J-S60042-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                       v.

SHAWN EMMENS

                            Appellant             No. 1120 EDA 2015


             Appeal from the Judgment of Sentence March 9, 2015
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0003999-2014


BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY OTT, J.:                         FILED NOVEMBER 13, 2015

        Shawn Emmens appeals the judgment of sentence entered March 9,

2015, in the Delaware County Court of Common Pleas.        The trial court

imposed a sentence of time served to 23 months’ imprisonment, after

Emmens entered a plea of nolo contendere to one count of possession with

intent to deliver marijuana.1 Contemporaneous with this appeal, Emmens’

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 identifies one

issue for our review, that is, whether Emmens’ plea of nolo contendere was


____________________________________________


1
    35 P.S. 780-113(a)(30).
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entered knowingly and voluntarily.    For the reasons that follow, we affirm

the judgment of sentence and grant counsel’s petition to withdraw.

     The facts underlying Emmens’ arrest are gleaned from the probable

cause affidavit attached to Emmens’ criminal complaint.       See Criminal

Complaint, 5/13/2013, Probable Cause Affidavit, at 1.    On May 10, 2013,

members of both the Chester Police Department Narcotic/Vice Intelligence

Unit and the Unifomed Narcotic Strike Force Team were conducting

surveillance in the area of West 10th Street and Pine Lane in Chester,

Pennsylvania.    At approximately 3:41 p.m., Officer C. Butcher observed a

black female approach a black male, later identified as Emmens, who was

loitering in front of a store on Keystone Road. The officer observed the two

engage in a short conversation, and then walk towards an alley at the rear

of the 900 block of Clover Lane. Emmens walked into the alley, and out of

Officer Butcher’s view, while the female remained on the street.     Emmens

returned shortly thereafter, and handed the female several small, dark

colored items.   In exchange, the female handed Emmens paper currency.

Officer Butcher then radioed for assistance to stop the female, who was

leaving the area.

     Captain Joseph Massi stopped the female based on the description

provided by Officer Butcher.   During an ensuing pat down search, Captain

Massi recovered five clear plastic baggies each containing what was later

determined to be marijuana.          Another officer stopped Emmens and

performed a pat down search, which uncovered $340.00 in cash.

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        Emmens was subsequently charged with possession with intent to

deliver marijuana, possession of marijuana,2 and possession of drug

paraphernalia.3     On March 9, 2015, he entered a negotiated plea of nolo

contendere to one count of possession with intent to deliver marijuana, in

exchange for which the Commonwealth dismissed the remaining charges,

and recommended a sentence of time served to 23 months’ incarceration.4

After accepting the plea, the trial court imposed the recommended sentence.

This timely appeal followed.5

        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. Goodwin,

928 A.2d 287, 290 (Pa. Super. 2007) (en banc).       Here, our review of the

record reveals counsel has complied with the requirements for withdrawal

outlined in Anders, supra, and its progeny.      Specifically, counsel filed a

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2
    35 P.S. § 780-113(a)(16).
3
    35 P.S. § 780-113(a)(32).
4
  The Commonwealth explained at the plea hearing that Emmens was to
receive credit for his time served from January 29, 2015 to March 9, 2015.
N.T., 3/9/2015, at 3.
5
   On April 14, 2015, the trial court ordered Emmens to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
On May 1, 2015, counsel complied with the court’s directive by serving the
trial court with a statement of his intent to file an Anders brief pursuant to
Pa.R.A.P. 1925(c)(4).



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petition for leave to withdraw, in which he states his belief that the appeal is

frivolous, filed an Anders brief pursuant to the dictates of Commonwealth

v. Santiago, 978 A.2d 349, 361 (Pa. 2009), furnished a copy of the Anders

brief to Emmens and advised Emmens of his right to retain new counsel or

proceed pro se.      Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.

Super. 2013) (en banc).          Moreover, our review of the record reveals no

additional correspondence from Emmens.           Accordingly, we will proceed to

examine the record and make an independent determination of whether the

appeal is wholly frivolous.

       The sole issue identified in counsel’s Anders brief is a challenge to the

voluntariness of Emmens’ nolo contendere plea based on an abbreviated oral

plea colloquy.6 Anders’ Brief at 3.

       Preliminarily, we note that:

       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).




____________________________________________


6
  “[I]n terms of its effect upon a case, a plea of nolo contendere is treated
the same as a guilty plea.” Commonwealth v. Lewis, 791 A.2d 1227,
1230 (Pa. Super. 2002) (citation omitted), appeal denied, 806 A.2d 859 (Pa.
2002).




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Commonwealth v. Lincoln, 72 A.3d 606, 609-610 (Pa. Super. 2013),

appeal denied, 87 A.3d 319 (Pa. 2014). Here, Emmens neither objected to

the plea colloquy during the hearing, nor filed a post-sentence motion to

withdraw his plea. Therefore, his challenge is now waived.

        Moreover, even if we were to find that Emmens’ claim is preserved for

our review, we would conclude he is entitled to no relief. As counsel aptly

notes, the oral colloquy conducted by the trial court in this case was “sparse

to say the least[.]” Anders Brief at 3. Nevertheless, Emmens completed a

detailed written colloquy prior to the hearing, which was referred to during

the plea hearing and is included in the certified record. 7 “[A] written plea

colloquy that is read, completed and signed by the defendant and made part

of    the   record   may    serve    as    the   defendant's   plea   colloquy   when

supplemented by an oral, on-the-record examination.” Commonwealth v.

Reid, 117 A.3d 777, 782 (Pa. Super. 2015).

        This Court has explained:

        “[A] plea of guilty will not be deemed invalid if the circumstances
        surrounding the entry of the plea disclose that the defendant had
        a full understanding of the nature and consequences of his plea
        and that he knowingly and voluntarily decided to enter the plea.”
        “Our law presumes that a defendant who enters a guilty plea
        was aware of what he was doing. He bears the burden of
        proving otherwise.” The entry of a negotiated plea is a “strong
        indicator” of the voluntariness of the plea.

Id. (internal citations omitted).
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7
    See Guilty Plea Statement, 3/17/2015.



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     In the present case, the “circumstances surrounding the entry of the

plea” indicate that Emmens’ decision to plead nolo contendere was

voluntary. Id. Emmens’ attorney stipulated to the facts in the affidavit of

probable cause and the laboratory reports submitted by the Commonwealth.

N.T., 3/9/2015, at 4.     Emmens acknowledged to the court that he had

completed a detailed written plea statement, and was given sufficient time

to review the statement with his attorney. Id. at 4-5. Further, before the

court accepted the plea, Emmens asked for a moment to speak with his

attorney, and was given the opportunity to do so. Id. at 6. Finally, we note

that the negotiated agreement was very favorable to Emmens, as he was

sentenced in the mitigated range of the guidelines to time served.       See

Guideline Sentence Form, 3/9/2015.

     Because we agree with counsel’s assessment that Emmens’ appeal is

frivolous, we affirm the judgment of sentence and grant counsel’s petition to

withdraw.

     Judgment of sentence affirmed.       Petition to withdraw as counsel

granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/2015


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