiny since courts strive to discourage entry of guilty pleas as sentence-testing devices. A defendant must demonstrate that manifest injustice would result if the court were to deny his post- sentence motion to withdraw a guilty plea. Manifest injustice may be established if the plea was not tendered knowingly,

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intelligently, and voluntarily. In determining whether a plea is valid, the court must examine the totality of circumstances surrounding the plea. A deficient plea does not per se establish prejudice on the order of manifest injustice.

Kehr, 180 A.3d at 756–57 (internal citation and brackets omitted). The law

presumes a defendant who entered a guilty plea was aware of what she was

doing, and the defendant bears the burden of proving otherwise. See Jabbie,

200 A.3d at 505 (internal citation omitted). Additionally, a defendant is

bound by the statements which [s]he makes during [her] plea colloquy. Therefore, a defendant may not assert grounds for withdrawing the plea that contradict statements made when [s]he pled guilty, and [s]he may not recant the representations [s]he made in court when [s]he entered [her] guilty plea. Moreover, the law does not require that a defendant be pleased with the outcome of [her] decision to plead guilty. The law requires only that a defendant’s decision to plead guilty be made knowingly, voluntarily, and intelligently.

Id. at 506 (internal citations and quotations omitted). The comment to

Pennsylvania Rule of Criminal Procedure 590 provides the topics that should

be covered during a guilty plea colloquy:

(1) Does the defendant understand the nature of the charges to which he or she is pleading guilty or nolo contendere?

(2) Is there a factual basis for the plea?

(3) Does the defendant understand that he or she has the right to trial by jury?

(4) Does the defendant understand that he or she is presumed innocent until found guilty?

(5) Is the defendant aware of the permissible range of sentences and/or fines for the offenses charged?

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(6) Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement?

(7) Does the defendant understand that the Commonwealth has a right to have a jury decide the degree of guilt if the defendant pleads guilty to murder generally?

Pa.R.Crim.P. 590, cmt. Accord Jabbie, 200 A.3d at 506 (discussing and

applying Pa.R.Crim.P. 590, cmt.).

Following our review, we conclude the trial court did not abuse its

discretion in determining there would be no manifest injustice in denying

Westbrook’s post-sentence motion. The record reveals that Westbrook was

informed of and understood the nature of the charges. See N.T., 11/14/22,

at 4. Westbrook agreed to the factual basis. See id. at 6. The trial court

informed her of her right to trial by jury and also that she was presumed

innocent until proven guilty. See id. at 3. The trial court informed Westbrook

of the maximum applicable sentence as well as the applicable guidelines. See

id. at 4. The trial court further made Westbrook aware that the court would

be bound by the terms if it accepted the agreement. See id. at 10. The trial

court also found that Westbrook was “certainly intelligent enough to

understand” the nature of the proceedings, and concluded that Westbrook was

entering her plea knowingly, intelligently, and voluntarily. See id. at 13-15.

Lastly, Westbrook reviewed with her attorney, and then signed, an extensive

written colloquy. See id. at 5; see also Colloquy, 11/14/22; Trial Court

Opinion, 1/27/23, at 7-9 (trial court analyzing Westbrook’s issue and

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concluding it is meritless); Kehr, 180 A.3d at 756–57 (requiring a showing of

manifest injustice on the part of an appellant seeking to withdraw her guilty

plea). Westbrook thus cannot establish the trial court abused its discretion in

denying her post-sentence motion to withdraw her guilty plea. Therefore, we

conclude the sole issue identified in this appeal is frivolous, and our

independent review of the record reveals no additional issues of arguable

merit in this appeal. Accordingly, we grant Counsel’s petition to withdraw and

affirm the judgment of sentence.

Petition to withdraw granted. Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/7/2023

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