J-S81006-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                      v.

JULIAN DESHIELDS

                            Appellant                No. 1261 EDA 2016


          Appeal from the Judgment of Sentence March 24, 2016
            In the Court of Common Pleas of Delaware County
           Criminal Division at No(s): CP-23-CR-0001724-2016



BEFORE: BOWES AND MOULTON, JJ., AND STEVENS, P.J.E.*

MEMORANDUM BY BOWES, J.:                        FILED FEBRUARY 22, 2017

      Julian DeShields appeals from the judgment of sentence of seven to

twenty-three months incarceration followed by a consecutive period of three

years probation imposed following a nolo contendere plea. Counsel filed a

petition to withdraw from representation and a brief pursuant to Anders v.

California, 386 U.S. 738 (1967) and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009). We affirm and grant counsel’s petition to withdraw.

      We rely on the facts from the affidavit of probable cause supporting

the complaint as Appellant stipulated to the affidavit as providing the factual

basis for his plea.        On October 15, 2015, homeowners at Ruskin Lane

contacted the Upper Darby Township Police Department to report a burglary.

A neighbor provided surveillance video from a camera pointed towards the

* Former Justice specially assigned to the Superior Court.
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victims’ residence, which revealed two males entering it through a basement

window.      The victims were shown still frame images of the males.         The

victim’s daughter, Appellant’s former girlfriend, identified the males as

Appellant and his brother.        The police confirmed that Appellant, who was

fifteen years old at the time of this incident, was not present in school on

October 15th.

       Based on the foregoing investigation, a juvenile delinquency petition

was filed.    The Commonwealth later sought transfer to the court of common

pleas, which was granted on March 24, 2016.            Appellant tended his nolo

contendere plea that same day, whereupon the judge imposed the

aforementioned sentence, which was recommended by the Commonwealth.

       On April 21, 2016, Appellant filed a post-sentence motion challenging

the validity of the guilty plea.        The next day, Appellant filed a notice of

appeal.1 In lieu of a Pa.R.A.P. 1925(b) statement of errors complained of on

appeal, counsel filed a Rule 1925(c)(4) statement indicating his intent to file

an Anders brief.

       Appellant’s counsel now files a petition to withdraw and accompanying

Anders brief, asserting that there are no non-frivolous issues to be
____________________________________________


1
   The notice of appeal was filed by Assistant Public Defender Patrick J.
Connors. The motion challenging the plea was filed by Assistant Public
Defender James S. Wright, who represented Appellant at the plea. The
application to withdraw states that the notice of appeal was filed at
Appellant’s request.



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reviewed.   The brief sets forth one issue arguably supporting an appeal:

“Whether [Appellant] entered a knowing, voluntary and intelligent [nolo

contendere] plea given his young age?” Anders brief at 1.

      We first must address whether counsel has complied with the

procedural requirements of Anders.       Commonwealth v. Cartrette, 83

A.3d 1030 (Pa.Super. 2013) (en banc). 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.

Id. at 1032 (citation omitted).

      Counsel’s petition provides that he has thoroughly reviewed the case

and concluded that this appeal is wholly frivolous. Copies of the petition and

Anders brief were provided to Appellant, and the accompanying letter

informed Appellant of his right to raise additional matters pro se or hire his

own attorney.    Thus, we find counsel has complied with the procedural

requirements.

      We next address whether the Anders brief complies with the

requirements set forth by our Supreme Court in Santiago, supra:

      [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

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      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.

Id. at 361. The brief fully complies with these four requirements, as it sets

forth the procedural history and relevant facts with citations to the record;

refers to an arguably meritorious ground; concludes that the appeal is

frivolous; and explains why counsel reached that conclusion.       Therefore,

counsel has fully complied with the requirements of Anders and Santiago.

      We now proceed to examine the issue raised by counsel in the brief.

Counsel frames this issue as one implicating the trial judge’s duties in

accepting a plea.    To wit, counsel maintains that there is an issue of

arguable merit as to whether Appellant’s age should have prompted the

judge to engage in a more detailed colloquy to ascertain the voluntariness of

the plea.

      Instantly, we note that in terms of its effect upon a case, a plea of

nolo contendere is treated the same as a guilty plea. Commonwealth v.

Leidig, 850 A.2d 743 (Pa.Super. 2004).      Before accepting a plea of nolo

contendere, the judge must determine, on the record, “after inquiry of the

defendant that the plea is voluntarily and understandingly tendered.”

Pa.R.Crim.P. 590(A)(3). The Comment delineates the areas of inquiry that,

at a minimum, should be assessed by the trial judge:




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       (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 the right
       to 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 sentences
       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?

       (7) Does the defendant understand that the Commonwealth has
       a right to have a jury decide the degree of guilt if the defendant
       pleads guilty to murder generally?

Comment, Pa.R.Crim.P. 590.              Nothing in the Rule specifies additional

measures that must be taken where the defendant is a juvenile.

       Additionally, we note that, in Commonwealth v. Lewis, 708 A.2d

497 (Pa.Super. 1998), we reviewed the challenge by a minor defendant who

pleaded guilty to first-degree murder in exchange for the Commonwealth

agreeing to forego seeking the death penalty.2          Among other claims, the

appellant asserted that refusing to permit him the opportunity to withdraw

his plea was a manifest injustice because his legal guardian was not present
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2
  This case predates the United States Supreme Court decision in Roper v.
Simmons, 543 U.S. 551 (2005), which bars the execution of individuals
who were under eighteen years old when they committed their crimes.



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to aid him in his decision to plead guilty. Lewis likened his situation to that

of a juvenile waiving his rights under Miranda v. Arizona, 384 U.S. 436

(1966). See In re V.C., 66 A.3d 341, 351 (Pa.Super. 2013) (presence or

absence of interested adult is one factor to consider in determining whether

juvenile’s waiver of Miranda rights is voluntary). We disagreed, observing

that “The crucial distinction between deciding to plead guilty and deciding to

waive Miranda rights is that, at the guilty plea stage the juvenile is

represented by counsel whose job is to ensure that his client voluntarily

waives his rights.”   Lewis, supra at 503, n.7.         The same logic applies

equally herein, where counsel was available to assist Appellant and ensure

that the plea was a voluntary exercise of his rights.

      Appellant’s counsel suggests that the trial judge should assume the

responsibility of conducting a more probing and searching inquiry when

accepting a guilty plea from a juvenile.        However, for a plea to be

constitutionally valid, “the guilty plea colloquy must affirmatively show that

the defendant understood what the plea connoted and its consequences.”

Commonwealth v. Eichinger, 108 A.3d 821, 832 (Pa. 2014). Our review

of the guilty plea hearing transcript demonstrates that the trial judge

followed the requirements set forth by Pa.R.Crim.P. 590.        Appellant also

completed an extensive guilty plea colloquy form, and answered in the

negative when the trial court specifically asked if he had any questions of

Attorney Wright or the court. These procedural safeguards ensured to the

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judge’s satisfaction that the plea was knowing, intelligent, and voluntary.

Additionally, Appellant did not raise any additional matters in response to

counsel’s application to withdraw.             Thus, there is nothing of record to

indicate the plea was involuntary3 in some capacity, and he would bear the

burden of proving involuntariness. See Commonwealth v. Willis, 68 A.3d

997, 1002 (Pa.Super. 2013). Therefore, this issue is wholly frivolous.

       We have conducted an independent review of the record, as required

by Commonwealth v. Flowers, 113 A.3d 1246, 1249 (Pa.Super. 2015),

and have concluded that there are no preserved non-frivolous issues that

can be raised in this appeal.         Hence, we concur with counsel's conclusion

that this appeal is wholly frivolous and grant his application to withdraw.

       Petition of Patrick J. Connors, Esquire to withdraw as counsel is

granted. Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/22/2017
____________________________________________


3
   The motion to withdraw the guilty plea stated, “That subsequent to said
plea, documentation was provided to defendant tending to support his claim
of innocence in this matter.” The motion does not elaborate on this
purported documentation, and the Notice of Appeal was filed the next day.



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