Com. v. Graham, G. (memorandum)

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J -S12026-17 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA 1 IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. GERARD P. GRAHAM Appellant No. 1561 MDA 2016 Appeal from the Judgment of Sentence August 22, 2016 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0000613-2016 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. GERARD P. GRAHAM Appellant No. 1562 MDA 2016 Appeal from the Judgment of Sentence August 22, 2016 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0003420-2016 BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J. MEMORANDUM BY OTT, J.: Gerald P. FILED APRIL 06, 2017 Graham appeals from the judgment of sentence imposed August 22, 2016, in the Berks County Court of Common Pleas. The trial court sentenced Graham to an aggregate term of two and one-half to five years' imprisonment, following his negotiated guilty plea, in two separate J -S12026-17 cases,' to charges of firearms not to be carried without a license, possession with intent to deliver ("PWID") controlled substances, and possession of controlled substances.2 Contemporaneous with this appeal, Graham's counsel seeks to withdraw from representation and has filed an Anders brief,3 which identifies two issues on appeal: Graham's guilty plea, and (2) counsel. a (1) a request to withdraw challenge to the ineffectiveness of prior For the reasons below, we affirm the judgment of sentence and grant counsel's petition to withdraw. The relevant facts underlying these appeals, as gleaned from the affidavits of probable cause, are as follows. was stopped for possession of On January 20, 2016, Graham motor vehicle violation, and subsequently found to be a in loaded firearm, synthetic marijuana, and promethazine.4 a He did not have a license to carry a firearm. Graham was charged at Docket 613-2016 with firearms not to be carried without a controlled summary vehicle code 1 substances (two counts), and two license, possession of By order dated October 11, 2016, this Court consolidated these appeals sua sponte. See Order, 10/11/2016. See 18 Pa.C.S. respectively. 2 § 6106(a)(1), and 35 P.S. §§ 780-113(a)(30) and (a)(16), 3 See Anders v. California, 386 U.S. 738 (1967); Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981). Promethazine Docket No. 613 4 prescription drug used to treat opioid addiction. 2016, Criminal Complaint, 3/8/2016, at 7-8. is a - -2 See J -S12026-17 violations.5 On June 6, 2016, Graham was sitting in his parked vehicle when officers responding to an unrelated call detected an odor of synthetic marijuana emanating from his vehicle. After further investigation, the officers found synthetic marijuana and drug paraphernalia in the vehicle. As a result of this incident, Graham was charged at Docket No. 3420-2016 with PWID, possession of controlled substances, and possession of drug paraphernalia. 6 On August 22, 2016, Graham entered a negotiated guilty plea in both cases. At Docket No. 613-2016, he pled guilty to one count each of firearms not to be carried without a license and possession of controlled substances, and at Docket No. 3420-2015, he entered PWID. a guilty plea to one count of In exchange for the plea, the Commonwealth agreed to a standard range sentence of two and one-half to five years' imprisonment for the firearms charge, and concurrent standard range sentences for the drug offenses. The trial court imposed the negotiated sentence that same day.' See 18 Pa.C.S. § 6106(a)(1), 35 P.S. § 780-113(a)(16), and 75 Pa.C.S. §§ 3334(a) (turning movements and required signals) and 4524(e)(i) (sun screening obstruction), respectively. 5 6 See 35 P.S. §§ 780-113(a)(30), (a)(16), and (a)(32). 7 Specifically, Graham was sentenced to concurrent terms of one to five years' imprisonment for PWID and six to 24 months' imprisonment for simple possession. -3 J -S12026-17 On August 31, 2016, Graham filed a pro se petition for reconsideration/modification of his sentence, asserting that his guilty plea However, since Graham was still represented by was coerced by counsel. plea counsel, the trial court did not consider the petition, but rather, forwarded it to counsel. Thereafter, on September 6, 2016, Graham filed a pro se letter in the trial court, requesting the court allow him to withdraw his guilty plea and appoint new counsel. Again, the court forwarded the letter to counsel. Thereafter, plea counsel requested permission to withdraw based on Graham's allegations of ineffectiveness. The court granted the request on September 6, 2016, and promptly appointed conflict counsel. On September 22, 2016, conflict counsel filed a post -sentence motion nunc pro tunc, challenging the discretionary aspects of his sentence and the ineffectiveness of plea counsel. The same day, counsel filed a notice of appeal to preserve Graham's direct appeal rights. The next day, the trial court denied counsel's request to proceed nunc pro tunc.8 When counsel files a petition to withdraw and accompanying Anders brief, we must first examine the request to withdraw before addressing any On October 11, 2016, the trial court ordered Graham to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Counsel responded on October 19, 2016, by filing a statement of his intent to file an Anders brief in lieu of a Rule 1925(b) statement. See Pa.R.A.P. 1925(c)(4). 8 -4 J -S12026-17 of the substantive issues raised on appeal. 124 A.3d 327, 330 (Pa. Super. 2015). reveals counsel has Commonwealth v. Bennett, Here, our review of the record substantially complied with the requirements for withdrawal outlined in Anders, supra, and its progeny. Specifically, counsel requested permission to withdraw based upon her determination that the appeal is "wholly frivolous,"9 filed an Anders brief pursuant to the dictates of Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009), furnished a copy of the Anders brief to Graham and advised Graham of his Commonwealth v. right to retain new counsel or proceed pro se. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en banc). Moreover, our review of the record reveals no correspondence from Graham supplementing the Anders brief. make an Accordingly, we will proceed to examine the record and independent determination of whether the appeal is wholly frivolous. The first issue identified in counsel's Anders brief asserts that Graham's guilty plea was "involuntary" due to the ineffectiveness of preliminary hearing and plea counsel. See Anders Brief at 10. Specifically, Graham argues if preliminary hearing counsel had a court stenographer transcribe the hearing, "guilty plea counsel would have been able to detect the inconsistent averments in the police criminal complaint that were 9 See Petition to Withdraw as Counsel, 12/1/2016, at -5 ¶ 10. J -S12026-17 inconsistent with later police statements." counsel "coerced" him into accepting a Id. Furthermore, he claims plea guilty plea by the following actions: [counsel] advis[ed] him that the pretrial motion would have been unsuccessful (which he now disputes) and further [] she emotionally coerced him by telling him his girlfriend thought he should take a plea (which he believes his girlfriend did not say). Id. We find Graham's challenge to his guilty plea is waived due to his failure to contest the voluntariness of the plea either during the plea colloquy or in a timely filed post -sentence motion. As this Court has explained: voluntariness of a guilty plea on direct appeal must either object during the plea colloquy or file a motion to withdraw the plea within ten days of sentencing. Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i). Failure to employ either measure results in waiver. Commonwealth v. Tareila, 895 A.2d 1266,1270 n. 3 (Pa.Super.2006). A defendant wishing to challenge the Commonwealth v. Lincoln, 72 A.3d 606, 609-610 (Pa. Super. 2013), appeal denied, 87 A.3d 319 (Pa. 2014). We note, however, that Graham's counsel did attempt to preserve this claim by requesting permission from the trial court to file a post -sentence motion nunc pro tunc. To be entitled to file a post -sentence motion nunc pro tunc, a defendant must, within 30 days after the imposition of sentence, demonstrate sufficient cause, i.e., reasons that excuse the late filing. ... When the defendant has met this burden and has shown sufficient cause, the trial court must then exercise its discretion in deciding whether to permit the defendant to file the post sentence motion nunc pro tunc. If the trial court chooses to -6 J -S12026-17 permit a defendant to file a post -sentence motion nunc pro tunc, the court must do so expressly. Commonwealth v. Dreves, 839 A.2d 1122, 1128 banc) (footnote omitted). (Pa. Super. 2003) (en Here, the trial court denied nunc pro tunc relief, and, accordingly, this claim is not preserved for our review.1° The second issue identified the in ineffectiveness assistance of prior counsel. prior counsel: (1) failed to employ hearing; (2) withdrew a a Anders brief asserts the Specifically, Graham alleges stenographer at the preliminary pretrial motion at Docket No. 613-2016; (3) lied when she told him his girlfriend wanted him to enter a guilty plea; (4) improperly caused delay in his case; (5) failed to recognized his "original complaints may have been tampered with or contained averments 10 In the Anders brief, counsel asks this Court to address Graham's guilty plea challenge on the merits based on Graham's pro se filing and dissatisfaction with plea counsel. However, we remind counsel that a pro se motion filed while a defendant is still represented by counsel is "a nullity, having no legal effect." Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa. Super. 2007), appeal denied, 936 A.2d 40 (Pa. 2007). Moreover, even if we were to consider Graham's argument, we would conclude he is entitled to no relief. In his written plea colloquies, Graham acknowledged that he was "pleading guilty of [his] own free will." Statements Accompanying Defendant's Request to Enter a Guilty Plea, 8/22/2016, Docket Nos. 613-2016 and 3420-2016, at ¶ 15. Further, during the oral colloquy, Graham stated that (1) he prepared and signed the written plea colloquies, (2) "everything" in the documents was true, and (3) he was "satisfied with the services [he] received from [his] attorney[.]" N.T., 8/22/2016, at 5. "A defendant is bound by the statements made during the plea colloquy, and a defendant may not later offer reasons for withdrawing the plea that contradict statements made when he pled." Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012), appeal denied, 63 A.3d 773 (Pa. 2013). -7 J -S12026-17 inconsistent with later police statements[;]" and (5) coerced him into entering an involuntary plea. Anders Brief at 5. However, it is well -established that ineffectiveness claims must be deferred until collateral review. In Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), the Pennsylvania Supreme Court reaffirmed the general rule first set forth in Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), that "claims of ineffective assistance of counsel are to be deferred to PCRA review; trial courts should not entertain claims of ineffectiveness upon post - verdict motions; and such claims should not be reviewed upon direct appeal." Holmes, supra, 79 A.3d at 576. Although the Holmes Court recognized two exceptions to that general rule, neither is applicable here.11 Accordingly, we dismiss Graham's ineffectiveness claims as premature, without prejudice to him to raise them in a timely collateral proceeding. See also Commonwealth v. Reid, 117 A.3d 777, 787 (Pa. Super. 2015) (finding ineffectiveness claims raised on direct appeal were premature pursuant to Holmes). The Holmes Court limited those exceptions to the following: (1) where the trial court determines that a claim of ineffectiveness is "both meritorious and apparent from the record so that immediate consideration and relief is warranted[;]" or (2) where the trial court finds "good cause" for unitary review, and the defendant makes a "knowing and express waiver of his entitlement to seek PCRA review from his conviction and sentence, including an express recognition that the waiver subjects further collateral review to the time and serial petition restrictions of the PCRA." Holmes, supra, 79 A.3d at 564, 577 (footnote omitted). 11 -8 J -S12026-17 Accordingly, because we agree with counsel's assessment that Graham's appeal is wholly frivolous, we affirm the judgment of sentence and grant counsel's petition to withdraw. Judgment of sentence affirmed. granted. Judgment Entered. J seph D. Seletyn, Prothonotary Date: 4/6/2017 -9 Petition to withdraw as counsel

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