J-S59042-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

RUDOLPH FIELDS

                           Appellant                    No. 22 EDA 2016


             Appeal from the Judgment of Sentence March 20, 2015
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s): CP-51-CR-1102011-2003
                                CP-51-CR-1102231-2003

BEFORE: BENDER, P.J.E., OLSON, J., and FITZGERALD,* J.

MEMORANDUM BY FITZGERALD, J.:                      FILED OCTOBER 19, 2016

        Appellant, Rudolph Fields, appeals nunc pro tunc from the judgment of

sentence entered in the Philadelphia County Court of Common Pleas.

Appellant contends that his guilty plea was involuntary. Appellant’s counsel,

Stephen T. O’Hanlon, Esq., has filed a petition to withdraw pursuant to

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

McClendon, 434 A.2d 1185 (Pa. 1981).           We affirm and grant counsel’s

petition to withdraw.

        A prior panel of this Court summarized the facts of this case as

follows:

              On February 8, 1993, [A]ppellant pled guilty to rape
           and burglary, and was sentenced to an aggregate term of
           4 to 10 years imprisonment. On December 26, 2002, a

*
    Former Justice specially assigned to the Superior Court.
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           few weeks after his release from prison, [A]ppellant forced
           his way into the victim’s apartment, repeatedly punched
           her in the head, and threatened to hurt her if she cried or
           made noise. Appellant then made the victim give him the
           contents of her wallet and proceeded to rape her and force
           her to perform oral sex on him. After the rape, [A]ppellant
           ordered [the victim] to take a shower, during which he
           inserted his finger and a washcloth into the victim’s vagina
           in an attempt to remove and destroy any evidence of the
           sexual assault. After again threatening the victim not to
           call the police, [A]ppellant fled in her vehicle.

Commonwealth v. Fields, 2636 EDA 2005 at 2 (Pa. Super. Sept. 14,

2006) (unpublished memorandum).

        On August 5, 2005, Appellant was sentenced to forty-five and one-half

to ninety-one years’ imprisonment following his guilty plea 1 to rape,2

involuntary deviate sexual intercourse,3 robbery,4 aggravated indecent

assault,5 burglary,6 terroristic threats,7 unlawful restraint,8 and failure to




1
    A guilty plea colloquy was held on April 19, 2005.
2
    18 Pa.C.S. § 3121.
3
    18 Pa.C.S. § 3123.
4
    18 Pa.C.S. § 3701.
5
    18 Pa.C.S. § 3125.
6
    18 Pa.C.S. § 3502.
7
    18 Pa.C.S. § 2706.
8
    18 Pa.C.S. § 2902.




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comply with the reporting requirements of Megan’s Law.9               Appellant

appealed and this Court affirmed the judgment of sentence.            Id.   The

Pennsylvania Supreme Court denied his petition for allowance of appeal.

Commonwealth v. Fields, 918 A.2d 742 (Pa. 2007).

        Appellant filed a pro se Post Conviction Relief Act10 (“PCRA”) petition.

Counsel was appointed and filed an amended PCRA.              The PCRA court

dismissed the petition on January 20, 2009.           Subsequently, the court

reinstated Appellant’s right to file an appeal nunc pro tunc.        This Court

vacated and remanded for resentencing. Commonwealth v. Fields, 3075

EDA 2009 (Pa. Super. Apr. 28, 2011) (unpublished memorandum).

        The Commonwealth filed a petition for allowance of appeal.           On

December 31, 2014, the Pennsylvania Supreme Court granted the petition

and remanded the case for reinstatement of Appellant’s original judgment of

sentence.     Commonwealth v. Fields, 107 A.3d 738 (Pa. 2014).11             On


9
  42 Pa.C.S. §§ 9791-9799. See 42 Pa.C.S. § 9799.41 (enumerating the
sections of the statute that have expired as of December 20, 2012, replaced
by the Sex Offender Registration and Notification Act (“SORNA”)).
10
     42 Pa.C.S. §§ 9541-9546.
11
     The Supreme Court held

          that Section 9714(a)(1) of the Sentencing Code, 42
          Pa.C.S. § 9714(a)(1), requires that a second-strike
          offender be sentenced to the prescribed minimum term of
          incarceration for each conviction of a crime of violence that
          is part of the second strike. Because this is what the
          common pleas court did, the Superior Court’s order is



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March 20, 2015, the trial court reinstated Appellant’s original sentence.

Appellant filed a petition to withdraw his guilty plea on March 30, 2015.12

The trial court denied the motion to withdraw the guilty plea on April 27,

2015.

        On November 2, 2015, counsel filed an amended PCRA petition13

requesting reinstatement of his direct appeal rights nunc pro tunc. Appellant

contended that he was represented during resentencing and he requested

counsel    to   file   a   direct   appeal.     Amended   PCRA   Pet.   Requesting

Reinstatement of Appellate Rights Nunc Pro Tunc, 11/2/15, at 3.                On

December 21, 2015, the PCRA court granted him leave to file a notice of




          reversed and the matter is remanded for reinstatement of
          Appellee’s judgment of sentence.

Fields, 107 A.3d at 744–45.
12
  In Commonwealth v. Lincoln, 72 A.3d 606 (Pa. Super. 2013), this
Court opined:

          A defendant wishing to challenge the 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).

Id. at 609–10.
13
  See generally Commonwealth v. Eller, 807 A.2d 838, 839 (Pa. 2002)
(holding where counsel failed to file requested direct appeal, “appellant was
not entitled to pursue reinstatement of his appellate rights nunc pro tunc
outside the PCRA”).




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direct appeal nunc pro tunc to this Court.14 Appellant filed a notice of appeal

nunc pro tunc on December 24, 2015. Appellant was not ordered to file a

Pa.R.A.P. 1925(b) statement of errors complained of on appeal. Appellant

contends his guilty plea was not knowing, intelligent, and voluntary. 15

      Counsel filed an Anders petition and brief with this Court.           As a

prefatory   matter,   we   examine   whether    counsel   complied   with    the

requirements of Anders, supra, and McClendon, supra, as clarified by the

Pennsylvania Supreme Court in Commonwealth v. Santiago, 978 A.2d

349 (Pa. 2009).

         Neither Anders nor McClendon requires that counsel’s
         brief provide an argument of any sort, let alone the type of
         argument that counsel develops in a merits brief. To
         repeat, what the brief must provide under Anders are
         references to anything in the record that might arguably
         support the appeal. Indeed, we have recognized and
         emphasized the difference between an Anders brief, which

14
   We note that “reinstatement of direct appeal rights nunc pro tunc denotes
that the appellant now has the same direct appeal rights as he would have
had in the beginning.” Commonwealth v. Wright, 846 A.2d 730, 735 (Pa.
Super. 2004). Furthermore, the “‘clock’ is reset only where direct appeal
rights are restored or original conviction is disturbed[.]” Commonwealth v.
McKeever, 947 A.2d 782, 786 (Pa. Super. 2008).
15
    Notwithstanding the fact that the trial court restored Appellant’s direct
appeal rights nunc pro tunc, the court addressed Appellant’s claim “[i]n the
context of a PCRA claim . . . .” Trial Ct. Op., 3/1/16, at 5. The trial court
found that counsel “was not ineffective for failing to perfect an appeal to the
Superior Court following the reinstatement of [Appellant’s] original sentence
on March 20, 2015 . . . .” Id. at 7. Additionally, the court avers that the
appeal should be quashed. Id. “[A]n appellate court has the ability to
affirm a valid judgment or verdict for any reason appearing as of record.”
Commonwealth v. Parker, 919 A.2d 943, 948 (Pa. 2007).




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         offers an issue for a court’s consideration, but reflects
         counsel’s candid assessment of the complete lack of merit
         in his client’s case, and a merits brief, which implies that
         an issue is worthy of review and has some chance of
         succeeding. See Smith [v. Pennsylvania Bd. of Prob.
         & Parole, 574 A.2d 558, 564 (Pa. 1990)] (“By filing an
         Anders brief, a lawyer does not advocate arguments he
         believes are ‘wholly frivolous’; rather, he presents them for
         the court’s confirmation of his belief.”).

Id. at 359–60 (some citations omitted).

      “When faced with a purported Anders brief, this Court may not review

the merits of any possible underlying issues without first examining

counsel’s request to withdraw.”    Commonwealth v. Wimbush, 951 A.2d

379, 382 (Pa. Super. 2008) (citation omitted).

         [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.

      Instantly, counsel’s application for leave to withdraw and appellate

brief comply with the technical requirements of Anders and Santiago. See

id.   The brief sets forth a plea issue, cites relevant legal authority, and

concludes the appeal is frivolous.    See id.    The record also establishes

Appellant was served a copy of the brief and application, which advised him




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of the right to retain new counsel, or proceed pro se and raise additional

issues to this Court. See id.

      Once the requirements attendant to counsel’s request to withdraw are

satisfied, a reviewing court will examine the proceedings and render an

independent judgment on whether the appeal is in fact wholly frivolous.

Wimbush, 951 A.2d at 382.

      The Anders brief raises the following issue for our review: whether

there was “manifest injustice associated with the ruling not to allow

Appellant to withdraw his guilty plea.” Appellant’s Brief at 8. Following his

review of the record, counsel concludes Appellant entered his guilty plea

knowingly, intelligently, and voluntarily. Id.

      In Commonwealth v. Muntz, 630 A.2d 51 (Pa. Super. 1993), this

court opined:

         A significant distinction exists between a pre-sentence
         request to withdraw a guilty plea and a post-sentence
         request to do so.

                  The standard for allowing withdrawal of a
            guilty plea prior to sentence was articulated in
            Commonwealth v. Forbes, [ ] 299 A.2d 268, 271
            ([Pa.] 1973) wherein we quoted with approval the
            following:

                  Before sentence, the court in its discretion may
            allow the defendant to withdraw his plea for any fair
            and just reason unless the prosecution has been
            substantially prejudiced by reliance upon the
            defendant's plea. Because the plea involves the
            simultaneous waiver of so many constitutional rights,
            a request to withdraw prior to sentencing is liberally
            allowed.


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                   When considering a petition to withdraw a
            guilty plea submitted to a trial court after
            sentencing, however, it is well-established that a
            showing of prejudice on the order of manifest
            injustice, is required before withdrawal is properly
            justified. Post-sentencing attempts to withdraw a
            guilty plea must sustain this more substantial burden
            because of the recognition that a plea withdrawal
            can be used as a sentence-testing device. If a plea
            of guilty could be retracted with ease after
            sentencing, the accused might be encouraged to
            plea[d] guilty to test the weight of potential
            punishment, and withdraw the plea if the sentence
            were unexpectedly severe.

Id. at 53 (quotation marks and some citations omitted).

      In Commonwealth v. Muhammad, 794 A.2d 378 (Pa. Super. 2002),

this court held that

         to establish manifest injustice, [the defendant] must show
         that his plea was entered in an involuntary, unknowing, or
         unintelligent manner.        To ascertain whether [the
         defendant] acted in such manner, we must examine the
         guilty plea colloquy. The colloquy must inquire into the
         following areas: (1) the nature of the charges; (2) the
         factual basis of the plea; (3) the right to trial by jury; (4)
         the presumption of innocence; (5) the permissible range of
         sentences; and (6) the judge’s authority to depart from
         any recommended sentence. This Court evaluates the
         adequacy of the guilty plea colloquy and the voluntariness
         of the resulting plea by examining the totality of the
         circumstances surrounding the entry of that plea.

Id. at 383–84 (quotation marks and citations omitted).

      In the case sub judice, the court conducted a guilty plea colloquy.

         The Court: Mr. Fields, I’ve been informed that you want
         your case today be resolved not by a trial but by means of
         an open plea of guilty. An open plea of guilty means that
         your attorney and the assistant district attorney have not


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         reached an understanding with respect to the sentence the
         D.A. will recommend, so your sentence will be left entirely
         to the [c]ourt.

            Is that your understanding?

         [Appellant]: Yes.

         The Court: In addition, because of the nature of the crimes
         in this case, once your guilty plea has been accepted you’ll
         be subject to have a Megan’s Law Examination done and a
         study on Megan’s Law.

         Do you understand that?

         [Appellant]: Yes.

N.T. Guilty Plea Hr’g, 4/19/05, at 2.      Appellant stated he was not under the

influence of drugs, alcohol, or medication.      Id. at 3.   He had never been

treated for a mental illness. Id. He understood he had the absolute right to

plead not guilty and to go to trial. Id.

         The Court: If you did go to trial, you would be presumed to
         be innocent. That means that the Commonwealth would
         have the burden of proving that you are guilty. Their
         burden is to prove that you are guilty beyond a reasonable
         doubt. A reasonable doubt is the kind of doubt that would
         cause a reasonable man or woman to pause or hesitate
         before doing something important in his or her own life
         such as making the decision to get married, buy a house,
         undergo serious medical treatment.

            Do you understand that?

         [Appellant]: Yes.

         The Court: If you did go to trial, you would not have to
         testify, nor would you have to call witnesses, nor would
         you have to present any evidence at all.




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             And if you chose not to testify, not to call witnesses, or
          not to present evidence, none of those decisions could be
          held against you.

              Do you understand that?

          [Appellant]: Yes.

          The Court: In addition, you would have the right to
          confront the witnesses against you if you went to trial.
          That means that the Commonwealth would have to put its
          witnesses on the witness stand.        You through your
          attorney would have the right to cross-examine those
          people in order to test whether they were telling the truth
          or not, but when you plead guilty, you give up the right to
          confront or cross-examine the witnesses against you.

              All that will happen is that the assistant district attorney
          will read a summary of the evidence from his file, and
          neither you nor your attorney will have the opportunity to
          question the people who gave the D.A. that information.

              Do you understand that?

          [Appellant]: Yes.

Id. at 3-5.

        The court explained that if Appellant went to trial he would have the

choice to be tried by a jury. Id. at 5. Ultimately, a jury of twelve people

would be selected. Id. at 8. The jury verdict as to guilt or innocence would

have to be unanimous or the court would declare a mistrial. Id. The court

explained to Appellant that he could be tried by a judge sitting without a

jury.    Id. at 9.   Appellant indicated in response to the court’s inquiry,

following each substantive explanation, that he understood what the judge

was telling him.



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      The court detailed the rights that Appellant was giving up by pleading

guilty, e.g., the right to file pretrial motions.        Id.   The judge informed

Appellant of the possible pretrial motions that could be filed. Id. at 10.

         The Court: When you plead guilty, your right to file an
         appeal is limited to three grounds. The first is that your
         guilty plea was not made voluntarily. So I’m going to ask
         you directly.

           Are you pleading guilty today voluntarily and of your
         own free will?

         [Appellant]: Yes.

         The Court: Has anyone threatened you or forced you in
         any way to make you plead guilty?

         [Appellant]: No.

         The Court: Has anyone promised you any benefit that
         would cause or induce you to plead guilty?

         [Appellant]: No.

         The Court: Have you discussed with [counsel] this
         important decision, that is, whether to plead guilty or not
         guilty in this case?

         [Appellant]: Yes.

         The Court: Are         you   satisfied   with   his   advice   and
         representation?

         [Appellant]: Yes.

         The Court: [Counsel], have you discussed with your client
         his right to plead not guilty and go to trial?

         [Counsel]: Yes, sir.

         The Court: Did he seem to you to understand his rights?



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        [Counsel]: Yes, Your honor.

        The Court: Are you satisfied that he is competent and
        qualified to enter into this open plea of guilty?

        [Counsel]: Yes, sir.

        The Court: Thank you.

           [B]ased on your answers and those of your attorney, I
        am satisfied that your guilty plea is offered on a voluntary
        basis; therefore, I believe if you filed an appeal and
        claimed that your plea today was not made voluntarily,
        your appeal would not succeed.

           Do you understand that?

        [Appellant]: Yes.

Id. at 10-12.   The trial court indicated two other grounds for an appeal

following a guilty plea, viz., jurisdiction of the court and legality of the

sentence. Id. at 12-13.

        The Court: When you plead guilty, you give up the right to
        present to the [c]ourt any evidence you have that relates
        to excuse, justification, or defense for the conduct that
        caused you to be arrested.

           Do you understand that?

        [Appellant]: Yes.

        The Court: Are you presently on parole or probation in any
        other case?

        [Appellant]: No.

        The Court: If you were, a guilty plea might place you in
        violation.

           Do you understand that?



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         [Appellant]: Yes.

         The Court: And finally, I will inform you that if you are not
         a citizen of the United States, by pleading guilty you might
         subject yourself to deportation proceedings.

            Do you understand that?

         [Appellant]: Yes.

Id. at 14-15. The court directed the assistant district attorney to explain the

charges and the maximum possible sentences that the court could impose.

Id. at 15-24.     The assistant district attorney read a summary of the

evidence. See id. at 26-37. Appellant stated that the facts as presented by

the assistant district attorney were true. Id. at 37-38. The court accepted

Appellant’s guilty plea. Id. at 38.

      Appellant cannot show prejudice on the order of manifest injustice,

which is required to justify the withdrawal of a guilty plea after sentencing.

See Muhammad, 794 A.2d at 383-84; Muntz, 630 A.2d at 53.

      Our independent review of the record reveals no other issues of

arguable merit.   See Wimbush, 951 A.2d at 382.         Accordingly, we grant

counsel’s petition for leave to withdraw and affirm the judgment of sentence.

      Counsel’s petition for leave to withdraw granted.          Judgment of

sentence affirmed.

      President Judge Emeritus Bender joins the Memorandum.

      Judge Olson Concurs in the Result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/19/2016




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