J-S54008-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    AGNES ELAINE DINKINS                       :
                                               :
                      Appellant                :   No. 1375 WDA 2016

             Appeal from the Judgment of Sentence March 23, 2016
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0006551-2015


BEFORE:      OTT, J., MOULTON, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                                FILED OCTOBER 06, 2017

        Agnes Elaine Dinkins appeals from the judgment of sentence imposed

March 23, 2016, in the Allegheny County Court of Common Pleas. The trial

court sentenced Dinkins to a term of three months’ probation, and $170.00

in restitution, following her guilty plea to one count of criminal mischief. 1

Contemporaneous with this appeal, Dinkins’s counsel has filed a petition to

withdraw from representation and an Anders brief.               See Anders v.

California, 386 U.S. 738 (1967); Commonwealth v. McClendon, 434

A.2d 1185 (Pa. 1981). The Anders brief addresses two issues, one alleging

Dinkins’s plea was involuntarily entered, and the second, asserting prior


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*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 3304(a)(2).
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counsel’s ineffectiveness. For the reasons below, we affirm the judgment of

sentence and grant counsel’s petition to withdraw.

       As noted above, on March 23, 2016, Dinkins entered a guilty plea to

one count of summary criminal mischief in exchange for which the

Commonwealth withdrew charges of receiving stolen property, unauthorized

use of a vehicle, and driving under suspension.2       That same day, the trial

court sentenced Dinkins to a term of three months’ probation and directed

her to pay restitution in the amount of $170.00.           On March 28, 2016,

Dinkins filed a timely post-sentence motion seeking to withdraw her guilty

plea. She averred her plea was involuntarily entered, and counsel rendered

ineffective assistance, because counsel “did not thoroughly go over the plea

agreement with her.”         Motion to Withdraw Guilty Plea, 3/28/2016, at 2.

Counsel also requested permission to withdraw in light of Dinkins’s claim.

See id. On August 17, 2016, the motion was denied by operation of law.

       Dinkins filed a timely notice of appeal. On September 20, 2016, the

trial court ordered her to file a concise statement of errors complained of on

appeal. After requesting two extensions of time, Dinkins complied with the

court’s directive on December 27, 2016.          That same day, counsel filed a


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2
  See 18 Pa.C.S. §§ 3925 and 3928, and 75 Pa.C.S. § 1543, respectively.
Dinkins was arrested after she was found in possession of the keys to a
stolen vehicle, which was parked in front of her house. See Criminal
Complaint, 4/16/2015, Probable Cause Affidavit, at 2-3.




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formal motion to withdraw based upon Dinkins’s ineffectiveness claims.

Counsel also argued, for the first time, that Dinkins should be permitted to

raise her ineffectiveness claims on direct appeal due to the short length of

her sentence, and attached a waiver of Post Conviction Relief Act (“PCRA”)3

rights, signed by Dinkins on November 10, 2016.            However, at that time,

Dinkins’s waiver was ineffective since, as a result of her appeal, the trial

court no longer had jurisdiction to proceed in the matter.         See Pa.R.A.P.

1701(a).      Thereafter, the trial court granted counsel’s motion to withdraw

on January 10, 2017, and appointed appellate counsel.           The court did not

address Dinkins’s attempted PCRA waiver. Appellate counsel subsequently

filed the present petition to withdraw and accompanying Anders brief.

       When counsel files a petition to withdraw and accompanying Anders

brief, we must first examine the request to withdraw before addressing any

of the substantive issues raised on appeal.         Commonwealth v. Bennett,

124 A.3d 327, 330 (Pa. Super. 2015).             Our review of the record reveals

counsel has complied with the requirements for withdrawal outlined in

Anders, supra, and its progeny. Notably, counsel completed the following:

(1) he filed a petition for leave to withdraw, in which he states his belief that

the appeal is wholly frivolous; (2) he filed an Anders brief pursuant to the

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


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3
    See 42 Pa.C.S. §§ 9541-9546.



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(3) he furnished a copy of the Anders brief to Dinkins; and (4) he advised

Dinkins of her right to retain new counsel or proceed pro se.              See

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en

banc).   Moreover, we have received no correspondence from Dinkins

supplementing the Anders brief.

      Therefore, we proceed “to make a full examination of the proceedings

and make an independent judgment to decide whether the appeal is in fact

wholly frivolous.” Commonwealth v. Flowers, 113 A.3d 1246, 1248 (Pa.

Super. 2015) (quotations and citation omitted). In so doing, we review not

only the issues identified by appointed counsel in the Anders brief, but

examine all of the proceedings to “make certain that appointed counsel has

not overlooked the existence of potentially non-frivolous issues.” Id. at 1249

(footnote omitted).

      The first issue identified in the Anders brief is Dinkins’s claim that her

plea was involuntarily entered because plea counsel “failed to thoroughly

and adequately review the plea agreement with her.” Anders Brief at 14.

      When a defendant enters a guilty plea, she waives the right to

challenge on appeal “all non-jurisdictional defects except the legality of the

sentence and the validity of the plea.”     Commonwealth v. Lincoln, 72

A.3d 606, 609 (Pa. Super. 2013), appeal denied, 87 A.3d 319 (Pa. 2014).

Furthermore, when a defendant seeks to withdraw a plea after sentencing,

she must demonstrate “prejudice on the order of manifest injustice before

withdrawal is justified.” Commonwealth v. Yeomans, 24 A.3d 1044, 1046

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(Pa. Super. 2011) (citation omitted). “A plea rises to the level of manifest

injustice    when    it    was   entered      into   involuntarily,   unknowingly,   or

unintelligently.” Commonwealth v. Stork, 737 A.2d 789, 790 (Pa. Super.

1999), appeal denied, 764 A.2d 1068 (Pa. 2000).

      However, “[o]ur law presumes that a defendant who enters a guilty

plea was aware of what [she] was doing [and she] bears the burden of

proving otherwise.”        Commonwealth v. Rush, 909 A.2d 805, 808 (Pa.

Super. 2006) (citation omitted).              Indeed, “[w]here the record clearly

demonstrates that a guilty plea colloquy was conducted, during which it

became evident that the defendant understood the nature of the charges

against [her], the voluntariness of the plea is established.” Stork, supra,

737   A.2d    at    790    (citation   and    internal   quotation    marks   omitted).

Furthermore, it is well-settled that a defendant who enters a guilty plea “is

bound by the statements [she] makes in open court while under oath and

[she] may not later assert grounds for withdrawing the plea which contradict

the statements [she] made at [her] plea colloquy.”                Commonwealth v.

Pollard, 832 A.2d 517, 523 (Pa. Super. 2003) (citation omitted).

      Our review of the transcript from the plea colloquy belies Dinkins’s

claim on appeal.          Indeed, Dinkins acknowledged she had (1) read and

answered the 68 questions in her written “guilty plea explanation of [] rights

form;” (2) answered the questions honestly; and (3) read “the entire

document and [understood] its full meaning[.]” N.T., 3/23/2016, at 5-6. In




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the written explanation of rights form, which she signed and dated that

same day, Dinkins also provided the following pertinent responses:

       61. Are you satisfied with the legal         advice   and   legal
       representation of your attorney? Yes

       62. Have you had ample opportunity to consult with your
       attorney before entering your plea, and are you satisfied that
       your attorney knows all of the facts of your case and has had
       enough time within which to check any questions of fact or law
       which either you or your attorney may have about the case? Yes

       63. Has your attorney gone over with you the meaning of the
       terms of this document? Yes

Guilty Plea Explanation of Defendant’s Rights, 3/23/2016, at 10.           Later,

during the oral plea colloquy, Dinkins again stated she was “satisfied with

the services that [her attorney] provided.” N.T., 3/23/2016, at 6. Dinkins is

bound by the statements she made under oath, and, accordingly, has failed

to demonstrate her plea was involuntarily entered. Therefore, we agree that

the first issue warrants no relief.4

       The second issue identified in the Anders brief asserts the ineffective

assistance of prior counsel for failing to ensure the preliminary hearing was

recorded.    The Anders brief maintains counsel’s omission “resulted in the

complete loss of testimony vital to [Dinkins’s] defense.” Anders Brief at 18.

The trial court concluded, however, that this claim is premature, and must
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4
  To the extent Dinkins frames her claim as one invoking the ineffective
assistance of counsel – i.e., counsel’s ineffectiveness caused her to enter an
involuntary plea – as we will explain infra, such a claim is unavailable on
direct appeal.




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be considered on collateral review. See Trial Court Opinion, 4/5/2017, at 3.

We agree.

     In Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), the

Pennsylvania Supreme Court reaffirmed its holding in Commonwealth v.

Grant, 813 A.2d 726 (Pa. 2002), that absent certain limited circumstances,

“claims of ineffective assistance of counsel are to be deferred to PCRA

review; trial courts should not entertain claims of ineffectiveness upon post-

verdict motions; and such claims should not be reviewed upon direct

appeal.”   Holmes, supra, 79 A.3d at 576. The Holmes Court delineated

two narrow exceptions to this general rule: (1) in “an extraordinary case

where the trial court, in the exercise of its discretion, determines that a

claim (or claims) of ineffectiveness is both meritorious and apparent from

the record so that immediate consideration and relief is warranted[;]” or (2)

(2) where the trial court “in its discretion, and for good cause shown,

permit[s] post-verdict review of multiple, and indeed comprehensive,

ineffectiveness claims if such review is accompanied by a waiver of PCRA

rights[.]” Id. at 577, 578 (footnote omitted). Further, we emphasize that

as “specifically indicated in Holmes, it is within the purview of the trial

court’s discretion to determine whether review at the post-verdict stage of

the ineffectiveness claims is appropriate.”   Commonwealth v. Burno, 94

A.3d 956, 971 (Pa. 2014).

     Here, Dinkins’s ineffectiveness claim does not meet either exception to

the Grant rule. First, the trial court did not conclude that Dinkins’s claim

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was either “meritorious” or “apparent from the record.” Holmes, supra, 79

A.3d at 577. Second, as noted supra, Dinkins did not waive her PCRA rights

at a time when the trial court still had jurisdiction.         See supra at 3.

Therefore, we detect no abuse of discretion on the part of the trial court in

concluding that Dinkins’s ineffectiveness claims are “premature, and should

have been raised under the Post-Conviction Relief Act.” Trial Court Opinion,

4/5/2017, at 3. Accordingly, the second claim identified in the Anders brief

also fails.5

       Therefore, we agree with counsel’s assessment that the issues

identified in the Anders brief are frivolous. Moreover, we have conducted “a

full examination of the proceedings” and conclude that “the appeal is in fact

wholly frivolous.” Flowers, supra, 113 A.3d at 1248.

       Judgment of sentence affirmed.            Petition to withdraw as counsel

granted.

Judgment Entered.




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5
 We recognize that Dinkins has completed serving her short sentence and is
no longer eligible for PCRA relief.      See 42 Pa.C.S. § 9543(a)(1)(i).
Nevertheless, the Supreme Court has explained that while one of the
purposes of the Grant exceptions was to benefit those defendants serving
short sentences, those claims were still subject to the “constraints and
consequences” outlined in Holmes. Commonwealth v. Turner, 80 A.3d
754, 763 n.7 (Pa. 2013), cert. denied, 134 S.Ct. 1771 (U.S. 2014).




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Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/6/2017




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