Commonwealth v. Martin
| Decision Date | 13 December 2022 |
| Docket Number | 795 MDA 2021,796 MDA 2021 |
| Parties | COMMONWEALTH OF PENNSYLVANIA v. GERALD ROBERT MARTIN Appellant COMMONWEALTH OF PENNSYLVANIA v. GERALD ROBERT MARTIN Appellant |
| Court | Pennsylvania Superior Court |
Appellant Gerald Robert Martin, appeals from the judgments of sentence imposed following his entry of a nolo contendere plea to possession of a controlled substance with intent to deliver (methamphetamine, less than two and one-half grams) and a guilty plea to possession of drug paraphernalia.[1] Following prior remands to ensure that Appellant's counsel properly sought to withdraw from his representation, we are tasked with reviewing a petition to withdraw as counsel and an accompanying brief pursuant to Anders v. California, 386 U.S. 738 (1967). After protracted review, we grant the petition to withdraw as counsel and affirm the judgments of sentence.
On or about August 29, 2018, the state police arranged through a confidential informant to purchase a controlled substance from Appellant. N.T. 1/12/21, 9. The informant met with Appellant and another person named Amanda Wilcox in Athens Township in Bradford County. Id. The informant purchased less than two and one-half grams of methamphetamine from them. Id. Ms. Wilcox was the driver of a car at that location and Appellant was in the front passenger seat. Id. Appellant conducted the conversation to arrange the transaction and Ms. Wilcox was the one who completed the exchange with the informant. Id. The methamphetamine sold to the informant weighed .79 grams. Id. After the police stopped a car transporting Appellant on March 29, 2020, they found Appellant in possession of a hypodermic needle. Id. at 8.
On January 12, 2021, Appellant entered his pleas to the above-referenced charges.[2] N.T. 1/12/21, 1-10. The parties did not reach an agreement on a sentencing recommendation, but the Commonwealth agreed to nolle prosse additional charges in exchange for the entry of the pleas.[3] Id. at 1-2; N.T. 5/24/21, 8. Sentencing was deferred for the preparation of a pre-sentence investigation report. N.T. 1/12/21, 9.
On May 24, 2021, the court imposed an aggregate imprisonment term of sixteen to sixty months, including consecutive prison terms of fifteen to forty-eight months for possession of a controlled substance with intent to deliver and one to twelve months for possession of drug paraphernalia.[4] N.T. 5/24/21, 6-9; Sentencing Order, CP-08-CR-0000214-2020, 5/24/21, 1; Sentencing Order, CP-08-0000362-2020, 5/24/21, 1. Appellant did not file post-sentence motions and filed timely notices of appeals in each of the underlying cases. Notice of Appeal, CP-08-CR-0000214-2020, 6/21/21; Notice of Appeal, CP-08-CR-000362-2020, 6/21/21, 1.
Appellant's counsel filed an Anders brief for these consolidated appeals but failed to file a petition to withdraw as counsel along with a required notice letter advising Appellant of his rights under Anders and enclosing copies of the brief and the petition to withdraw as counsel. After two orders directing counsel to provide proof that Appellant was properly advised of his rights went unanswered, we remanded this case for the purposes of allowing the plea court to hold a hearing to determine whether counsel had abandoned Appellant. Commonwealth v. Martin, 2022 WL 2764211, *2 (Pa. Super., filed July 15, 2022) (unpublished memorandum). Appellant's counsel subsequently filed a petition to withdraw as counsel with this Court, and the plea court informed this Court of its findings that counsel had not abandoned his client and had filed the withdrawal motion to "cure the identified deficiencies" that were addressed in our former memorandum. Order, CP-08-CR-0000214-2020 & CP-08-CR-000362-2020, 8/8/22, ¶¶ 3-5; Application to Withdraw as Counsel, 7/29/22.
Upon further review, we remanded a second time because we noticed that the certified record did not contain a proof of service reflecting counsel's service of the Anders brief on Appellant. Commonwealth v. Martin, 2022 WL 7275655, *3 (Pa. Super., filed Oct. 13, 2022).
At our direction, Appellant's counsel cured this omission by refiling copies of the Anders brief, the petition to withdraw as counsel, and the letter advising Appellant of his rights to proceed pro se or with new retained counsel, along with a new proof of service reflecting service on Appellant. Anders Brief, 10/20/22; Petition to Withdraw as Counsel, 10/20/22; Correspondence to Appellant, 7/28/22; Proof of Service, 10/20/22. We may now proceed with substantive review.
Counsel's Anders brief identifies three issues:
Prior to addressing the issues identified in the Anders brief, we must first resolve counsel's petition to withdraw. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc). An attorney seeking to withdraw on appeal pursuant to Anders must take the following actions:
1) petition the court for leave to withdraw stating that, after making a conscientious examination of the record, counsel has determined that the appeal would be frivolous; 2) furnish a copy of the brief to the defendant; and 3) advise the defendant that he or she has the right to retain private counsel or raise additional arguments that the defendant deems worthy of the court's attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en banc) (citation omitted). Our Supreme Court has also stated that a proper 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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Counsel also must provide the appellant with a copy of the Anders brief, together with a letter that advises the appellant of his or her 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. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007) (citation omitted). "Substantial compliance with the Anders requirements is sufficient." Commonwealth v. Redmond, 273 A.3d 1247, 1252 (Pa. Super. 2022) (citation omitted).
Counsel filed an Anders brief and a petition to withdraw as counsel. The Anders brief substantially complies with the requirements set forth in Santiago, although we note that the summary of the procedural history and facts in the brief does not contain citations to the certified record and the "Order in Question" section of the brief contains nothing after a heading for that section. Anders brief, at v, 4-9. The withdrawal petition states that counsel has conducted conscientious examination of the record and determined that the appeal is without merit. Petition to Withdraw as Counsel, 10/20/22, ¶ 2. Counsel has also provided this court with his correspondence to Appellant explaining Appellant's right to retain new counsel or to proceed pro se to raise additional issues that Appellant deems worthy of this Court's attention. Therefore, counsel has substantially complied with the technical requirements for withdrawal under Anders and Santiago.[5]
By entering guilty and nolo contendere pleas without an agreement as to a sentencing recommendation, Appellant limited the cognizable issues on appeal to those involving the validity of the pleas, the lower court's jurisdiction, the discretionary aspects of the sentence, and the legality of the sentence. See Commonwealth v. Eisenberg, 98 A.3d 1268, 1275 (Pa. 2014) () (citation omitted); Commonwealth v. DiClaudio, 210 A.3d 1070, 1074 n.5 (Pa. Super. 2019) () (citation omitted). Here, Appellant's counsel addresses the voluntariness of the plea, and the discretionary aspects and legality of the sentence.[6]
As to the validity of the pleas, counsel concludes that there was no claim of arguable merit to raise because the plea court's oral plea colloquy addressed all the necessary elements for a valid plea and the court's questioning of Appellant established the voluntariness of the pleas. Anders Brief at 12-14. We agree with counsel, but additionally note that Appellant waived any hypothetical challenge to the validity of his pleas by not objecting to the pleas at the plea hearing or filing a timely motion to withdraw his pleas. See Commonwealth v. Lincoln, 72 A.3d 606, 609-10 (Pa. Super. 2013) (...
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