Com. v. Morrison, K.

J-S15019-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

KEITH DARRIN MORRISON, :

:

Appellant : No. 1348 EDA 2017

Appeal from the Judgment of Sentence February 10, 2017

In the Court of Common Pleas of Montgomery County

Criminal Division at No.: CP-46-CR-0000273-2015

BEFORE: STABILE, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.: FILED JULY 18, 2018

Appellant, Keith Darrin Morrison, appeals from the Judgment of

Sentence entered by the Montgomery County Court of Common Pleas after he

entered a negotiated guilty plea to one count of Burglary.1 On appeal, he

challenges the validity of his plea. Appellant’s counsel filed a Petition to

Withdraw as Counsel and a Brief pursuant to Anders v. California, 386 U.S.

738 (1967), as elucidated by our Supreme Court in Commonwealth v.

McClendon, 434 A.2d 1185 (Pa. 1981), and Commonwealth v. Santiago,

978 A.2d 349 (Pa. 2009). After careful review, we grant counsel’s Petition to

Withdraw and affirm Appellant’s Judgment of Sentence.

The trial court set forth the underlying facts in its Pa.R.A.P. 1925(a)

Opinion and we need not repeat them in detail. See Trial Court Opinion, filed

____________________________________________

1 18 Pa.C.S. § 3502(a)(1).

J-S15019-18

9/28/17, at 1-2. Briefly, in June 2014 Appellant broke into a home in Upper

Merion Township and stole cash and watches valued at $42,000. On February

10, 2016, Appellant entered a negotiated guilty plea to one count of Burglary

and the court immediately sentenced him to the negotiated term of 7½ to 15

years’ incarceration. Significantly, Appellant did not file a Post-Sentence

Motion or a Notice of Appeal.

On November 22, 2016, Appellant filed a pro se PCRA Petition alleging

plea counsel’s ineffectiveness. The PCRA court appointed counsel, who filed

an Amended PCRA Petition on February 16, 2017, alleging plea counsel’s

ineffectiveness for failure to file a requested direct appeal. The PCRA court

held an evidentiary hearing, at which Appellant, his plea counsel, and another

attorney testified.2 On April 5, 2017, the PCRA court granted Appellant’s PCRA

Petition and reinstated Appellant’s direct appeal rights nunc pro tunc.

On April 24, 2017, Appellant filed a timely Notice of Appeal. 3 Both

Appellant and the trial court complied with Pa.R.A.P. 1925.

On December 12, 2017, counsel filed a Brief and a Petition to Withdraw

pursuant to Anders and Santiago. Appellant did not file a response to

counsel’s Anders Brief.

____________________________________________

2 Appellant’s retained counsel did not handle Appellant’s plea; a colleague

covered Appellant’s guilty plea hearing. See N.T. PCRA, 3/29/17, at 27-28.

Both attorneys testified at the PCRA hearing. Appellant appeared by video

from SCI Pine Grove.

3 Appellant’s PCRA counsel continued to represent Appellant.

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J-S15019-18

In his Anders Brief, counsel raised one issue:

Is the Appellant, Keith D. Morrison, entitled to a new trial on the

basis that his negotiated guilty plea was not knowing, voluntary

and intelligent[?]

Anders Brief at 3.

Before we address the merits of this appeal, we must determine whether

counsel has complied with the procedures provided in Anders and its progeny.

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en

banc). Counsel who wishes to withdraw must file a petition to withdraw

stating that he or she has made a conscientious examination of the record and

determined that there are no meritorious issues to be raised on appeal.

Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004). Also,

counsel must provide a copy of the Anders Brief to the appellant and inform

him of his right to proceed pro se or retain different counsel. Id. See also

Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super. 2005); Santiago,

978 A.2d at 361 (detailing substantive requirements of an Anders Brief).

Once counsel has satisfied the above requirements, it is then this Court’s

duty to conduct an independent review of the record to discern if there are

any additional, non-frivolous issues overlooked by counsel and render an

independent judgment as to whether the appeal is, in fact, wholly frivolous.

See Goodwin, supra at 291; Commonwealth v. Yorgey, ___ A.3d ___,

2018 PA Super 136, *5 (Pa. Super. filed May 24, 2018) (en banc) (noting that

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J-S15019-18

Anders requires the reviewing court to “review ‘the case’ as presented in the

entire record with consideration first of issues raised by counsel.”).

Counsel in the instant appeal has complied with the above requirements.

We thus proceed to conduct an independent review to ascertain if the appeal

is indeed wholly frivolous.

In the Anders Brief, Appellant’s counsel raised a challenge to the

validity of Appellant’s guilty plea. Anders Brief at 5-9. Specifically, Appellant

argues, inter alia, that plea counsel caused him to enter an unknowing and

involuntary plea because the plea colloquy was deficient. Id. Before we

address the merits of Appellant’s claim, we must first determine whether

Appellant preserved this issue in the court below.

“Issues not raised in the lower court are waived and cannot be raised

for the first time on appeal.” Pa.R.A.P. 302. Where an appellant failed to

challenge his guilty plea in the trial court, he may not do so on appeal.

Commonwealth v. Watson, 835 A.2d 786, 791 (Pa. Super. 2003). An

appellant may not cure his failure by raising the issue in his Pa.R.A.P. 1925(b)

Statement of Errors. Id.

In order to preserve a challenge to the validity of a guilty plea, the

appellant must either object during the sentencing colloquy, at the sentencing

hearing, or by filing a post-sentence motion. Commonwealth v. Tareila,

895 A.2d 1266, 1270 n.3 (Pa. Super. 2006). See, e.g., Commonwealth v.

May, 402 A.2d 1008, 1009 n.3 (Pa. 1979) (holding that appellant waived

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J-S15019-18

claim on appeal that he was entitled to withdraw his guilty plea because he

“did not understand the felony murder rule and his plea was[, therefore, not]

knowingly entered[,]” where appellant did not present this specific claim in

the trial court).

Here, Appellant failed to challenge the validity of his guilty plea during

his plea hearing. See N.T. Plea, 2/10/16, at 5-13. Appellant did not file a

post-sentence motion or otherwise seek to withdraw his guilty plea.

Accordingly, this claim is waived because Appellant never requested that the

trial court permit him to withdraw his plea. Pa.R.A.P. 302(a); Watson, 835

A.2d at 791.

Further, even if the claim were not waived, the claim would fail on its

merits. “A defendant who attempts to withdraw a guilty plea after sentencing

must demonstrate prejudice on the order of manifest injustice before

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

(Pa. Super. 2011) (citation omitted). “A showing of manifest injustice may be

established if the plea was entered into involuntarily, unknowingly, or

unintelligently.” Id.

Pa.R.Crim.P. 590 requires pleas to be entered in open court, and

specifies that the trial judge must make inquiries, on the record, to determine

whether the plea is voluntarily and knowingly tendered. The comments to

Pa.R.Crim.P. 590 specify that “nothing in the rule would preclude the use of a

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

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part of the record of the plea proceedings. This written colloquy would have

to be supplemented by some on-the-record oral examination.” Id.

We have reviewed Appellant’s written and oral guilty plea colloquies,

and conclude that the record belies Appellant’s claim that they were deficient

and, thus, unknowing and involuntary. The Honorable Gail A. Weilheimer,

sitting as the trial court, has authored a comprehensive, thorough, and well-

reasoned Opinion, citing relevant case law in addressing Appellant’s claim.

See Trial Court Opinion, filed 9/28/17, at 3-6 (concluding Appellant’s guilty

plea was knowing, voluntary, and intelligent because the court inquired into

the areas required under Pa.R.Crim.P. 590; (2) the court informed Appellant

of his post-sentence and appellate rights; and (3) Appellant’s oral and written

colloquies were thorough and sufficient, and Appellant may not now contradict

his statements contained on the record). Thus, even if Appellant had not

waived this issue for review, Appellant’s challenge to the validity of his

negotiated guilty plea would warrant no relief.

After conducting a full examination of all the proceedings as required

pursuant to Anders, we discern no non-frivolous issues to be raised on

appeal. We, therefore, grant counsel’s Petition to Withdraw and affirm

Appellant’s Judgment of Sentence.

Petition to Withdraw granted. Judgment of Sentence affirmed.

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J-S15019-18

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/18/18

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"Th Circulated 06/21/2018 01:41 PM

p IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA

CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA Common Pleas Court No.:

CP-46-CR-0000273-2015

v.

Superior Court No:

KEITH DARRIN MORRISON 1348 EDA 2017

(1)

PO

k0

OPINION

WEILHEIMER, J. September 3 , 2017

Appellant, Keith Darrin Morrison, instantly appeals the trial court's finding that his negotiated

guilty plea entered on February 10, 2016, is voluntary, knowing, and intelligent. For the reasons that will

follow, Appellant's guilty plea and corresponding judgment of sentence should be affirmed.

FACTUAL HISTORY

On February 10, 2016, Appellant pleaded guilty to the following factual basis stated by counsel

for the Commonwealth at the Guilty Plea Hearing:

Q: Sir, you understand that by pleading guilty, you are admitting that

on June 26 of 2014, in Upper Merion Township, Montgomery

County, you did, using a large stone, unlawfully enter into a home

where inside, you took cash and watches valued at $42,000,

without the permission of the owner of that home?

r)

A: Yes.

[. -]

Q: You then took those items and, at least some of those items, and

sold them at a pawn shop. Do you understand that that's what

you're admitting?

ca-

A: Yes. CD F17;

-4

(N.T. - Guilty Plea at 8, February 10, 2016.)

PROCEDURAL HISTORY

On January 14, 2015, the Criminal Complaint and Affidavit of Probable Cause were filed with this

Court of Common Pleas. (Criminal Complaint, 1/14/2015.) On April 9, 2015, the Bill of Information

was filed, charging Appellant, inter alia, of Count 1 - Burglary: Overnight Accommodation, Person

Present, Title 18 Pennsylvania Consolidated Statutes Annotated (Pa. C.S.A.) Section (§) 3502(a)(1), a

felony of the first degree. (Bill of Information, 4/9/2015.) On February 10, 2016, Appellant entered a

negotiated guilty plea on an Amended Count 1 - Burglary, a felony of the first degree, and was

subsequently sentenced on the same day to imprisonment for not less than seven-and -a -half (7.5) years

nor more than fifteen (15) years in a designated State Correctional Institution.1 (Disposition - Corrected,

2/10/2016.)

On November 22, 2016, Appellant filed pro se his Petition for Post -Conviction Collateral Relief

("PCRA Petition"), seeking a reinstatement of his direct appellate rights on the basis of ineffective

assistance of counsel. (Pro Se Filing - PCRA Petition, 11/22/2016.) On April 4, 2017, Gregory DiPippo,

Esquire, was appointed as PCRA Counsel for Appellant, who in -turn, filed an Amended PCRA Petition

on Appellant's behalf on February 16, 2017. (Def Filing - Amended PCRA Petition, 2/16/2017.) On

March 29, 2017, a Hearing was held on Appellant's Amended PCRA Petition, after which the trial court

granted Appellant relief by reinstating nunc pro tunc his direct appellate rights. (N.T. - Hr'g on Amended

PCRA, 3/29/2017; Court Order, 4/4/2017.)

On April 24, 2017, Appellant filed his Notice of Appeal2 with the Superior Court of Pennsylvania

("Superior Court"), and on May 1, 2017, the trial court ordered Appellant to file his Concise Statement of

Matters Complained of on Appeal ("Concise Statement") pursuant to Rule 1925(b) of the Pennsylvania

Rules of Appellate Procedure (Pa. R.A.P.). (See Notice of Appeal, 4/24/2017; 1925(b) Order for Concise

Statement, 5/1/2017.) On May 19, 2017, Appellant's Concise Statement was filed, raising the following

issue:

1. DEFENDANT WISHES TO RAISE THAT HIS GUILTY PLEA

WAS NOT KNOWINGLY, VOLUNTARILY AND

IThis sentence was made concurrent to all previously imposed sentences, i.e., in the associated criminal

matter, CR-0003080-2008.

2 Gregory DiPippo, Esquire, continued his legal representation of Appellant

on direct appeal following the

trial court's granting of PCRA relief.

2

INTELLIGENTLY ENTERED. UNDERSIGNED COUNSEL

WILL BE FILING AN ANDERS BRIEF ON APPEAL WITH

THE SUPERIOR COURT.

(Def/Concise Statement, 5/19/2017.)

DISCUSSION

tt

I. STANDARD OF REVIEW

"[I]n order to sustain the entry of a guilty plea[,] the reviewing court must be satisfied that[,] 'the

facts acknowledged by the defendant constitute a prohibited offense,' and 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." Commonwealth v. Clinger, 833 A.2d 792, 795 (quoting Commonwealth v. Fluharty,

632 A.2d 312, 313 (Pa. Super. 1993)). See also Pa. R. Crim. P. 590 (Pleas and Plea Agreements) (West

2017).

II. APPELLANT'S GUILTY PLEA IS VOLUNTARY, KNOWING, AND

INTELLIGENT, AND THEREFORE OUGHT TO BE SUSTAINED.

For the reasons that will follow, Appellant's guilty plea is voluntary, knowing, and intelligent, and

therefore should be sustained on appeal by the Superior Court. Moreover, the trial court notes defense

counsel's intent to file a brief in the Superior Court pursuant to Charles Anders v. State of California, 87

S. Ct. 1396 (U.S. 1995) (upon finding client's case to be wholly frivolous after a conscientious

examination, defense counsel should so advise the court and request permission to withdraw,

accompanied by brief referring to anything in the record that might arguably support the appeal).

Rule 590 of the Pennsylvania Rules of Criminal Procedure (Pa. R. Crim. P.) provides the

procedure for taking pleas and plea agreements. Pa. R. Crim. P. 590. "A defendant may plead [...]

guilty[;]" however, "the judge [...] shall not accept it unless the judge determines after inquiry of the

defendant that the plea is voluntarily and understandingly tendered. Such inquiry shall appear on the

record." Id. "When counsel for both sides have arrived at a plea agreement, they shall state on the record

in open court, in the presence of the defendant, the terms of the agreement[.]" Id. "The judge shall

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conduct a separate inquiry of the defendant on the record to determine whether the defendant understands

and voluntarily accepts the terms of the plea agreement on which the guilty plea [...] is based." Id. The

Comment to Rule 590 further provides a non-exhaustive list of questions that the judge or counsel, at a

minimum, should ask the defendant during a colloquy in order to determine the plea is being tendered

voluntarily and understandingly. See id. (Comment).

"[O]nce the defendant has entered a guilty plea, 'it is presumed that he was aware of what he was

doing, and the burden of proving involuntariness is upon him."' Commonwealth v. Willis, 68 A.3d 997,

1002 (Pa. Super. 2013) (quoting Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa. Super 2008)).

"[T]he law does not require that [the defendant] be pleased with the outcome of his decision to enter a

plea of guilty: All that is required is that [his] decision to plead guilty be knowingly, voluntarily, and

intelligently made." Willis, 68 A.3d at 1002 (citing Commonwealth v. Anderson, 995 A.2d 1184, 1192

(Pa. Super. 2010)).

The instant record reflects Appellant understands the guilty plea that he voluntarily tendered, as he

was given a qualifying examination (oral colloquy) during which the undersigned and counsel for both

parties clearly explained the terms of the plea agreement and special conditions on sentencing. (N.T. -

Guilty Plea, February 10, 2016.) Moreover, prior to the oral colloquy, defense counsel thoroughly went

over a written colloquy with Appellant to ensure he understood the terms of the plea agreement and its

corresponding sentencing conditions.

The terms of the negotiated plea agreement were placed on the record as follows:

[DEFENSE COUNSEL]: Your Honor, the terms are [...] [Appellant

is] pleading guilty to burglary, Fl; that's to

be a 7.5 to 15, cost of prosecution, no

contact with the victim, obviously. And it's

to run concurrent to all previously imposed

sentences. And, Your Honor, I want to

make sure it's on the record we are also

-

requesting and the Commonwealth has no

-

objection that it be made to run concurrent

to his parole hit, which he is now serving.

[...] Your Honor, it would be on 3080 of

2008.

4

THE COURT: That's the parole violation?

[DEFENSE COUNSEL]: Correct.

(N.T. - Guilty Plea at 3-4, February 10, 2016.) Thereafter, the defense counsel conducted Appellant's

qualifying examination on the record, which the trial court attached to the instant Opinion as Exhibit A.

(Id. at 5.) During the oral colloquy with Appellant, defense counsel referenced the written colloquy that

he had previously gone over with Appellant, which the trial court attached to the instant Opinion as

,1 Exhibit B. (Id. at 6-7 (Written Guilty Plea Colloquy admitted as Defendant's Exhibit D-1).) Notably,

Appellant testified he answered each of the questions on the written colloquy truthfully, he initialed each

page of the written colloquy, and he signed the back of the colloquy. (Id. at 6-7.) Appellant also testified

he was satisfied with defense counsel's advice and representation. (Id. at 7.)

Following Appellant's oral colloquy with defense counsel, counsel for the Commonwealth gave

the factual basis for the guilty plea3, to which Appellant agreed. (Id. at 8-9.) The Commonwealth also

confirmed Appellant was in agreement with his potential sentence, as follows:

Q: Do you understand this crime is graded as a felony of the first

degree? That means that the maximum sentence you could receive

is 10 to 20 years in jail and/or up to a $25,000 fine. Do you

understand?

A: Yes.

(Id. at 8-9.)

Based upon the aforementioned, the trial court found Appellant was tendering a knowing and

voluntary guilty plea; thus, accepting the same and proceeding to sentencing. (Id. at 9.)

3

See "Factual History" Section of the instant Opinion, supra, for the factual basis.

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CONCLUSION

Wherefore, Appellant's guilty plea should be sustained and his corresponding sentence affirmed.

BY THE COURT:

GAIL A. WEILHEIMER,

Copy mailed on September, 2017, to:

Superior Court Prothonotary

Defense Counsel, Gregory DiPippo, Esquire

DDA, Robert Falin, Esquire

Defendant, Keith Morrison, HR -8741, SCI - Pine Grove

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