NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P

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1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA, Appellee v. TIMOTHY SHARP, Appellant IN THE SUPERIOR COURT OF PENNSYLVANIA No. 139 WDA 2012 Appeal from the Judgment of Sentence Entered November 1, 2011, In the Court of Common Pleas of Allegheny County, Criminal Division, at Nos. CP-02-CR ; CP-02-CR BEFORE SHOGAN, LAZARUS and PLATT*, JJ. MEMORANDUM BY SHOGAN, J. FILED MAY 31, 2013 Appellant, Timothy Sharp, appeals from the judgment of sentence entered following his convictions of two counts of simple assault, and one count each of harassment and defiant trespass. Counsel has filed a petition to withdraw and brief pursuant to Anders v. California, 386 U.S. 738 (1967), Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we grant counsel s petition to withdraw and affirm Appellant s judgment of sentence. The trial court summarized the factual history of this matter as follows *Retired Senior Judge assigned to the Superior Court.

2 Facts On November 1, 2011, Appellant pled nolo contend[e]re to the two criminal informations and the prosecutor summarized the evidence as follows ATTORNEY SULLIVAN Case 7536, the Commonwealth would have called Linda Spagnoli, S-P-A-G-N-O-L-I. Ms. Spagnoli is the intimate partner of Mr. Sharp. On June 8, 2011, Mr. Sharp and Ms. Spagnoli were at their residence in Leetsdale. An argument turned violent when Mr. Sharp grabbed Ms. Spagnoli by the shoulders and arms, threw her around, shook her, pinned her against the wall and different areas of the residence, struck her, and spat in her face. Mr. Sharp was arrested for that case. He subsequently was released from jail. And then at , in that case the Commonwealth would have called Bill Grago, G-R-A-G-O, and Cody Swedron, S-W-E-D-R- O-N. Their testimony would establish on or about June 28, 2011, they arrived at their home, which is next door to the residence where Ms. Spagnoli and Mr. Sharp were living together on Beaver Street in Leetsdale. They saw Mr. Sharp at the Spagnoli/Sharp re[s]idence, but Mr. Sharp by virtue of the no-contact order on the bond for the previous assault with Ms. Spagnoli was not allowed to be at that residence. Mr. Grago and Mr. Swedron were aware of that and confronted Mr. Sharp about that. Mr. Sharp disputed that status. The argument turned physical when Mr. Sharp [p]icked up a chair that was on the porch and swung it at Mr. Grago, missing him. He then began assaulting Mr. Swedron, hitting him in the body, [knocking] him into a parked vehicle. Then Mr. Sharp continued to fight [with] Mr. Swedron and had him pinned to the ground, punching him about the head and body. When Mr. Swedron fell to the ground, he actually hit -2-

3 the back of his head on the ground as well, and Mr. Sharp continued punching him after that. I believe that covers the elements of all those crimes, Your Honor. (P.T. 5-7) 7. 7 The letters P.T. followed by numerals refer to pages of the Plea/Sentencing Transcript dated November 1, Trial Court Opinion, 7/16/12, at 4-5 (footnote in original). Appellant was charged by criminal information at with one count each of simple assault, recklessly endangering another person ( REAP ), and harassment. In addition, Appellant was charged by criminal information at with one count each of simple assault, harassment, and defiant trespass. On November 1, 2011, Appellant entered into a negotiated plea agreement at criminal information , in which he pled nolo contendere to the simple assault charge. In exchange for the plea, the Commonwealth withdrew the charges of REAP and harassment at criminal information In addition, at criminal information , Appellant entered a general plea of nolo contendere to all three counts. Also on November 1, 2011, the trial court sentenced Appellant on the conviction of simple assault at to a term of incarceration of 133 days to twenty-three months. The trial court sentenced Appellant to a concurrent term of probation of two years for the conviction of simple assault at -3-

4 The trial court sentenced Appellant to a term of no further penalty for the convictions of harassment and defiant trespass at On November 9, 2011, Appellant filed post-sentencing motions which the trial court denied on December 28, 2011, without holding an evidentiary hearing. This timely appeal followed. At the outset, we note that [w]hen 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. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc) (citation omitted). Furthermore, there are clear mandates that counsel seeking to withdraw pursuant to Anders, McClendon, and Santiago must follow. In order for counsel to withdraw from an appeal pursuant to Anders certain requirements must be met (1) counsel must 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) counsel must 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) counsel must furnish a copy of the brief to defendant and advise him of his right to retain new counsel, proceed pro se or raise any additional points that he deems worthy of the court s attention. Commonwealth v. Millisock, 873 A.2d 748, 751 (Pa. Super. 2005). -4-

5 In Santiago, the Supreme Court set forth specific requirements for the brief accompanying counsel s petition to withdraw [I]n the Anders brief that accompanies court-appointed Counsel s petition to withdraw, counsel 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. In the case before us, Appellant s counsel has complied with the requirements of Santiago, and our review of counsel s petition to withdraw, supporting documentation, and Anders brief reveals that counsel has satisfied all of the foregoing requirements. Counsel has furnished a copy of the brief to Appellant, advised him of his right to retain new counsel, proceed pro se, or raise any additional points that he deems worthy of this Court s attention, and has attached a copy of the letter sent to Appellant as required under Millisock. Counsel also avers that the appeal is wholly frivolous. Motion to Withdraw at 10. Once counsel has met her obligations, it then becomes the responsibility of the reviewing court to make a full examination of the proceedings and make an independent judgment to decide whether the -5-

6 appeal is in fact wholly frivolous. Santiago, 978 A.2d at 355 n.5. Thus, we will now examine the issues set forth by counsel in the Anders brief. In the Anders brief, counsel raises the following issues for our review 1. Whether Appellant s plea of nolo contend[e]re was unlawfully induced due to trial counsel s ineffectiveness in advising Appellant? 2. Whether trial counsel was ineffective for failing to adequately advise Appellant regarding the plea offer, in violation of Article I, Section 9 of the Pennsylvania Constitution, and the Sixth and Fourteenth Amendments to the United States Constitution? 3. Whether the trial court erred in dismissing Appellant s Post Sentence Motion without a hearing? Anders Brief at 5. In his first two issues, Appellant raises claims challenging the effective assistance of trial counsel. However, we observe that in Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), the Pennsylvania Supreme Court stated that as a general rule, a petitioner should wait to raise claims of ineffective assistance of trial counsel until collateral review. Id. at 738. Underlying this rule is the Supreme Court s observation that time is necessary for a petitioner to discover and fully develop claims related to trial counsel ineffectiveness. Id. at Thus, the record may not be sufficiently developed on direct appeal to permit adequate review of ineffectiveness claims[.] Id. at 737. Because appellate courts do not normally consider issues that were not raised and developed in the court below, the Grant -6-

7 court reasoned that [d]eferring review of trial counsel ineffectiveness claims until the collateral review stage of the proceedings offers a petitioner the best avenue to effect his Sixth Amendment right to counsel. Id. at 738. In Grant, however, our Supreme Court acknowledged that under limited circumstances, the Court could create exceptions and review certain claims of ineffectiveness on direct appeal. Grant, 813 A.2d at 738 n.14. In Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003), the Pennsylvania Supreme Court made an exception to the rule it announced in Grant. [C]laims of ineffectiveness may be heard on direct appeal, where the claims were raised before the trial court, and a record was developed. Commonwealth v. Daniels, 999 A.2d 590, 595 (Pa. Super. 2010) (citing Bomar, 826 A.2d at 845). Subsequently, in Commonwealth v. Barnett, 25 A.3d 371 (Pa. Super. 2011) (en banc), this Court explained how our Supreme Court had further limited this exception. Specifically, we stated the following Based on the opinion of a majority of participating justices in [Commonwealth v. ]Wright[, 961 A.2d 119 (Pa. 2008)] and [Commonwealth v. ]Liston[, 977 A.2d 1089 (Pa. 2009)], this Court cannot engage in review of ineffective assistance of counsel claims on direct appeal absent an express, knowing and voluntary waiver of PCRA review. Liston, 977 A.2d at 1096 (Castille, C.J., concurring). With the proviso that a defendant may waive further PCRA review in the trial court, absent further instruction from our Supreme Court, this Court, pursuant to Wright and Liston, will no longer consider ineffective assistance of counsel claims on direct appeal. Barnett, 25 A.3d at 377 (footnote omitted). -7-

8 Our review of the record reflects that, although Appellant raised his ineffectiveness claims in a post-sentence motion, Appellant has not made any such waiver as required by Barnett. Accordingly, we may not address the issues of trial counsel ineffectiveness on direct appeal. Hence, we dismiss Appellant s claims of ineffective assistance of counsel without prejudice to Appellant s right to raise them on collateral review pursuant to the Post Conviction Relief Act ( PCRA ), 42 Pa.C.S.A See Commonwealth v. Quel, 27 A.3d 1033, 1037 (Pa. Super. 2011) (explaining that when an appellant does not knowingly and voluntarily waive PCRA review of an ineffective assistance claim, under Barnett, dismissal of the ineffective assistance claim without prejudice is the appropriate remedy). See also Commonwealth v. Funk, 29 A.3d 28, (Pa. Super. 2011) (applying Barnett to preclude review of ineffective assistance of counsel claims on direct appeal where the appellant did not expressly waive his right to PCRA review of his ineffectiveness issues, despite fact that the appellant raised those claims in a post-sentence motion, a hearing was held, and the motion was denied by operation of law). In the final claim raised in the Anders brief, Appellant asserts that the trial court erred in dismissing his post-sentence motions without holding an evidentiary hearing. Specifically, Appellant asserts the following The only issue Appellant raised in his Post Sentence Motion was that he wished to withdraw his nolo contendre plea. Appellant -8-

9 averred that his trial counsel was ineffective in advising him of the plea, and therefore, he did not knowingly, intelligently, and voluntarily enter his plea. Anders Brief at 12 (verbatim). Instantly, because Appellant did not waive his collateral review rights, Appellant s ineffectiveness claims are not cognizable in either the postsentence or direct appeal context. Barnett. Thus, Appellant s claim that the trial court erred in refusing to hold a post-sentence hearing regarding the ineffective assistance of counsel fails. To the extent Appellant argues that the trial court should have held an evidentiary hearing on his post-sentence motion with regard to the voluntariness of his plea, we adopt the following discussion of the trial court as our own Appellant s final claim is that the Trial Court erred in dismissing Appellant s Post-Sentence Motions without a hearing. This claim is without merit. The applicable law regarding Post-Sentencing Motions under Pa.R.Cr.P. 720(B)(2)(b) provides, Hearing; Argument. The judge shall also determine whether a hearing or argument on the motion is required, and if so, shall schedule a date or dates certain for both. Under this rule, the Trial Court has the discretion to schedule a hearing. The purpose of a hearing would be to adduce additional evidence regarding alleged errors that would assist in the review of the claims. No such evidence could be adduced here and thus, a hearing was not warranted on these claims. In his Post-Sentencing Motion, Appellant claims that his plea should be withdrawn because, On the day of the plea, the Defendant was confused about his options and his right to proceed to trial. Thus, Appellant contends that his plea was not -9-

10 knowing, intelligent and voluntary. Here, Appellant (1) filled out a ten (10) page written nolo contendre [sic] Explanation of Defendant s Rights Form answering 68 questions regarding his trial options; (2) initialed each page of the plea form; (3) indicated in the oral colloquy by the Trial Court that he read and understood each question (P.T. 4); (4) indicated that he answered each question honestly (P.T. 4); (5) indicated that he had enough time to speak to his attorney about the crimes and his right to go to trial on the charges (P.T. 4); and (6) indicated that he chose to plead no contest because he did not dispute the evidence that the Commonwealth had available to prosecute him. (P.T. 7). The standard for withdrawal of a guilty plea after imposition of sentence is much higher than prior to sentencing requiring a showing of prejudice on the order of manifest injustice before withdrawal is properly justified. Commonwealth v. Carpenter, 725 A.2d 154, 164 (Pa. 1999). A plea rises to the level of manifest injustice when it was entered into involuntarily, unknowingly, or unintelligently. Commonwealth v. Stork, 737 A.2d 789, 790 (Pa.Super. 1999). A showing of manifest injustice following the imposition of sentence is required as to discourage the entrance of a plea as a sentence testing device. Commonwealth v. Muntz, 630 A.2d 51, 53 (Pa.Super. 1993), citing Commonwealth v. Starr, 301 A.2d 592, 594 (1973). Here, the record belies Appellant s assertions that he did not make a knowing, intelligent and voluntary plea. See Commonwealth v. Muhammad, 792 A.2d 378, (Pa.Super. 2002)(oral colloquy in addition to written colloquy established that defendant understood his right to trial and that he made a knowing, intelligent and voluntary plea). Appellant s claim is without merit. Trial Court Opinion, 7/16/12, at 6-8. In summary, it is our determination that Appellant s counsel has complied with the requirements of Anders and that an appeal in this case would be wholly frivolous. Furthermore, we have conducted our own, -10-

11 independent review of the record. We do not discern any non-frivolous issues that Appellant could have raised. In light of the foregoing, we grant counsel s petition to withdraw and affirm the judgment of sentence. Petition to withdraw granted. Claims of ineffective assistance of counsel dismissed without prejudice to Appellant s right to raise them on collateral review. Judgment of sentence affirmed. Jurisdiction relinquished. Judgment Entered. Deputy Prothonotary Date May 31,