Com. v. Pollard

• Decision Date: 09 September 2003
• Citation: 832 A.2d 517
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. David POLLARD, Appellant.
• Court: Pennsylvania Superior Court

832 A.2d 517

COMMONWEALTH of Pennsylvania, Appellee, v. David POLLARD, Appellant.

Superior Court of Pennsylvania.

Submitted April 21, 2003.

Filed September 9, 2003.

David Pollard, appellant, pro se.

Catherine L. Marshall, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before: HUDOCK, POPOVICH and CAVANAUGH, JJ.

HUDOCK, J.

¶ 1 This is an appeal from the judgment of sentence entered after Appellant pled guilty to third-degree murder, criminal conspiracy and abuse of a corpse.¹ We affirm.

¶ 2 Appellant helped his brother to strangle and suffocate Victoria Reyes. After she died, they placed her body into a closet. The two later wrapped the victim's naked body in a blanket and deposited it behind a nearby apartment building. On March 6, 2002, Appellant pled guilty to third-degree murder, criminal conspiracy and abuse of a corpse. Appellant was sentenced to twenty to forty years of incarceration for third-degree murder with consecutive terms of imprisonment of five to fifteen years for criminal conspiracy and one to two years for abuse of a corpse. Appellant filed a motion for reconsideration of his sentence contending it was unduly harsh and exceeded the Sentencing Guidelines. The trial court denied the motion, and Appellant filed a timely pro se notice of appeal. New counsel was appointed, and the trial court ordered Appellant to submit a concise statement pursuant to Rule of Appellate Procedure 1925(b). Appellant complied. The trial court thereafter filed a full opinion addressing the circumstances of the appeal.

¶ 3 Appellate counsel filed a brief and petition seeking to withdraw his representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981). Appellant neither filed a pro se brief nor retained alternate counsel. He did, however, submit a pro se letter requesting us to consider allegations of ineffective representation by appellate counsel. Appellant presents no specific claim or averment to support his belief that sentencing irregularities occurred in his case. Nor does he present averments in support of the request to withdraw his guilty plea. Rather, he requests us to declare that present counsel is broadly ineffective for filing an Anders brief. See Letter, 2/4/03.

¶ 4 Appellant's ineffectiveness claims have been raised for the first time on appeal and were not presented to the trial court. Although they are not waived on this basis, the fact remains that no hearing has been conducted, and we have no trial court opinion addressing these issues. As such, the ineffectiveness claims are of the type our Supreme Court has indicated are best left for collateral review. Commonwealth v. Grant, 572 Pa. 48, 67-68, 813 A.2d 726, 738 (2002). We therefore decline to address Appellant's allegations of ineffectiveness without prejudice to his right to raise them in a petition filed pursuant to the Post Conviction Relief Act (PCRA).² ¶ 5 When faced with a purported Anders brief, this Court may not review the merits of the underlying issues without first passing on the request to withdraw representation. Commonwealth v. Boyd, 763 A.2d 421, 423 (Pa.Super.2000).

To be permitted to withdraw pursuant to Anders, counsel must: (1) petition the court for leave to withdraw stating that after making a conscientious examination of the record it has been determined that the appeal would be frivolous; (2) file a brief referring to anything that might arguably support the appeal, but which does not resemble a "no-merit" letter or amicus curiae brief; and (3) furnish a copy of the brief to the defendant and advise him of his right to retain new counsel or raise any additional points that he deems worthy of the court's attention.

Id. After establishing that the antecedent requirements have been met, this Court must then make an independent evaluation of the record to determine whether the appeal is, in fact, wholly frivolous. Id.

¶ 6 In his petition and brief, counsel indicated he thoroughly examined the record and determined the appeal was frivolous. Counsel also stated that he provided Appellant with a copy of the brief and that he advised Appellant of his rights in lieu of representation. Furthermore, counsel has provided this Court with a proper Anders brief discussing the substantive issues Appellant wished to have raised on his behalf. Counsel has fulfilled the technical requirements of Anders and its Pennsylvania progeny. Therefore, we shall proceed to an independent evaluation of the record to determine the accuracy of counsel's averment that this appeal is wholly frivolous. Counsel has addressed two issues in the Anders brief filed with this Court:

1. Was the guilty plea colloquy in this case knowing and voluntary?

2. Did the sentencing court abuse its discretion?

Appellant's Brief at 2.

¶ 7 Our law is clear that, to be valid, a guilty plea must be knowingly, voluntarily and intelligently entered. Commonwealth v. Shekerko, 432 Pa.Super. 610, 639 A.2d 810, 813 (1994). There is no absolute right to withdraw a guilty plea, and the decision as to whether to allow a defendant to do so is a matter within the sound discretion of the trial court. Commonwealth v. Muhammad, 794 A.2d 378, 382 (Pa.Super.2002). To withdraw a plea after sentencing, a defendant must make a showing of prejudice amounting to "manifest injustice." Id., 794 A.2d at 383. "A plea rises to the level of manifest injustice when it was entered into involuntarily, unknowingly, or unintelligently." Commonwealth v. Ingold, 823 A.2d 917, 920 (Pa.Super.2003). A defendant's disappointment in the sentence imposed does not constitute "manifest injustice." Muhammad, 794 A.2d at 383.

¶ 8 A court accepting a defendant's guilty plea is required to conduct an on-the-record inquiry during the plea colloquy. Ingold, 823 A.2d at 920. The colloquy must inquire into the following areas:

(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?

(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?

Id. at 920-21. Our law presumes that a defendant who enters a guilty plea was aware of what he was doing. Commonwealth v. Stork, 737 A.2d 789, 790 (Pa.Super.1999). He bears the burden of proving otherwise. Id.

¶ 9 The transcript of the plea colloquy in this case demonstrates that the trial court inquired at length concerning the terms of the written plea agreement between Appellant and the Commonwealth. N.T., 3/6/02, 6-10. The trial court determined there were two mutually contradictory clauses in the agreement prepared by the Office of the District Attorney. Therefore, the court required the Assistant District Attorney to strike the contradictory provisions to make the written agreement internally consistent. Id. at 10.

¶ 10 The trial court informed Appellant of the maximum possible sentences for the charges at issue and indicated there was no agreement limiting the severity of the sentence that could be imposed. Id. at 11-12. At the court's request, the prosecutor explained in detail the elements of the charges, and Appellant stated that he understood this explanation. Id. at 12-14. The trial court informed Appellant he was presumed innocent of the charges and that he had an absolute right to a trial by jury at which it would be the Commonwealth's burden to prove guilt beyond a reasonable doubt. Id. at 14-15. Appellant stated that he had reviewed the written guilty plea form before he signed it. Id. at 15. He affirmatively indicated he understood all of the rights described on the form, including his right to a jury trial, and that he knew and understood that by pleading guilty he was relinquishing all defenses he may have had—or thought he may have had—and that there would be negative consequences to pleading guilty if he were on probation or parole. Id. at 16. The trial court asked Appellant if he was satisfied with counsel's performance and received an affirmative response. Id. Finally, the trial court asked Appellant if he had any questions at all. Appellant replied, "no." Id. at 17.

¶ 11 The trial court explicitly and specifically asked Appellant whether he understood that, by pleading guilty, he was relinquishing his right to a trial and almost all of the appeal rights he otherwise would have. Id. at 17. Appellant stated that he understood. Id. Appellant also averred that nobody had promised him anything, other than the matter discussed in the colloquy, and that he was not under any type of pressure to plead guilty. Id. Appellant indicated that he was entering his plea of his own free will. Id. The Commonwealth presented a detailed description of the factual basis for the charges. Id. at 18-32. Appellant then stated that he was guilty of all three charges and signed the bills of information. Id. at 33-34. The court found that the guilty pleas were made "knowingly, intelligently and voluntarily" and accepted them. Id. at 34.

¶ 12 The longstanding rule of Pennsylvania law is that a defendant may not challenge his guilty plea by asserting that he lied while under oath, even if he avers that counsel induced the lies. Commonwealth v. Cappelli, 340 Pa.Super. 9, 489 A.2d 813, 819 (1985). A person who elects to plead guilty is bound by the statements he makes in open court while under oath and he may not later assert grounds for withdrawing the plea which contradict the statements he made at his plea colloquy. Stork, 737 A.2d at 790-91. We agree with the pronouncement of the Court of Appeals for the...