J-S71022-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MICHAEL T. MIDGLEY

                            Appellant                  No. 874 MDA 2014


             Appeal from the Judgment of Sentence March 19, 2013
              In the Court of Common Pleas of Lackawanna County
               Criminal Division at No(s): CP-35-CR-0001742-2012
                                           CP-35-CR-0001749-2012
                                           CP-35-CR-0002920-2010


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J.                          FILED JANUARY 16, 2015

        Appellant, Michael T. Midgley, appeals from the judgment of sentence

entered March 19, 2013, by the Honorable Vito P. Geroulo, Court of

Common Pleas of Lackawanna County.              Additionally, Midgley’s court-

appointed counsel, Kurt Thomas Lynott, Esquire, has filed an application to

withdraw as counsel 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 Midgley’s judgment of sentence and grant counsel’s

petition to withdraw.



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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       We distill the essence of this procedurally complex case as follows. On

December 10, 2010, Midgley entered a guilty plea at docket number CP-35-

CR-0002920-2010 to one count of receiving stolen property. On March 9,

2011, the trial court sentenced Midgley to three to twenty-three months’

incarceration and ordered restitution for $500.00.       On June 30, 2011,

Midgley filed an untimely motion for reconsideration of sentence. That same

day, the trial court modified Midgley’s sentence permitting him to serve his

minimum sentence under house arrest.

       On November 31, 2012, Midgley entered a guilty plea at docket

number CP-35-CR-0001742-2012 to one count of aggravated assault.           At

docket number CP-CR-0001749-2012, Midgley entered a plea of nolo

contendere to simple assault. On March 19, 2013, the trial court conducted

a sentencing hearing.1 At number 2920 of 2010, the trial court revoked the

parole granted for receiving stolen property, and resentenced Midgley to

serve three to twenty-three months’ imprisonment, without credit for time

served.     At number 1742 of 2012, aggravated assault, the trial court

sentenced Midgley to nine to twenty-four months’ imprisonment. At number

1749 of 2012, simple assault, the trial court sentenced Midgley to six to

twenty-four months’ imprisonment. The court ordered that all sentences be


____________________________________________


1
 Prior to sentencing on March 5, 2013, Midgley filed a Motion to Withdraw
Guilty Plea. This motion was withdrawn at the sentencing hearing. See
N.T., Sentencing, 3/19/13 at 5.



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served consecutively, for an aggregate term of 18 to 71 months’

imprisonment.

     Prior to sentencing, on December 12, 2012, Midgley filed a pro se

PCRA petition at number 2920 of 2010, and the PCRA court appointed Kurt

Lynott, Esquire, as counsel. Following sentencing, on May 8, 2013, Midgley

filed another PCRA petition at number 2920 of 2010 and numbers 1742 and

1749 of 2012. A third pro se PCRA petition encompassing all three docket

numbers was filed on August 22, 2013. That same day, Attorney Lynott was

appointed to represent Midgley regarding the PCRA petition.      On April 22,

2014, the PCRA court granted Midgley’s petition in part and reinstated his

direct appeal rights nunc pro tunc at number 2920 of 2010 and numbers

1742 and 1749 of 2012. This nunc pro tunc appeal followed.

     Preliminarily, we note that Attorney Lynott has requested to withdraw

and has submitted an Anders brief in support thereof contending that

Midgley’s appeal is frivolous.     The Pennsylvania Supreme Court has

articulated the procedure to be followed when court-appointed counsel seeks

to withdraw from representing an appellant on direct appeal:

        [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 arguably believes 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.


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Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

      We note that Attorney Lynott has substantially complied with all of the

requirements of Anders as articulated in Santiago, although he has failed

to cite to the relevant portions of the record. Additionally, Attorney Lynott

confirms that he sent a copy of the Anders brief to Midgley as well as a

letter explaining to Midgley that he has the right to proceed pro se or the

right to retain new counsel.    A copy of the letter is appended to Attorney

Lynott’s petition, as required by this Court’s decision in Commonwealth v.

Millisock, 873 A.2d 748 (Pa. Super. 2005), in which we held that “to

facilitate appellate review, … counsel must attach as an exhibit to the

petition to withdraw filed with this Court a copy of the letter sent to

counsel’s client giving notice of the client’s rights.” Id., at 749 (emphasis in

original).

      On November 12, 2014, Midgley filed a pro se brief in response to

Attorney Lynott’s petition. We will address Midgley’s response in turn. We

now proceed to examine the issue counsel sets forth in the Anders brief:

      Was the [t]rial [c]ounsel ineffective for allowing [Midgley] to
      enter an unlawful plea of guilty?

Anders Brief at 4.

      It is axiomatic that, "a petitioner should wait to raise claims of

ineffective   assistance   of   trial    counsel   until   collateral   review."

Commonwealth v. Grant, 572 Pa. 48, 67, 813 A.2d 726, 738 (2002). In

Commonwealth v. Barnett, 25 A.3d 371 (Pa. Super. 2011), an en banc


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panel of this court concluded that we “cannot engage in review of ineffective

assistance of counsel claims on direct appeal absent an ‘express, knowing

and voluntary waiver of PCRA review.’” Id., at 377 (citing Commonwealth

v. Liston, 977 A.2d 1089, 1096 (Pa. 2009) (Castille, C.J., concurring)).

Here, Midgley has failed to include “an express, knowing and voluntary

waiver of PCRA review.” Id. Therefore, we find the issue of ineffectiveness

of trial counsel is not properly before this Court at this time.

       To the extent that this issue can be construed as a challenge to the

voluntariness of Midgley’s guilty plea, this claim is without merit. 2      In

assessing the voluntariness of a guilty plea, we note that “[t]he law does not

require that appellant be pleased with the outcome of his decision to enter a

plea of guilty: ‘All that is required is that [appellant’s] decision to plead
____________________________________________


2
  We examine the voluntariness of Midgley’s plea only as it pertains to the
pleas entered at numbers 1742 and 1749 of 2012. Midgley additionally
purports to challenge his guilty plea to receiving stolen property entered at
2920 of 2010, on the basis that an incorrect calculation of the restitution
amount, to which Midgley did not object, rendered his guilty plea
involuntary. We note that the judgment of sentence entered at that docket
number on March 19, 2013, was imposed following the revocation of
Midgley’s parole. Our scope of review in an appeal following a sentence
imposed following revocation of parole or probation is limited to the validity
of the revocation proceedings, the legality of the sentence and challenges to
the discretionary aspects of the sentence imposed following revocation. See
Commonwealth v. Williams, 69 A.3d 735, 740 n.5 (Pa. Super. 2013),
appeal denied, 83 A.3d 415 (Pa. 2014). Thus, Midgley may not challenge
his guilty plea to the underlying charge at this stage in the proceedings.

       So far as Midgley argues in his response that counsel was ineffective in
failing to challenge the restitution amount, this claim must await collateral
review. See Barnett, supra.



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guilty be knowingly, voluntarily and intelligently made.’”    Commonwealth

v. Yager, 685 A.2d 1000, 1004 (Pa. Super. 1996) (en banc) (quotation

omitted).

       With regard to the voluntariness of a plea, a guilty plea colloquy
       must affirmatively demonstrate the defendant understood what
       the plea connoted and its consequences. Once the defendant has
       entered a guilty plea, it is presumed that he was aware of what
       he was doing, and the burden of proving involuntariness is upon
       him. Competence to plead guilty requires a finding that the
       defendant comprehends the crime for which he stands accused,
       is able to cooperate with his counsel in forming a rational
       defense, and has a rational and factual understanding of the
       proceedings against him.

Commonwealth v. Willis, 68 A.3d 997, 1002 (Pa. Super. 2013) (internal

quotes and citations omitted).

       Instantly, the trial court engaged in a lengthy guilty plea colloquy,

during which Midgley indicated that he had voluntarily filled out and signed

the written guilty plea form with the assistance of his attorney. See N.T.,

Guilty Plea Hearing, 11/31/12 at 2-3.            Midgley acknowledged that his

answers on the form were true and correct, that he was satisfied with his

attorney, that he understood the nature of the crimes for which he was

charged, and that he was pleading guilty because he was guilty. See id. at

3-5.3 Significantly, Midgley attested at the guilty plea hearing that no one

had made any promises or threats in exchange for his plea. See id. at 4.

____________________________________________


3
 As noted, Midgley entered a guilty plea to the crime of aggravated assault,
and pled nolo contendere to simple assault. Thus, while he admitted that he
committed the crime of aggravated assault, he acknowledged only that there
(Footnote Continued Next Page)


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      In his response to counsel’s Anders brief, Midgley alleges that his trial

attorney used coercive tactics to scare him into taking the plea deal.

Midgley argues that more severe offenses were added to the criminal

complaint in order to force Midgley’s plea, and then later withdrawn. Aside

from these bald allegations, Midgley offers no evidence to support this claim.

More importantly, Midgley’s statement at the plea hearing that he had not

been forced into entering a plea flatly belies this claim. “Appellant is bound

by these statements, which he made in open court while under oath, and he

may not now asserts grounds for withdrawing the plea which contradict the

statements.” Willis, 68 A.3d at 1009 (citing Commonwealth v. Turetsky,

925 A.2d 876 (Pa. Super. 2007)).                 Accordingly, we find no evidence to

suggest that Midgley’s plea was involuntarily entered.

      Midgley raises two additional claims in his response. He first alleges

that the information used in the presentence investigation report (“PSI”) at

number 2920 of 2010 was false and defamatory.                Midgley does not detail

what information was false or defamatory, or in what manner he was

prejudiced by the PSI. This claim is waived for lack of development. See

Commonwealth v. Delvalle, 74 A.3d 1081, 1087 (Pa. Super. 2013)

(finding undeveloped claim to be waived).              Midgley lastly argues that the

trial court imposed an excessive sentence when it issued consecutive

                       _______________________
(Footnote Continued)

was enough evidence to support the charge of simple assault at trial. See
id. at 4.



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sentences.   Midgley did not preserve his discretionary sentencing claim at

sentencing   or   in    a    timely   motion      for   reconsideration   of   sentence.

Consequently, we are constrained to find that Midgley has waived his

challenge    to   the       discretionary    aspects     of   his   sentence.       See

Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005) (“Issues

challenging the discretionary aspects of a sentence must be raised in a post-

sentence motion or by presenting the claim to the trial court during the

sentencing proceedings. Absent such efforts, an objection to a discretionary

aspect of a sentence is waived.”).

      After examining the issues contained in the Anders brief, Midgley’s

reply brief and after undertaking our independent review of the record, we

concur with counsel’s assessment that the appeal is wholly frivolous.

      Judgment of sentence affirmed.              Permission to withdraw as counsel

granted. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/16/2015




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