Commonwealth v. Murray

270 A.3d 1170 (Table)

COMMONWEALTH of Pennsylvania

v.Levaughn MURRAY, Appellant

No. 800 EDA 2021

Superior Court of Pennsylvania.

Filed December 30, 2021

MEMORANDUM BY LAZARUS, J.:

Levaughn Murray appeals from the judgment of sentence, entered in the Court of Common Pleas of Philadelphia County, following his guilty plea to two counts of robbery¹ and one count of possession of firearm prohibited.² Additionally, Murray's counsel, James Lloyd, Esquire, has filed an application to withdraw as counsel and an accompanying Anders³ brief. Upon review, we grant Attorney Lloyd's application to withdraw and affirm Murray's judgment of sentence.

On May 4, 2019, at approximately 12:00 p.m., Chris Vega and Aidaliz Del Valle exited a check cashing business as Murray approached them brandishing a firearm. Murray claimed that Vega owed him money and demanded that Vega and Del Valle give him their money. The victims gave Murray $380.00 and $496.00, respectively.

On June 14, 2019, Murray was charged, inter alia , with the above-mentioned offenses. On March 3, 2021, Murray entered into a negotiated guilty plea in which he agreed to plead guilty to two counts of robbery and one count of possession of firearm prohibited, and to receive an aggregate sentence of 4½ to 10 years in prison. In exchange, the Commonwealth agreed to withdraw the remaining charges. On the same day, the trial court sentenced Murray, in accordance with the negotiated plea agreement.

On March 10, 2021, Murray filed a motion to withdraw his guilty plea, claiming that he was innocent and that it would be manifest injustice to prevent him from cross-examining the witnesses at a trial. On March 24, 2021, the trial court conducted a hearing, after which it denied Murray's motion.

Murray filed a timely notice of appeal. The trial court ordered a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). However, on June 11, 2021, counsel filed his intention to file an Anders brief in lieu of a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. See Pa.R.A.P. 1925(c)(4). Counsel subsequently filed, with this Court, an application to withdraw as counsel, and a brief pursuant to Anders . Murray filed a pro se application for relief, in which he requested leave to file a pro se response to counsel's Anders brief. This Court granted Murray's application for relief, and he has filed a pro se response to counsel's Anders brief.

When counsel files an Anders brief, and the appellant files a pro se or counseled response, this Court will first determine whether counsel has complied with the dictates of Anders and Santiago . See Commonwealth v. Bennett , 124 A.3d 327, 333 (Pa. Super. 2015) (outlining proper procedure where counsel files Anders brief and appellant files pro se response). If counsel has complied with the dictates of Anders and Santiago , we will address the issues raised in the Anders brief and conduct our independent examination of the record as to those issues. See id. Finally, if we determine those issues to be without merit, we next examine the appellant's pro se allegations. See id. In doing so, "[this] Court is limited to examining only those issues raised and developed in the brief[; w]e do not act as, and are forbidden from acting as, appellant's counsel."Id.

Pursuant to Anders , when counsel believes that an appeal is frivolous and wishes to withdraw from representation, counsel must:

(1) petition the court for leave to withdraw stating that after making a conscientious examination of the record and interviewing the defendant, counsel has determined the appeal would be frivolous, (2) file a brief referring to any issues in the record of arguable merit, and (3) furnish a copy of the brief to defendant and advise him of his right to retain new counsel or to raise any additional points that he deems worthy of the court's attention. The determination of whether the appeal is frivolous remains with the court.

Commonwealth v. Burwell , 42 A.3d 1077, 1083 (Pa. Super. 2012) (citation omitted).

Additionally, the Pennsylvania Supreme Court has explained 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.

Santiago , 978 A.2d at 361.

After determining that counsel has satisfied the technical requirements of Anders and Santiago , this Court must then "conduct a simple review of the record to ascertain if there appears on its face to be arguably meritorious issues that counsel, intentionally or not, missed or misstated." Commonwealth v. Dempster , 187 A.3d 266, 272 (Pa. Super. 2018) (en banc).

Instantly, our review of counsel's Anders brief and application to withdraw reveals that Attorney Lloyd has substantially complied with each of the technical requirements of Anders /Santiago . See Commonwealth v. Wrecks , 934 A.2d 1287, 1290 (Pa. Super. 2007) (stating counsel must substantially comply with requirements of Anders ). Attorney Lloyd indicates that he has made a conscientious examination of the record and determined that an appeal would be frivolous. The record further reflects that counsel has furnished a copy of the Anders brief to Murray, advised Murray of his right to retain new counsel or proceed pro se , or raise any additional points that he deems worthy of this Court's attention. Additionally, counsel's Anders brief substantially complies with the requirements of Santiago . As Attorney Lloyd has complied with all of the requirements for withdrawing from representation, we will examine the record and make an independent determination of whether Murray's appeal is, in fact, wholly frivolous.

In the Anders brief, Attorney Lloyd presents the following issues on Murray's behalf for our review:

[1.] Did the [trial] court err when it denied [Murray]’s timely post-sentence motion to withdraw his guilty plea?

[2.] Is the guilty plea in this matter valid where: (1) [Murray] was taking prescription medication at the time the plea was entered; (2) [Murray] did not know he was pleading guilty to two counts of robbery, because only one complainant testified at the preliminary hearing; (3) [Murray] maintains that "I'm innocent and not guilty of robbery[;]" and (4) the minimum sentence imposed for the crime of [ ] robbery was 4½ years of incarceration?

Anders Brief, at 4.

In his first claim, Murray asserts that he has an absolute "right to reconsider and withdraw his guilty plea within ten days of entering the plea."Id. at 17. Murray contends that the trial court, therefore, erred in denying his motion to withdraw his guilty plea.

The decision of whether to permit a defendant to withdraw a guilty plea is within the sound discretion of the trial court. Commonwealth v. Unangst , 71 A.3d 1017, 1019 (Pa. Super. 2013) (citations and quotations omitted); see also Commonwealth v. Broaden , 980 A.2d 124, 128 (Pa. Super. 2009) (appellate courts review trial court's order denying motion to withdraw guilty plea for abuse of discretion).

It is well settled that there is no absolute right to withdraw a guilty plea. Commonwealth v. Forbes , 299 A.2d 268, 271 (Pa. 1973). When a defendant seeks to withdraw a guilty plea after sentencing, he "must demonstrate prejudice on the order of manifest injustice." Commonwealth v. Yeomans , 24 A.3d 1044, 1046 (Pa. Super. 2011) ; see also Commonwealth v. Hart , 174 A.3d 660, 664 (Pa. Super. 2017) ("post-sentence motions for withdrawal are subject to higher scrutiny since the courts strive to discourage the entry of guilty pleas as sentence-testing devices[ ]") (citations and quotation marks omitted).

To ensure that a plea is voluntary, knowing, and intelligent,

Rule 590 of the Pennsylvania Rules of Criminal Procedure requires that a trial court conduct a separate inquiry of the defendant before accepting a guilty plea. ... As the Comment to Rule 590 provides[,] at a minimum, the trial court should ask questions to elicit the following information:

(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 a right to a 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 sentencing 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?

Hart , 174 A.3d at 667-68 (citations omitted). "Inquiry into the above six areas is mandatory." Commonwealth v. Ingold , 823 A.2d 917, 921 (Pa. Super. 2003). "The purpose of [ Rule 590 ] is to ensure that the defendant fully understands the nature of the crimes to which he or she is pleading guilty and the rights that are being waived by the plea." Commonwealth v. Carter , 656 A.2d 463, 465 (Pa. 1995).

In determining whether a plea is valid, the court must examine the totality of the circumstances surrounding the plea. Commonwealth v. Kpou , 153 A.3d 1020, 1023 (Pa. Super. 2016). "A guilty plea will not be deemed invalid if the circumstances surrounding the entry of the plea disclose that the defendant had a full understanding of the nature and consequences of his plea[,] and that he knowingly and voluntarily decided to enter the plea." Commonwealth v. Fluharty , 632 A.2d 312, 315 (Pa. Super. 1993). "Pennsylvania law presumes a defendant who entered a guilty plea was aware of what he was doing, and the defendant bears the burden of proving otherwise." Id. Moreove...