J-S75012-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA


                   v.

JERMAINE THOMPSON

                        Appellant                  No. 870 EDA 2016


         Appeal from the Judgment of Sentence February 22, 2016
            In the Court of Common Pleas of Delaware County
           Criminal Division at No(s): CP-23-CR-0004572-2015



BEFORE: BOWES, MOULTON AND MUSMANNO JJ.

MEMORANDUM BY BOWES, J.:                     FILED NOVEMBER 30, 2016

     Jermaine Thompson appeals from the judgment of sentence of a fine

of $200, plus costs, imposed by the trial court after he pled guilty to

possession of a small amount of marijuana.      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 those facts were incorporated into the guilty plea

proceedings in support of the factual basis for Appellant’s plea.       At

approximately 12:31 a.m. on May 9, 2015, Officer John Esher of the

Haverford Township Police Department received a radio call to investigate a
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running silver Honda parked in front of a certain residence. Upon arriving at

that location, Officer Esher observed a silver Honda, occupied by Appellant

and one other individual, parked in front, and approached the vehicle and

knocked on the window. As Appellant opened his window, a plume of smoke

bellowed out of it.      Officer Esher immediately recognized the odor of the

smoke as burnt marijuana.           When the officer asked Appellant what they

were doing, Appellant replied, “smoking.”          Affidavit of Probable Cause,

5/12/15, at 1. Officer Esher directed Appellant to exit the vehicle and asked

him whether there were any drugs or weapons in the car.               Appellant

answered in the affirmative, and, upon inspection, the officer discovered a

small amount of marijuana within the vehicle.

       Based on the foregoing, Appellant was charged with possession of a

small amount of marijuana.           On February 22, 2016, Appellant entered a

negotiated guilty plea to the offense.           The trial court conducted the

mandated colloquy and approved the plea arrangement. Appellant’s written

guilty plea statement was also entered into the record. The court accepted

Appellant’s guilty plea and sentenced him, in accordance with the negotiated

terms, to a $200 fine plus costs. Thereafter, Appellant filed a timely notice

of appeal.1 In lieu of a Rule 1925(b) statement of errors complained of on

____________________________________________


1
  The notice of appeal was filed by counsel, who indicated that Appellant had
requested that an appeal be pursued.



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appeal, counsel filed a statement of intent to file an Anders brief in

accordance with Pa.R.C.P. 1925(c)(4). The trial court then authored its Rule

1925(a) opinion.

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

accompanying Anders brief, asserting there are no non-frivolous issues to

be reviewed.    In the Anders brief, counsel set forth the following as the

issue arguably supporting an appeal: “Whether the Lower Court should have

explored [Appellant’s] eligibility for the Accelerated Rehabilitative Disposition

[(“ARD”)] program during the guilty plea colloquy?” Anders brief at 1.

      Since we do not address the merits of issues raised on appeal without

first reviewing a request to withdraw, we evaluate counsel’s petition to

withdraw at the outset.       Commonwealth v. Cartrette, 83 A.3d 1030

(Pa.Super. 2013) (en banc).          Counsel must meet three procedural

requirements in order to withdraw: 1) petition for leave to withdraw and

state that, after making a conscientious examination of the record, counsel

has concluded that the appeal is frivolous; 2) provide a copy of the Anders

brief to the defendant; and 3) inform the defendant that he has the right to

retain private counsel or raise, pro se, additional arguments that the

defendant deems worthy of the court’s attention. Id.

      Counsel’s petition to withdraw provides that he made a thorough

review of the record and concluded that the appeal is wholly frivolous.

Counsel sent Appellant copies of the petition to withdraw and the Anders

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brief, and instructed him that he had the right to retain new counsel. In that

communication, counsel also expressed that Appellant could proceed pro se

and raise any issues he believed this Court should consider. Counsel mailed

these documents to Appellant at his last-known address, however, they were

returned with the notation, “Attempted. Not Known.”               Letter to Superior

Court Prothonotary, 8/12/16, at unnumbered 1. As Appellant failed to notify

the Court or his attorney as to any changes in his address during the

pendency of this appeal, we find counsel has complied substantially with the

procedural requirements of Anders.

        We   now    consider    whether    counsel’s   Anders     brief   meets   the

substantive elements of Santiago. Pursuant to Santiago, an 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, supra at 361.

        Counsel    provided    the   procedural   posture   and    relevant   factual

background with citations to the record. He presented argument tending to

support the appeal. Nevertheless, counsel concludes that Appellant’s appeal

is frivolous, setting forth reasons in support of that position, and case law



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that holds this issue would not entitled him to relief.    Thus, counsel has

complied with the requirements of Anders/Santiago.

      We now proceed to examine the issue presented by counsel in the

Anders brief.   Counsel styles this claim as contending Appellant did not

enter his guilty plea knowingly, voluntarily, and intelligently. This assertion

concerns an exchange which occurred during the plea colloquy.        After the

plea judge inquired whether Appellant had any additional information to

offer the court, Appellant informed the court that certain court notices were

being sent to the wrong address. The following discussion ensued:

      Appellant: Yeah. And I guess they’ve been mailing it out to
      Townsend, Delaware. So that’s why I never was aware of the
      Court date, because I called my Public Defender, Tom, I guess.
      He said that I was – I called him like a couple of months ago. I
      was asking him about the ARD Program. And he was like, have
      they sent the letter to you? I was like, no, I haven’t gotten the
      letter. So he said, wait for a letter. But apparently, it’s being
      going to Townsend Delaware, which I never lived at.

      Appellant’s Counsel: Your Honor, I do have him missing – I
      have no shows in here, 11/18, 12/16, 1/20, and then I guess I
      was assigned to it on February 1st. I did explain to [Appellant]
      that I’d be willing to go and see if they would consider him for
      ARD, because I think there might have been some mix-up with
      the address, but he indicated to me that he would rather take
      the plea with no probation and fines.

      The Court: All right. Thank you. As it then relates to Count
      One, Personal Use of Marijuana, an Ungraded Misdemeanor,
      pursuant to counsel’s agreement, [Appellant] will pay a $200
      fine, $100 assessment, laboratory fees incorporated with the
      cost of prosecution. Any questions, sir?

      Appellant: No, sir.



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N.T. Plea Colloquy, 2/22/16, at 7-8. It is well-settled that Pennsylvania law

requires that a guilty plea be made knowingly, voluntarily, and intelligently.

Commonwealth v. Rush, 909 A.2d 805 (Pa.Super. 2006).              In order to

ascertain whether a guilty plea is constitutionally valid we evaluate such a

plea utilizing the following guidelines:

      the guilty plea colloquy must affirmatively show that the
      defendant understood what the plea connoted and its
      consequences. This determination is to be made by examining
      the totality of the circumstances surrounding the entry of the
      plea.   A plea of guilty 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.

Id. at 808 (citation omitted).

      As an issue of arguable merit, Appellant’s counsel asserts the court

should have inquired in more detail as to whether Appellant understood the

impact his guilty plea would have on a potential ARD disposition.         Thus,

counsel maintains, Appellant’s choice of a guilty plea reflected that he did

not comprehend, pursuant to Rush, supra, “what the plea connoted and its

consequences.” Anders brief at 4.

      Herein, when prompted by the court, Appellant did not question the

unavailability of ARD, but rather, acquiesced to counsel’s statement that

Appellant preferred entering a guilty plea without probation to ARD.

Moreover, the court found Appellant’s guilty plea was knowing, intelligent,

and voluntary, and Appellant bears the burden of proving otherwise.

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Commonwealth v. Prendes, 97 A.3d 337, 352 (Pa.Super. 2014).

Notwithstanding the apparent validity of Appellant’s guilty plea, we observe

that Appellant did not object to his guilty plea at the colloquy nor did he file

a timely motion to withdraw the plea.       As a result, his challenge to the

validity of his guilty plea is waived. Commonwealth v. Lincoln, 72 A.3d

606, 609-610 (Pa.Super. 2013). Therefore, this issue is wholly frivolous.

      After conducting an independent review of the certified record

pursuant to Commonwealth v. Flowers, 113 A.3d 1246 (Pa.Super. 2015),

we find there are no other non-frivolous issues that can be raised in this

appeal.

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

granted. Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/30/2016




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