J-S02004-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                   :      IN THE SUPERIOR COURT OF
                                                :           PENNSYLVANIA
                                                :
                  v.                            :
                                                :
                                                :
 DAVID WEIDOW                                   :
                                                :
                         Appellant              :      No. 1137 MDA 2019

       Appeal from the Judgment of Sentence Entered June 5, 2019
 In the Court of Common Pleas of Lackawanna County Criminal Division at
                    No(s): CP-35-CR-0000882-2018


BEFORE: BENDER, P.J.E., KING, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                               FILED MARCH 18, 2020

     Appellant, David Weidow, appeals from the judgment of sentence of six

months’     intermediate        punishment   (“IP”),    imposed   following   his   nolo

contendere plea for driving under the influence of a controlled substance

(“DUI”), 75 Pa.C.S. § 3802. Appellant claims that his nolo contendere plea

was deficient, and that the trial court erred when it denied his ostensible

attempt to withdraw his plea prior to sentencing. Additionally, his counsel,

Donna M. De Vita, Esq., seeks to withdraw her representation of Appellant

pursuant     to        Anders    v.   California,   386    U.S.   738   (1967),     and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After careful review,

we affirm Appellant’s judgment of sentence and grant counsel’s petition to

withdraw.

     In the early morning of October 13, 2017, police officers from the

Dunmore Police Department responded to a report of an accident where a Red
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Kia had struck and severed a utility pole at its base. Affidavit of Probable

Cause, 3/19/18, at 1. The Red Kia left the scene prior to the arrival of police.

Id. However, soon after they arrived, the officers observed a damaged red

Kia return to the scene of the accident. Id.      Appellant emerged from the

vehicle and took responsibility for the accident, telling the officers that the

pole “had jumped out in front of him.” Id.

      The police observed that Appellant “was having a hard time standing

up.” Id. He denied being intoxicated on alcohol or “any type of narcotic,” but

advised the officers that he “had recently taken Ambien to help him sleep.”

Id. During this discussion with the officers, Appellant “kept dozing off and

had to be woken up several times….” Id. He was “very incoherent and was

barely able to speak or keep his eyes open.” Id.

      The officers transported Appellant to a local hospital where he consented

to drug and alcohol testing. Id. Blood tests revealed that, “at the time of the

crash[, Appellant] had 342 ng/mL [of] Zolpidem in his system. Id. “Peak

[p]lasma following a single oral dose should show 121 ng/mL at its highest

level[,]” thus, these results demonstrated that the prescribed dosage was

exceeded by a factor of 3. Id. The Commonwealth subsequently charged

Appellant with one count of DUI. Id.

       On March 14, 2019, Appellant pled nolo contendere to DUI at CP-35-

CR-0000882-2018 (“CP-882”).       On the same day, he also pled guilty to

unrelated charges at CP-35-CR-0000880-2018 (false reports and related

charges) (“CP-880”) and CP-35-CR-0000881-2018 (bad checks and related

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charges) (“CP-881”).       Appellant completed both written and oral plea

colloquies. Nolo Contendere Plea Colloquy (“NCPC”), 3/14/19, at 1-3; N.T.,

3/14/19, at 2-5. Sentencing was then scheduled for June 5, 2019.

     At the sentencing hearing, Appellant presented an oral motion to

withdraw his nolo contendere plea, and asked to proceed to trial with a new

attorney.     N.T., 3/14/19, at 2.     When asked to describe the basis for

withdrawing the plea, Appellant explained only that he was not guilty of the

bad checks charge.      Id. at 3-4, 6-7.     He did not proffer any reason for

withdrawing his DUI plea. The trial court denied the motion, and proceeded

to sentence Appellant to 6 months’ probation at CP-880, a consecutive term

of 6 months’ probation at CP-881, and to 6 months’ IP at CP-882, concurrent

to the sentences imposed at CP-880 and CP-881.

     Appellant filed a pro se notice of appeal on July 5, 2019. He filed a

timely, court-ordered, and counseled Pa.R.A.P. 1925(b) statement on

September 4, 2019. The trial court issued its Rule 1925(a) opinion on October

1, 2019.    In the Anders brief before us, Appellant’s counsel presents the

following statement of the questions involved:

     A. Whether the nolo contendere plea was deficient when it failed
     to provide on the record the following inquiry:

           (1) Whether … Appellant understands the nature of the
           charges to which he was pleading nolo contendere?

           (2) Whether [there is] a factual basis for the plea?

           (3) Whether … Appellant understands that he had the right
           to trial by jury?



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        (4) Whether … Appellant understands that he was presumed
        innocent until found guilty?

        (5) Whether … Appellant is aware of the permissible range
        of sentence and/or fine for the DUI offense charged?

     B. Whether the trial court erred when it denied Appellant’s pre-
     sentence request to withdraw his nolo contendere plea?

Anders Brief at 4.

     This Court must first pass upon counsel’s petition to withdraw
     before reviewing the merits of the underlying issues presented by
     the appellant. Commonwealth v. Goodwin, 928 A.2d 287, 290
     (Pa. Super. 2007) (en banc).

        Prior to withdrawing as counsel on a direct appeal under
        Anders, counsel must file a brief that meets the
        requirements established by our Supreme Court in
        Santiago. The 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, 978 A.2d at 361. Counsel also must provide a copy of
     the Anders brief to his client. Attending the brief must be a letter
     that advises the client of his right to: “(1) retain new counsel to
     pursue the appeal; (2) proceed pro se on appeal; or (3) raise any
     points that the appellant deems worthy of the court’s attention in
     addition to the points raised by counsel in the Anders brief.”
     Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super.
     2007)….

Commonwealth v. Orellana, 86 A.3d 877, 879–80 (Pa. Super. 2014)

(cleaned up).   After determining that counsel has satisfied these technical

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requirements of Anders and Santiago, this Court must then “conduct an

independent review of the record to discern if there are any additional, non-

frivolous issues overlooked by counsel.” Commonwealth v. Flowers, 113

A.3d 1246, 1250 (Pa. Super. 2015) (citations and footnote omitted).

      In the case sub judice, Attorney De Vita’s Anders brief complies with

the above-stated requirements.      Namely, she includes a summary of the

relevant factual and procedural history, she refers to portions of the record

that could arguably support Appellant’s claims, and she sets forth her

conclusion that Appellant’s appeal is frivolous. She also explains her reasons

for reaching that determination, and supports her rationale with citations to

the record and pertinent legal authority. Attorney De Vita also states in her

petition to withdraw that she supplied Appellant with a copy of her Anders

brief. Additionally, she attached a letter directed to Appellant to her petition

to withdraw, in which she informed him of the rights enumerated in Nischan.

Accordingly, counsel complied with the technical requirements for withdrawal.

We will now independently review the record to determine if Appellant’s issues

are frivolous, and to ascertain if there are any other, non-frivolous issues he

could pursue on appeal. For ease of disposition, we address Appellant’s issues

in reverse order.

      “There is no absolute right to withdraw a guilty plea. Nevertheless, prior

to the imposition of sentence, a defendant should be permitted to withdraw

his plea for any fair and just reason, provided there is no substantial prejudice

to the Commonwealth.” Commonwealth v. Walker, 26 A.3d 525, 529 (Pa.

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Super.   2011)   (citations   and   quotation   marks   omitted);   see    also

Commonwealth v. Randolph, 718 A.2d 1242 (Pa. 1998); Commonwealth

v. Katonka, 33 A.3d 44 (Pa. Super. 2011) (en banc). An assertion of

innocence has consistently been held to constitute a fair and just reason to

withdraw a plea. Randolph, supra; Commonwealth v. Gordy, 73 A.3d 620

(Pa. Super. 2013). However, a bare assertion of innocence is no longer a fair

and just reason permitting a pre-sentence withdrawal of a guilty plea; instead,

a defendant’s innocence claim must be at least plausible to demonstrate, in

and of itself, a fair and just reason for pre-sentence withdrawal of the plea.

Pa.R.Crim.P. 591(A); see also Commonwealth v. Baez, 169 A.3d 35, 39

(Pa. Super. 2017).

      Instantly, although Appellant orally motioned to withdraw his guilty plea

at the sentencing hearing and prior to the imposition of sentence, at no time

did he assert his innocence as to the DUI charge at CP-882.         Appellant’s

arguments at the sentencing hearing in support of his motion to withdraw his

plea exclusively concerned his nolo contendere plea to the bad checks charge

at CP-881:

      At the time that [Appellant] … pled nolo contendere, he took
      responsibility for committing the crime, both in the written plea
      colloquy, and in testimony before the court. He also agreed that
      he was admitting that the Commonwealth had enough evidence
      to convict him if he went to trial. At the time of sentencing, he
      generally asserted that he was not guilty, but when the court
      questioned him, [he] acknowledged that had written a bad check
      and did not assert his innocence in the DUI case at all. … It was
      thus not in error for the court to deny his motion to withdraw his
      nolo contendere plea.


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Trial Court Opinion, 10/1/19, at 6 (citations omitted).

       We agree with the trial court’s analysis. Appellant never asserted his

innocence to the DUI charge when motioning to withdraw his nolo contendere

plea.1 Accordingly, the trial court clearly did not err when it denied that motion

with respect to the plea entered at CP-882. As such, we agree with Attorney

De Vita that this claim is frivolous.

       Next, we consider whether Appellant has a colorable claim that his nolo

contendere plea colloquy at CP-882 was deficient.

          Our law is clear that, to be valid, a guilty plea must be
          knowingly, voluntarily and intelligently entered. There is no
          absolute right to withdraw a guilty plea, and the decision as
          to whether to allow a defendant to do so is a matter within
          the sound discretion of the trial court. To withdraw a plea
          after sentencing, a defendant must make a showing of
          prejudice amounting to “manifest injustice.” A plea rises to
          the level of manifest injustice when it was entered into
          involuntarily, unknowingly, or unintelligently. A defendant’s
          disappointment in the sentence imposed does not constitute
          “manifest injustice.”

       Commonwealth v. Pollard, 832 A.2d 517, 522 (Pa. Super.
       2003) (citations and quotation marks omitted).




____________________________________________


1 Appellant did proffer such an argument in his pro se notice of appeal. See
Pro Se Notice of Appeal, 7/5/19. Although Appellant is entitled to have his
pro se notice of appeal trigger his direct appeal, despite being represented by
counsel, he is not otherwise entitled to hybrid representation. Accordingly,
we disregard the aspects of Appellant’s pro se notice of appeal pertaining to
the merits of his claim. In any event, the reasons set forth in Appellant’s pro
se notice of appeal were proffered long after his motion to withdraw his nolo
contendere plea was denied by the trial court. As such, those claims are
waived.

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     In order to ensure a voluntary, knowing, and intelligent plea, trial
     courts are required to ask the following questions in the guilty plea
     colloquy:

        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 a 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 ranges 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?

Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa. Super. 2008).

     “The guilty plea colloquy must affirmatively demonstrate that the
     defendant understood what the plea connoted and its
     consequences.” Commonwealth v. Lewis, 708 A.2d 497, 501
     (Pa. Super. 1998). “Once a defendant has entered a plea of guilty,
     it is presumed that he was aware of what he was doing, and the
     burden of proving involuntariness is upon him.” Commonwealth
     v. Stork, 737 A.2d 789, 790 (Pa. Super. 1999) (citation and
     internal brackets omitted). “In determining whether a guilty plea
     was entered knowingly and voluntarily, … a court is free to
     consider the totality of the circumstances surrounding the plea.”
     Commonwealth v. Flanagan, 578 Pa. 587, 854 A.2d 489, 513
     (2004) (citation and internal quotation marks omitted).
     Furthermore, nothing in the rule precludes the supplementation
     of the oral colloquy by a written colloquy that is read, completed,
     and signed by the defendant and made a part of the plea
     proceedings. Commonwealth v. Morrison, 878 A.2d 102, 108
     (Pa. Super. 2005).

Bedell, 954 A.2d at 1212–13.

     Appellant first argues that he did not understand the nature of the

charges to which he pled nolo contendere, or the factual basis for the plea.

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However, the written plea colloquy belies this claim.          Therein, Appellant

acknowledged the nature of the charges against him.          See NCPC at 1 ¶ 6

(asking, “List the charges that you are entering a nolo contendere plea to?”

Appellant responded, in his own handwriting, “DUI Tier 3 first offense”). When

asked if he understood the factual basis for the plea, Appellant, in his own

handwriting, referenced the criminal information.        Id. at 3 ¶ 23.     In the

criminal information, the Commonwealth clearly set forth a summary of the

facts it intended to prove at trial, which dovetail with the facts set forth in the

affidavit of probable cause referenced above.         See Criminal Information,

5/29/18, at 1.        Thus, we ascertain no deficiencies regarding Appellant’s

understanding of the nature of the charges against him and the factual basis

for his plea. Although the oral colloquy was not as thorough as the written

colloquy in this regard, the written colloquy sufficiently demonstrated that

Appellant was aware of the nature of the pled-to charge and the factual basis

for it.

          Next, Appellant claims he did not understand that he had the right to a

jury trial and, relatedly, that he was entitled to the presumption of innocence

if he went to trial. This claim is also belied by the record. On the written plea

colloquy, Appellant was asked the following question:

          Do you understand that even though you are guilty or may be
          guilty you are presumed to be innocent and have the right to go
          to trial either before a judge or a jury of 12 individuals and the
          Commonwealth must prove to each and every juror or the judge
          that you are guilty beyond a reasonable doubt?



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NCPC at 2 ¶ 11.     He responded, “yes.”      Id.   Additionally, the trial court

reiterated Appellant’s right to a jury trial during the oral plea colloquy. See

N.T., 3/14/19, at 3. Accordingly, we ascertain no deficiencies in the colloquies

with regard to Appellant’s understanding of his right to a jury trial and the

presumption of innocence.

      Finally, Appellant claims that the colloquies were deficient regarding his

understanding of the permissible range of sentences and fines for the DUI

offense to which he was pleading nolo contendere. However, Appellant wrote

out, in his own handwriting, the maximum possible sentence, the maximum

fine, the mandatory minimum sentence, as well as the civil sanction (license

suspension) for his DUI offense in the written plea colloquy. NCPC at 2 ¶ 19,

21. During the oral colloquy, the trial court did not give a breakdown for each

specific offense, but it did inform Appellant of the maximum fines and

sentences Appellant was facing in aggregate.             N.T., 3/14/19, at 4.

Nevertheless, immediately prior, the Commonwealth stated on the record the

maximum possible sentence, the maximum fine, the mandatory minimum

sentence, as well as the civil sanction to which Appellant was exposed if

convicted of the DUI offense.      Id. at 2.    Accordingly, we ascertain no

deficiencies in the colloquies with regard to Appellant’s understanding of the

permissible range of sentences and fines for the DUI offense to which he was

pleading nolo contendere.

      In sum, we cannot identify any deficiencies in the written and oral nolo

contendere plea colloquies that suggest that Appellant’s plea was not

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knowingly, voluntarily and intelligently entered.        Moreover, after an

independent review of the record, we cannot discern any additional, non-

frivolous issues overlooked by counsel.     Accordingly, we affirm Appellant’s

judgment of sentence and grant counsel’s petition to withdraw.

     Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/18/2020




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