J-S69018-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMAR JEROME WILLIAMS                      :
                                               :
                       Appellant               :   No. 1412 EDA 2019


         Appeal from the Judgment of Sentence Entered April 29, 2019,
              in the Court of Common Pleas of Delaware County,
             Criminal Division at No(s): CP-23-CR-0001449-2018.

BEFORE:      SHOGAN, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.:                          FILED JANUARY 31, 2020

        Jamar Jerome Williams appeals from the judgment of sentence imposed

following the entry of his plea of nolo contendere to one count each of fleeing

or eluding a police officer, and driving under the influence (“DUI”).1

Additionally, Williams’ court-appointed counsel, J. Anthony Foltz, Esquire, has

filed an application to withdraw as counsel and an accompanying brief

pursuant to Anders v. California, 386 U.S. 738, 744 (1967).            We grant

Attorney Foltz’s application, and affirm Williams’ judgment of sentence.

        The relevant facts underlying this appeal are as follows. In the early

morning hours of August 25, 2017, police pursued a vehicle traveling


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*   Retired Senior Judge assigned to the Superior Court.

1   See 75 Pa.C.S.A. §§ 3733(a), 3802(b).
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recklessly at a high rate of speed with two occupants. The pursuit ended when

the vehicle hit the curb, struck a light pole, and then flipped over several

times. One of the occupants fled the vehicle. Williams, who is the registered

owner of the vehicle, was found unconscious by police at the accident scene,

having suffered a deep laceration to his head.       Williams was taken to the

hospital, where he remained for several days due to his injuries. His medical

records reflect that, following the accident, he had a blood alcohol content

(“BAC”) of 0.176 percent, and his urine tested positive for THC canniboids.

        While Williams was in the hospital, police did not place him under arrest,

or read him his Miranda2 rights. They attempted to speak with him about

the accident, but he did not appear sufficiently coherent to engage in

conversation. However, Williams did indicate to detectives that “he believed

the police were behind him attempting to stop him because he thought he ran

a red light.” N.T. Suppression, 9/6/18, at 12-13.

        Defense counsel moved to suppress the statement that Williams made

to police at the hospital. At a hearing on the motion, counsel argued that

Williams had just come out of a coma and was on pain medications, and it

was unclear as to whether he gave a knowing, voluntary, and intelligent

waiver of his right to remain silent. In response, the Commonwealth argued

that, although Williams was confined to a hospital room due to his injuries, no



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2   See Miranda v. Arizona, 384 U.S. 46 (1966).

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custodial interrogation occurred because all police questions were general and

brief, and Williams’ family members and medical personnel were present. At

the conclusion of the hearing, the trial court denied suppression.

       Pursuant to a plea agreement, Williams entered a plea of nolo

contendere to fleeing or eluding a police officer and DUI. Defense counsel

explained the terms of the plea agreement to Williams. The trial court then

sentenced him to two years of probation for fleeing or eluding a police officer,

and to a concurrent term of time served (thirty-four days) to six months for

DUI.

       Williams filed a timely pro se notice of appeal.3 The trial court ordered

Williams to file a Pa.R.A.P. 1925(b) concise statement of errors complained of

on appeal. In response, Williams’ counsel, Attorney Foltz, filed a statement

of intent to file an Anders brief. The trial court thereafter filed a Pa.R.A.P.

1925(a) opinion. In this Court, Attorney Foltz filed an application to withdraw




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3 Our courts have made clear that a defendant who is represented by counsel
may not engage in hybrid representation by filing pro se documents. See
Commonwealth v. Ali, 10 A.3d 282, 293 (Pa. 2010). However, while there
is no right to hybrid representation, there is a right to appeal pursuant to
Article 5, § 9 of the Pennsylvania Constitution. See Commonwealth v. Ellis,
626 A.2d 1137, 1138 (Pa. 1993). Because a notice of appeal protects a
constitutional right, it is distinguishable from other filings that require counsel
to provide legal knowledge and strategy in creating a motion, petition, or brief.
See Commonwealth v. Williams, 151 A.3d 621, 624 (Pa.Super. 2016). The
trial court therefore properly docketed the pro se notice of appeal and
forwarded it to this Court pursuant to Pa.R.A.P. 902 (note).

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as counsel and an Anders brief. Williams did not file a response to the petition

to withdraw or the Anders brief.

      “When presented with an Anders brief, this Court may not review the

merits of the underlying issues without first passing on the request to

withdraw.” Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super. 2010)

(citation omitted). Pursuant to Anders, when counsel believes an appeal is

frivolous and wishes to withdraw from representation, counsel must do the

following:

      (1) petition the court for leave to withdraw stating that after
      making a conscientious examination of the record, counsel has
      determined the appeal would be frivolous; (2) file a brief referring
      to any issues that might arguably support the appeal, but which
      does not resemble a no-merit letter; and (3) furnish a copy of the
      brief to the defendant and advise him of his right to retain new
      counsel, proceed pro se, or raise any additional points he deems
      worthy of this Court’s attention.

Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006)

(citation omitted).   In Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009), our Supreme Court addressed the second requirement of Anders, i.e.,

the contents of an Anders brief, and required that the brief:

      (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


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            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.          Once counsel has satisfied the Anders

requirements, it is then this Court’s responsibility “to conduct a simple review

of the record to ascertain if there appear on its face to be arguably meritorious

issues   that   counsel,   intentionally   or   not,   missed   or   misstated.”

Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018).

      Here, Attorney Foltz has complied with each of the requirements of

Anders. Attorney Foltz indicates that he conscientiously examined the record

and determined that an appeal would be frivolous. Further, Attorney Foltz’s

Anders brief comports with the requirements set forth by the Supreme Court

of Pennsylvania in Santiago. Finally, the record includes a copy of the letter

that Attorney Foltz sent to Williams, advising him of his right to proceed pro

se or retain alternate counsel and file additional claims, and stating Attorney

Foltz’s intention to seek permission to withdraw. Accordingly, Attorney Foltz

has complied with the procedural requirements for withdrawing from

representation, and we will conduct an independent review to determine

whether Williams’ appeal is wholly frivolous.

      In the Anders Brief, Attorney Foltz raises one issue for our review: “Did

the trial court err in dismissing the motion for the suppression of the

statements made by Mr. Williams during his interrogation without being

informed of his Miranda rights?” Anders Brief at 3. In discussing this issue,




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Attorney Foltz indicates his belief that the claim is frivolous because it was

waived upon the entry of Williams’ plea of nolo contendere. We agree.

      A nolo contendere plea has the same effect as a guilty plea for purposes

of sentencing and is considered a conviction. See Commonwealth v. Lewis,

79 A.2d 1227 (Pa. Super. 2002). Additionally, upon entry of a negotiated

guilty plea, a defendant waives all claims and defenses other than those

sounding in the jurisdiction of the court, the validity of the plea, and the

legality of the sentence imposed. See Commonwealth v. Jabby, 200 A.3d

500, 505 (Pa. Super. 2018). Thus, by entering a negotiated nolo contendere

plea, Williams waived any challenge to the voluntariness of his statement to

police.   See Commonwealth v. Triplett, 381 A.2d 877, 880 (Pa. 1977).

Accordingly, we agree with Attorney Foltz’s determination that this claim is,

in fact, wholly frivolous.

      Finally, as required by Anders, we have independently reviewed the

record in order to determine whether there are any non-frivolous issues

present in this case. Our independent review of the record discloses no other

non-frivolous issues that Williams could raise that his counsel overlooked.

Dempster, supra.       The record of the case demonstrates no jurisdictional

defects in the Delaware County Court of Common Pleas. There is no indication

in the record that Williams’s plea was not entered knowingly, voluntarily, and

intelligently.   See Commonwealth v. Kpou, 153 A.3d 1020, 1023 (Pa.

Super. 2016). Indeed, our review indicates that the trial court inquired into


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all required areas prior to accepting Williams’s plea.4         See Written Plea

Colloquy, 4/29/19, at 1-4; N.T. Plea Hearing, 4/29/19, at 12-14.          Finally,

Williams received a legal sentence.            Having concluded that there are no

meritorious issues, we grant Attorney Foltz’s application to withdraw as

counsel, and affirm the judgment of sentence.

       Application to withdraw as counsel granted.          Judgment of sentence

affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/31/20




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4 The trial court is required to inquire (1) whether the defendant understands
the nature of the charges; (2) what the factual basis is for the plea; (3)
whether the defendant understands that he has a right to a trial by jury; (4)
whether the defendant understands that he is presumed innocent until found
guilty; (5) whether the defendant is aware of the permissible range of
sentences or fines for the offenses; and (6) whether the defendant knows that
the trial judge is not bound by the terms of the plea agreement unless she
accepts the plea. See Pa.R.Crim.P. 590 (comment); see also Kpou, 153
A.3d at 1023.

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