J-S79042-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                 Appellee                 :
                                          :
                    v.                    :
                                          :
JEFFREY MCELWEE,                          :
                                          :
                 Appellant                : No. 2148 EDA 2014

         Appeal from the Judgment of Sentence Entered June 16, 2014,
              in the Court of Common Pleas of Delaware County,
             Criminal Division, at No(s): CP-23-CR-0002441-2014

BEFORE:      ALLEN, OLSON, and STRASSBURGER, JJ.*

MEMORANDUM BY: STRASSBURGER, J.:                 FILED JANUARY 13, 2015

        Jeffrey McElwee (Appellant) appeals from the judgment of sentence

imposed following his negotiated plea of guilty to one count of receiving

stolen property.1    In addition, Appellant’s counsel has filed a petition to

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

and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We affirm the

judgment of sentence and grant the petition to withdraw.

        On April 8, 2014, Appellant was arrested and charged with receiving

stolen property because he was in possession of a vehicle that had been

reported stolen.2   Appellant told the police officer that the vehicle was not



1
    18 Pa.C.S. § 3925(a).
2
 Specifically, the vehicle had been reported stolen from Covington, Virginia
where a warrant had been issued for Appellant’s arrest on a charge of
unauthorized use of a vehicle.

*Retired Senior Judge assigned to the Superior Court.
J-S79042-14


stolen, and he had paid $2,000 for it. Affidavit of Probable Cause, 4/9/2014.

On June 16, 2014, Appellant entered into a negotiated guilty plea to the

aforementioned charge in exchange for a sentence of time served to 23

months’ incarceration followed by three years of probation. The trial court

sentenced Appellant accordingly.

      Appellant timely filed a notice of appeal.     In response to the trial

court’s directive to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925, Appellant’s counsel filed a statement of intent to

file an Anders brief pursuant to Pa.R.A.P. 1925(c)(4).

      The following principles guide our review of this matter.

      Direct appeal counsel seeking to withdraw under Anders must
      file a petition averring that, after a conscientious examination of
      the record, counsel finds the appeal to be wholly frivolous.
      Counsel must also file an Anders brief setting forth issues that
      might arguably support the appeal along with any other issues
      necessary for the effective appellate presentation thereof….

             Anders counsel must also provide a copy of the Anders
      petition and brief to the appellant, advising the appellant of the
      right to retain new counsel, proceed pro se or raise any
      additional points worthy of this Court's attention.

             If counsel does not fulfill the aforesaid technical
      requirements of Anders, this Court will deny the petition to
      withdraw and remand the case with appropriate instructions
      (e.g., directing counsel either to comply with Anders or file an
      advocate's brief on Appellant’s behalf). By contrast, if counsel’s
      petition and brief satisfy Anders, we will then undertake our
      own review of the appeal to determine if it is wholly frivolous. If
      the appeal is frivolous, we will grant the withdrawal petition and
      affirm the judgment of sentence. However, if there are non-




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        frivolous issues, we will deny the petition and remand for the
        filing of an advocate’s brief.

Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)

(citations omitted).

        Our Supreme Court has clarified the requirements of the Anders brief:

        Accordingly, we 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.

Santiago, 978 A.2d at 361.

        We find that counsel has complied substantially with the requirements

of Anders and Santiago.3        We, therefore, will undertake a review of the

appeal to determine if it is wholly frivolous.

        We begin by noting that “generally, a plea of guilty amounts to a

waiver of all defects and defenses except those concerning the jurisdiction of

the court, the legality of the sentence, and the validity of the guilty plea.”

Commonwealth v. Reichle, 589 A.2d 1140, 1141 (Pa. Super. 1991)

(citation omitted).

3
    Appellant has filed a pro se response to the counsel’s Anders brief.




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      In his Anders brief, counsel presents the following issues that might

arguably support an appeal: “Whether [the trial court] should have explored

the statement attributed to [Appellant] in the Affidavit of Probable Cause

attached to the Criminal Complaint that he did not steal the truck in question

and that he had paid $2,000 for it?” Anders Brief at 1.

       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). Failure to
      employ either measure results in waiver. Commonwealth v.
      Tareila, 895 A.2d 1266, 1270 n. 3 (Pa. Super. 2006).
      Historically, Pennsylvania courts adhere to this waiver principle
      because “[i]t is for the court which accepted the plea to consider
      and correct, in the first instance, any error which may have been
      committed.” Commonwealth v. Roberts, 237 Pa. Super. 336,
      352 A.2d 140, 141 (1975) (holding that common and previously
      condoned mistake of attacking guilty plea on direct appeal
      without first filing petition to withdraw plea with trial court is
      procedural error resulting in waiver; stating, “(t)he swift and
      orderly administration of criminal justice requires that lower
      courts be given the opportunity to rectify their errors before they
      are considered on appeal”; “Strict adherence to this procedure
      could, indeed, preclude an otherwise costly, time consuming,
      and unnecessary appeal to this court”).

Commonwealth v. Lincoln, 72 A.3d 606, 609-10 (Pa. Super. 2013).

      Instantly, Appellant has waived review of the validity of his guilty plea

because he failed to preserve it properly by objecting during the plea

colloquy or by filing a post-sentence motion to withdraw his plea. Thus, we

conclude that this issue is frivolous.




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      Moreover, even if Appellant had preserved this issue, it would still be

frivolous.   “[A]fter the court has imposed a sentence, a defendant can

withdraw his guilty plea ‘only where necessary to correct a manifest

injustice.’” Commonwealth v. Prendes, 97 A.3d 337, 352 (Pa. Super.

2014) (quoting Commonwealth v. Starr, 301 A.2d 592, 595 (Pa. 1973)).

      To be valid, a guilty plea must be knowingly, voluntarily and
      intelligently entered. [A] manifest injustice occurs when a plea is
      not     tendered    knowingly,   intelligently,  voluntarily,  and
      understandingly. The Pennsylvania Rules of Criminal Procedure
      mandate pleas be taken in open court and require the court to
      conduct an on-the-record colloquy to ascertain whether a
      defendant is aware of his rights and the consequences of his
      plea. Under [Pa.R.Crim.P.] 590, the court should confirm, inter
      alia, that a defendant understands: (1) the nature of the charges
      to which he is pleading guilty; (2) the factual basis for the plea;
      (3) he is giving up his right to trial by jury; (4) and the
      presumption of innocence; (5) he is aware of the permissible
      ranges of sentences and fines possible; and (6) the court is not
      bound by the terms of the agreement unless the court accepts
      the plea. The reviewing Court will evaluate the adequacy of the
      plea colloquy and the voluntariness of the resulting plea by
      examining the totality of the circumstances surrounding the
      entry of that plea. Pennsylvania law presumes a defendant who
      entered a guilty plea was aware of what he was doing, and the
      defendant bears the burden of proving otherwise.

Prendes, 97 A.3d at 352-53.

      A review of the record reveals that the trial court inquired into the

appropriate areas. N.T., 6/16/2014, at 5-10.     Moreover, Appellant and his

attorney signed a lengthy guilty plea statement and statement of post-

sentence rights. Notably, the trial court questioned Appellant as follows.




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             The Court: In this case, the Commonwealth would have to
      prove at trial that on the date charged you unlawfully retained or
      disposed of the moveable property of another either believing
      that it was stolen or -- either knowing it was stolen or believing
      that it was probably stolen. Do you understand that?

            [Appellant]: Yes, sir.

                                         ***

            The Court: Do you understand by entering the plea,
      you’re admitting your guilt?

            [Appellant]: Yes, sir.

N.T., 6/16/2014, at 7-8.

      As the plea and sentencing came to a close, Appellant raised the issue

that the vehicle involved was a truck he “put in [his] girlfriend’s name.” Id.

at 16. However, he wanted to know when he would be extradited to Virginia

to face the other charge in connection with this incident.       In his pro se

response to counsel’s Anders Brief, Appellant claims once again that he

“bought [the truck and] put it in [his girlfriend’s] name[.]” Pro Se Brief at 1.

He also claims that he “was advised by [his] lawyer to plead guilty” and now

wishes to appeal on the basis that “the truck wasn’t stolen.” Id. at 2.

However, “[a] defendant is bound by the statements he makes during his

plea colloquy, and may not assert grounds for withdrawing the plea that

contradict statements made when he pled.” Commonwealth v. Stork, 737

A.2d 789, 790–91 (Pa. Super. 1999).        Because Appellant admitted at his




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guilty plea hearing that he stole the truck, an argument on appeal that the

truck was not stolen is wholly frivolous.

      Thus, after a review of the record, we agree with counsel that this

appeal is wholly frivolous.   For these reasons, we affirm the 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: 1/13/2015




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