Commonwealth v. Nicholson

270 A.3d 1166 (Table)

COMMONWEALTH of Pennsylvania

v.Michael Scott NICHOLSON, Jr., Appellant

No. 458 MDA 2021

Superior Court of Pennsylvania.

Filed December 29, 2021

MEMORANDUM BY PELLEGRINI, J.:

Michael Scott Nicholson, Jr. (Nicholson) appeals from the June 19, 2020 judgment of sentence imposed by the Court of Common Pleas of York County (trial court) following his guilty plea to one count of possession with intent to deliver fentanyl (PWID).¹ Nicholson's counsel has filed a brief pursuant to Anders v. California , 386 U.S. 738 (1967), and Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009), and a petition for leave to withdraw as counsel. We grant the petition to withdraw and affirm.

We glean the following facts from the certified record. On March 11, 2019, Nicholson was charged with PWID heroin following a buy-bust operation and search of his home. After receiving the lab report on the narcotics identifying the substance as fentanyl, the Commonwealth amended the information on January 22, 2020, to charge Nicholson with PWID fentanyl. "44.88 g" is handwritten on the criminal information next to the sole count of PWID but the record does not reflect who made this notation. That same day, Nicholson entered an open plea of guilty. He submitted a written guilty plea colloquy affirming that he understood the nature of the charge and the possible penalty, that he was not under the influence or otherwise unable to understand the proceedings, that he understood his trial and appellate rights, and that he was entering his plea of his own free will.

At the plea hearing, the Commonwealth stated that law enforcement had recovered three baggies from Nicholson containing 19.88 grams, 44.88 grams and 12.41 grams of fentanyl, respectively. The plea was with respect to the 44.88 gram bag. Trial counsel agreed that it was an open plea and erroneously stated that the sentencing guidelines were 96 to 115 months' incarceration in the standard range. In actuality, the standard range of the sentencing guidelines for possessing between 10 and 50 grams of fentanyl was a minimum of 72 to 90 months of incarceration.

The trial court then explained Nicholson's trial rights to him and asked whether he understood the written colloquy that he had filled out. Nicholson responded that he did. The trial court stated that the factual allegation was that Nicholson had possessed 44.88 grams of fentanyl with intent to deliver and asked Nicholson to explain why he was guilty of the offense. Nicholson said that he did possess the substance and that, at the time, he thought it was heroin. He said he had been temporarily laid off from his job so he had begun selling narcotics. He stated that he wanted to accept responsibility for his actions and that no one had pressured him to enter his plea. The trial court accepted the plea.

On February 26, 2020, Nicholson appeared for sentencing. At that time, the Commonwealth stated that the amount of fentanyl in the amended criminal information was incorrect and that the presentence investigation (PSI) reflected the correct amount of 77.17 grams of fentanyl. Based on the increased amount of fentanyl, the Offense Gravity Score (OGS) for the offense was 13, and the standard range of the sentencing guidelines was a minimum of 96 to 114 months, with an aggravated range of 126 months of incarceration. The Commonwealth said it believed Nicholson wanted to withdraw his plea and that it opposed that motion because it had been prepared to proceed to a jury trial when he pled guilty. It argued that Nicholson should not be permitted to withdraw his plea if he was simply unhappy with the potential sentence.

Trial counsel confirmed that Nicholson wished to withdraw his plea but said, "I don't think it has anything to do with the sentence. He knew the day he pled, I told him then he was looking at a ton of time, whether it's heroin or whether it was going to be amended to fentanyl." Notes of Testimony, 2/26/20, at 3. Nicholson then spoke on his own behalf and stated that he wanted to withdraw his guilty plea so that he could file a motion to suppress based on the confidential informant (CI) involved with the buy-bust operation. The trial court responded that the deadline for filing a suppression motion had passed and any potential grounds had been waived. Nicholson then asserted that he "would like to take it to trial," and "would like to have the chance to let it be heard. Let everything be seen, brought out, and—I mean, we just recently received the lab results today."² Id. at 4. He also stated that he had not yet completed his drug and alcohol evaluation for the PSI.

The trial court denied the motion to withdraw the plea and sentencing was continued for Nicholson to complete a drug and alcohol evaluation. On June 19, 2020, the trial court sentenced Nicholson in the standard range of the sentencing guidelines to 114 to 228 months of incarceration.³ Nicholson did not file a post-sentence motion or notice of appeal. Following a timely petition pursuant to the Post-Conviction Relief Act (PCRA),⁴ the trial court reinstated his direct appeal rights nunc pro tunc. Nicholson timely appealed and he and the trial court have complied with Pa. R.A.P. 1925.

"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." Commonwealth v. Martuscelli , 54 A.3d 940, 947 (Pa. Super. 2013). Procedurally, counsel must: (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. See Commonwealth v. Cartrette , 83 A.3d 1030, 1032 (Pa. Super. 2013).

Counsel has complied with these procedural mandates. The application avers that counsel reviewed the entire record and concluded that the instant appeal is wholly frivolous. He attached a copy of the letter he sent to Nicholson with a copy of the Anders brief and petition to withdraw as counsel. See Commonwealth v. Woods , 939 A.2d 896, 900 (Pa. Super. 2007) (noting that counsel must attach to their withdrawal petition a copy of the letter sent to the client). The letter informed him that he has the right to hire private counsel or file a pro se brief. On October 15, 2021, this Court received Nicholson's pro se response to the brief filed by counsel which raises additional claims for relief.

We now examine the substantive elements of the Anders brief. The brief accompanying the petition 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. See Santiago, supra , at 361. Counsel's Anders brief summarizes the factual and procedural history, identifies six potential issues, and outlines the legal and factual analysis that led counsel to conclude that any appeal would be frivolous. Because counsel has complied with the procedural and substantive requirements of Anders , we now "make a full examination of the proceedings and make an independent judgment to decide whether the appeal is in fact wholly frivolous." Santiago, supra , at 355 n.5.

The first four issues raised in the Anders brief relate to the terms of Nicholson's guilty plea and whether the trial court abused its discretion in denying his motion to withdraw the plea.⁵ Counsel identifies three potential errors related to the amendment of the amount of fentanyl charged for the count of PWID: whether Nicholson should have been permitted to withdraw his plea after the Commonwealth amended the amount of fentanyl from 44.88 grams to 77.17 grams; whether he was denied the benefit of his plea bargain when the Commonwealth amended the weight of the fentanyl upwards after he entered the plea; and whether the plea became unknowing and involuntary when the weight of the fentanyl was altered.

We agree with counsel that these issues are waived. Nicholson did not object to the increase when the Commonwealth placed it on the record at the hearing on February 26, 2020, or contend that it deprived him of the benefit of his open plea. When he orally moved to withdraw his plea, trial counsel specifically stated, "I don't think it has anything to do with the sentence. He knew the day he pled, I told him then he was looking at a ton of time, whether it's heroin or whether it was going to be amended to fentanyl." Notes of Testimony, 2/26/20, at 3. When asked why he wanted to withdraw the plea, Nicholson said only that he wished to file a suppression motion and that he wanted all the evidence to be brought out at trial. It is well-settled that any issue not raised in the trial court is waived for the purposes of appeal. Pa. R.A.P. 302(a). Accordingly, these issues are wholly frivolous.⁶

Next, counsel addresses whether the trial court abused its discretion in denying Nicholson's presentence motion to withdraw his guilty plea, finding no fair and just reason existed to grant the motion. Nicholson did not preserve this argument in his concise statement pursuant to Pa. R.A.P. 1925(b), which only raised issues related to the amendment of the weight of fentanyl following his guilty plea. Accordingly, it is waived. See Commonwealth v. Wanner , 158 A.3d 714, 717 (Pa. Super. 2017) ; Pa. R.A.P. 1925(b)(4)(vii). However, we have previously held that "when direct appeal counsel has filed an Anders brief and is requesting permission to withdraw from representation, this Court may overlook certain procedural deficiencies in appellate court filings to ensure that Anders counsel has not overlooked...