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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                            Appellee

                       v.

ANTHONY FARACE

                            Appellant                      No. 1699 WDA 2016


          Appeal from the Judgment of Sentence Dated May 23, 2016
             In the Court of Common Pleas of Washington County
             Criminal Division at No(s): CP-63-CR-0002632-2014

BEFORE: STABILE, J., SOLANO, J., and FITZGERALD, J.*

MEMORANDUM BY SOLANO, J.:                                FILED OCTOBER 24, 2017

        Appellant Anthony Farace appeals from the judgment of sentence of

16-32 months’ incarceration, which was imposed after he pleaded nolo

contendere     to   manufacture,       delivery,   or   possession   with   intent   to

manufacture or deliver a controlled substance, and to receiving stolen

property.1     With this appeal, Appellant’s counsel has filed a petition to

withdraw and an Anders2 brief, stating that the appeal is wholly frivolous.

After careful review, we affirm that the Washington County Court of

Common Pleas had jurisdiction and was the proper venue to dispose of

Appellant’s case.       Otherwise, we deny Appellant’s counsel’s petition to
____________________________________________
*
    Former Justice specially assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30) and 18 Pa.C.S. § 3925(a), respectively.
2
    Anders v. California, 386 U.S. 738 (1967).
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withdraw and order Appellant’s counsel to submit an advocate’s brief or a

new Anders brief within thirty days of the date of this memorandum. The

Commonwealth may file a brief within thirty days after service of the brief

from Appellant’s counsel.3

       In September 2014, Susan McCartan, a resident of Union Township,

Washington County, was informed by her neighbor that people were living in

her vacant trailer.       Aff. of Probable Cause, 9/11/14, at 1. 4    When Ms.

McCartan went to the trailer to investigate, she observed that someone had

been inside it and that items were missing, including precious coins —

“specifically Kennedy Fifty Cent Pieces, Pennsylvania State Quarters,

Complete State Quarter Sets, Wheat Pennies, one Silver Penny, twenty

‘60/40’ quarters made of 60% silver, two 1932 silver dollars and one fire

resistant box containing paperwork.” Id. at 1-2. Ms. McCartan called the

Southwest Regional Police Department. When they arrived at the trailer, a

police officer observed two males in an adjacent property, one of whom was

later identified as Appellant.       The other male, later identified as Brendan

Hensler, was driving his wife’s silver-colored Jeep Compass “and was in the
____________________________________________
3
   If the Commonwealth does not intend to file a brief in response, we
request that the Commonwealth send a letter to this Court’s Prothonotary
informing this Court of that decision as soon as possible.
4
  During Appellant’s plea hearing, he acknowledged that the facts contained
within the Affidavit of Probable Cause “can support those charges” to which
he pleaded nolo contendere. N.T., 1/20/16, at 7. We thus rely on the facts
alleged in that affidavit, as the trial court did not write an opinion pursuant
to Pa.R.A.P. 1925(a).


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process of leaving upon seeing [police arrive].”     Id. at 2.    When police

questioned Appellant, he “became agitated and verbally aggressive.”         Id.

Appellant was arrested for disorderly conduct.

      After his arrest, Appellant was found in possession of six oxycodone

pills. Aff. of Probable Cause, 9/11/14, at 3; N.T. Sentencing Hr’g, 5/23/16,

at 23, 26-28; Order, 10/14/16, at 3. Appellant then informed police that he

had an additional twenty-nine oxycodone pills and $36,000 in cash at his

residence in Finleyville, Washington County. He told officers, “I’m not a drug

dealer; I just sell pills for money.” Aff. of Probable Cause, 9/11/14, at 3.

He explained that he was going to use the currency to buy a condominium,

but he did not produce a bank statement or other documents to corroborate

that claim.   N.T., 5/23/16, at 23, 25.    Police found coins in Appellant’s

possession that had been reported stolen from Ms. McCartan’s trailer. Id. at

24.

      On January 20, 2016, while represented by counsel, Appellant entered

an open plea.    Order, 10/14/16, at 1.   Question 39 of Appellant’s written

plea colloquy stated:

      Your plea must be voluntary and your rights must be voluntarily,
      knowingly and intelligently waived. If anyone has promised you
      anything other than the terms of a plea bargain, your plea will
      be rejected. If anyone has forced you or attempted to force you
      in any way to plead guilty or nolo contendere, your pleas will be
      rejected. Do you fully understand this?

Written Colloquy, 1/20/16, at 7. Appellant answered, “No.” Id. Question

40 stated:    “Has anybody forced you to enter this plea?”       Id.   Appellant

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answered, “Yes.” Id.    Question 41 asked, “Are you doing this of your own

free will?” Id. Appellant answered, “Yes.” To Question 50 of the written

colloquy, which asked if he was “presently taking any medication which

might affect your thinking or your free will”, Appellant answered, “No.” Id.

Question 51 asked: “Have you had any narcotics or alcohol in the last 48

hours?” Id. Appellant answered, “Yes.” Id.

     The trial court conducted the following oral colloquy of Appellant

pursuant to Pa.R.Crim.P. 590:

     The [trial] court: . . . Sir, you’re entering into a plea. Are you
     doing this voluntarily?

     [Appellant]:       I really didn’t do nothing. I mean, I was
     coerced into it, I was coerced into something and I’m getting the
     blame for it, which I didn’t do nothing, but—I don’t understand,
     you know, I really—

     The [trial] court: Well, what I mean, sir, is did anyone tell you
     that you have to enter this plea today?

     [Appellant]:     It seems like I’m being forced into it for some
     reason, but I’m not sure. You know, I’m—to be honest with you,
     I—

     The [trial] court: Well, if you think you are being forced into
     this, I cannot accept your open plea.

     [Appellant]:      Right. Right.

     The [trial[ court: This is something you have to do voluntarily.

     [Appellant]:      Right.

     ...




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      The [trial] court:   [A]fter [counsel] provides that advice to
      you, did you make your own independent decision to enter this
      open plea?

      [Appellant]:      Yes.

N.T. Plea Hr’g, 1/20/16, at 13-14. When asked if he was doing so “out of

[his] own freewill,” Appellant again answered affirmatively.     Id. at 14.

Appellant also acknowledged that he had completed the written colloquy

prior to his hearing. Id. at 15-17.

      The trial court sentenced Appellant on May 23, 2016. On the charge of

possessing a controlled substance with intent to deliver it, the court

sentenced Appellant to confinement for a period of sixteen to thirty-two

months in a State Correctional Institution. On the charge of receiving stolen

property, the court sentenced Appellant to confinement for two to four

months, with that sentence to run concurrently with the sentence on the

drug charge. Order, 10/14/16, at 1.

      On June 1, 2016, while still represented by counsel, Appellant filed a

pro se motion for a new trial and a pro se notice of appeal. According to a

handwritten notation on the back of the certificate of service accompanying

the pro se motion for a new trial, the motion for a new trial was served only

on the trial court and Washington County District Attorney’s Office.      On




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June 2, 2016, the trial court denied Appellant’s pro se motion for a new

trial.5

          On June 2, 2016, Appellant’s counsel filed a motion for post-sentence

relief that challenged the discretionary aspects of Appellant’s sentence and,

in the alternative, asked the trial court to permit Appellant to withdraw his

plea.     The trial court did not rule on Appellant’s motion for post-sentence

relief due to the pending appeal.

          On June 10, 2016, the trial court granted counsel’s motion to

withdraw.      The court appointed the Washington County Public Defender to

represent Appellant in his appeal.             New counsel then discontinued that

appeal. On October 14, 2016, the trial court denied Appellant’s motion for

post-sentence relief, including his alternative request to withdraw his plea.

On November 3, 2016, Appellant filed a second notice of appeal to this

Court.

          Appellant’s counsel has now filed an Anders brief and petition to

withdraw.6       “When presented with an Anders brief, this Court may not

____________________________________________
5
 There is no indication in the certified record that the trial court forwarded
Appellant’s pro se motion for a new trial to his counsel. Pa.R.Crim.P.
576(a)(4). The trial court should not have ruled on the pro se motion
because Appellant was represented by counsel. Commonwealth v. Jette,
23 A.3d 1032, 1041 (Pa. 2011).
6
  On February 17, 2017, Appellant’s counsel filed his Anders brief. On
February 22, 2017, Appellant’s counsel filed his petition to withdraw as
counsel. On March 16, 2017, this Court denied the petition for failure to
notify Appellant of his appellate rights and to attach a copy of a notification
(Footnote Continued Next Page)

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review the merits of the underlying issues without first passing on the

request to withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa.

Super. 2010) (internal citation omitted). An Anders brief shall comply with

the requirements set forth by the Supreme Court of Pennsylvania in

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

      [W]e hold that in 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.

Id. at 361. Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa.

Super. 2005), and its progeny, counsel seeking to withdraw on direct appeal

must also meet the following obligations to his or her client:

      Counsel must also 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 the
      Anders brief.

Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (internal

quotation marks and citation omitted). Finally, “this Court must conduct an
                       _______________________
(Footnote Continued)
letter to his motion to withdraw pursuant to Commonwealth v. Millisock,
873 A.2d 748, 752 (Pa. Super. 2005). This Court also struck the Anders
brief. On March 17, 2017, Appellant’s counsel filed a new Anders brief and
petition to withdraw as counsel. Appellant has not filed a pro se response to
either petition to withdraw.


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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) (footnotes and citations omitted).

      In this appeal, we observe that Appellant’s counsel’s March 17, 2017,

correspondence to Appellant provided a copy of the Anders Brief to

Appellant and advised Appellant of his right either to retain new counsel or

to proceed pro se on appeal to raise any points he deems worthy of the

court’s attention.   Further, counsel’s Anders Brief, at 8-11, complies with

prevailing law in that counsel has provided a procedural and factual

summary of the case with references to the record.           Appellant’s counsel

believes there is nothing in the record that arguably supports the appeal.

Id. at 14. Appellant’s counsel concludes that he “cannot identify an issue on

appeal that has merit and is not wholly frivolous.”          Id. at 19.     Thus,

Appellant’s counsel has complied with the requirements of Santiago and

Orellana.    We therefore proceed to conduct an independent review to

ascertain whether the appeal is indeed wholly frivolous.

      We glean from the Anders brief that counsel has raised the following

issues: (1) the jurisdiction of the trial court, (2) the denial of Appellant’s pro

se motions to withdraw his plea and for a new trial, (3) the legality of




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Appellant’s sentence, and (4) the discretionary aspects of the sentence.

Anders Brief at 13, 15-16, 18.7

                                      Jurisdiction

        Subject    matter     jurisdiction     is   purely   a   question   of   law.

Commonwealth v. Jones, 929 A.2d 205, 211 (Pa. 2007). “Our standard of

review is de novo, and our scope of review is plenary.”                Id. (citation

omitted).

        Controversies arising out of violations of the Crimes Code are
        entrusted to the original jurisdiction of the courts of common
        pleas for resolution. See 18 Pa.C.S. § 102. Every jurist within
        that tier of the unified judicial system is competent to hear and
        decide a matter arising out of the Crimes Code.

Commonwealth v. Bethea, 828 A.2d 1066, 1074 (Pa. 2003), cert.

denied, 540 U.S. 1118 (2004). Here, Appellant was charged with violations

of the Crimes Code, and, thus, the Court of Common Pleas had jurisdiction

to hear his case.

        Additionally, according to the affidavit of probable cause, the charges

against Appellant stem from incidents in Union Township and in Finleyville,
____________________________________________
7
    The Commonwealth’s argument to this Court in its entirety is as follows:

        Appellant’s counsel filed a no-merit letter, Anders Brief and
        Motion to withdrawal as counsel. For the reasons set forth in
        Appellant’s Counsel’s no-merit letter, and the Court of Common
        Pleas’ October 14th, 2016 Order, the Commonwealth avers that
        Appellant cannot plead or prove any of the grounds for relief and
        the lower Court[’]s decision should be affirmed.

Commonwealth’s Brief at 5 (some formatting altered).



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both located in Washington County, Pennsylvania.             Aff. of Probable Cause,

9/11/14, at 1, 3. Thus, the Washington County Court of Common Pleas had

jurisdiction and was the proper venue to dispose of Appellant’s case, and the

trial court did not commit an error of law by hearing this case.

                                 Remaining Issues

        Before addressing the remaining issues raised in counsel’s Anders

brief, we have identified, as set forth above, inconsistent responses in

Appellant’s plea colloquy that call into question whether his plea was made

knowingly,     voluntarily,    and   intelligently.    See     Commonwealth        v.

Muhammad, 794 A.2d 378, 383 (Pa. Super. 2002) (“A plea rises to the

level   of   manifest   injustice    when   it   was   entered   into   involuntarily,

unknowingly, or unintelligently”); see also Flowers, 113 A.3d at 1250

(“this Court must conduct an independent review of the record to discern if

there are any additional, non-frivolous issues overlooked by counsel”).

        As noted above, Appellant’s written plea colloquy stated that he did

not understand that:          his plea must be voluntary; his rights must be

voluntarily, knowingly, and intelligently waived; and his plea will be rejected

if anyone had promised him anything other than the terms of a plea bargain

or forced him or attempted to force him in any way to plead nolo

contendere. Written Colloquy, 1/20/16, at 7 ¶ 39. Appellant’s written plea

colloquy also stated that he had been forced into entering the plea and had

taken narcotics or imbibed alcohol in the previous 48 hours. Id. at ¶¶ 40,


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51. Additionally, Appellant provided replies on his written plea colloquy that

conflicted with these troubling answers, including that he was pleading of his

own free will, that no threats had been made against him, and that he was

not taking any medication that might affect his thinking or free will. Id. at

¶¶ 41-42, 50. Appellant gave similar contradictory responses during his oral

plea colloquy, stating that he had made his own independent decision to

enter an open plea and was doing so out of his own free will. N.T., 1/20/16,

at 13-14.

      Because we perceive a potential non-frivolous issue as to whether

Appellant’s guilty plea was knowingly, voluntarily, and intelligently made,

see Muhammad, 794 A.2d at 383, we deny counsel’s petition to withdraw

and order counsel to submit either an advocate’s brief or a new Anders brief

within thirty days of the date of this memorandum. Counsel may raise any

other non-frivolous issues he has identified. The Commonwealth may file a

brief within thirty days of service of the brief from Appellant’s counsel. In

light of this disposition, we do not reach the other issues identified by

Appellant’s counsel.

      Petition to withdraw denied.     Anders brief stricken.      Appellant’s

counsel ordered to file an advocate’s brief or a new Anders brief within

thirty days of the date of this memorandum. The Commonwealth may file a

brief within thirty days of Appellant’s counsel’s brief.    Panel jurisdiction

retained.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/24/2017




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