Here is the text we could read:
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA
IN THE SUPERIOR COURT OF
PENNSYLVANIA
:
:
:
:
:
:
:
:
:
v.
ODNEY WILLIAM GARY
Appellant
No. 2635 EDA 2021
Appeal from the Judgment of Sentence Entered August 13, 2021
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0001201-2018
EFORE: PANELLA, P.J., LAZARUS, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.:
FILED MARCH 20, 2023
Rodney William Gary (“Gary”) appeals from the judgment of sentence
imposed after he pleaded nolo contendere to aggravated assault by vehicle
while driving under the influence (“DUI”), driving under the influence,
possession of a controlled substance, and related offenses.1 Gary’s counsel
(“Counsel”) has filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), and
petitioned to withdraw. We deny Counsel’s petition.
We summarize the factual history of this appeal from the affidavit of
probable cause, which the parties incorporated into the record of Gary’s nolo
contendere pleas. See Criminal Complaint, Affidavit of Probable Cause,
12/30/17, at 1; see also N.T., 10/29/19, at 15-16 (memorializing the parties’
____________________________________________
1 See 75 Pa.C.S.A. §§ 3735.1(a), 3802(d)(1)(i); 35 P.S. § 780-113(a)(16);
see also 75 Pa.C.S.A. §§ 3732.1(a), 3742(a), 3742.1(a), 3736(a), 3714(c),
3745(a), 3361, 3744.
R
B
J-A28042-22
J-A28042-22
stipulations to the affidavit of probable cause, the results of all chemical
testing, and Gary’s driving history as stating the factual bases for Gary’s
pleas). In the morning of December 30, 2017, Upper Darby Police Officer
James Friel received a dispatch about a vehicle striking a pedestrian, and was
among the officers to respond. When Officer Friel arrived at the accident
scene, he observed a man on the ground with open wounds and possible
broken bones. One witness reported that the driver had struck two stop signs
and then hit the pedestrian, after which the driver stopped, briefly got out of
his vehicle, and then drove away from the scene. The witness identified the
vehicle as a white Dodge Durango and gave officers its license plate number.
The witness described the driver as a black male. A second witness stated
that he was walking toward the accident scene when he heard people yelling
to stop a vehicle, and he took pictures of the driver and the vehicle’s license
plate. See Criminal Complaint, Affidavit of Probable Cause, 12/30/17, at 1.
Officer Friel patrolled the area and later found the Dodge Durango
double-parked by a building. He saw a man later identified as Gary, in a green
jacket walking away from the vehicle. Upon seeing the officer, Gary
immediately went into the building. Officer Friel and another officer entered
the building and found Gary. The officer brought Gary outside where one of
the witnesses from the accident scene identified him. A woman told police
that she saw Gary discard a pink bottle inside the building. An officer returned
to the building and recovered a bottle containing six pills, which later chemical
testing identified as alprazolam (“Xanax”). Police investigated the Dodge
- 2 -
J-A28042-22
Durango and noticed the smell of burnt marijuana inside the vehicle. Officers
contacted the Durango’s registered owner, who told them she had double-
parked the vehicle to go to an appointment while Gary remained in the car.
Police took Gary into custody, and he consented to a blood test. See id.
The Commonwealth charged Gary with numerous offenses related to the
hitting the pedestrian while DUI and his possession of Xanax. On October 29,
2019, Gary, who was represented by different counsel at the time (“prior
counsel”), entered nolo contendere pleas. The trial court accepted Gary’s
pleas and deferred sentencing. Following continuances and status
conferences during the COVID-19 emergency, Gary’s prior counsel filed a
motion to withdraw from representation. The trial court granted prior
counsel’s motion and appointed current Counsel.
Gary, through Counsel, filed a motion to withdraw his nolo contendere
pleas and asserted his innocence. See Motion to Withdraw Nolo Contendere
Pleas, 5/27/21, at 2. Gary denied driving the vehicle at the time it struck the
pedestrian and argued that the eyewitness identifications were unreliable.
See id. He further asserted the Commonwealth could not prove that he
possessed the bottle the police recovered in the building. See id. Following
a hearing, the trial court denied Gary’s motion to withdraw his pleas in July
2021, and held a sentencing hearing on August 13, 2021. The trial court
imposed an aggregate sentence of four to eight years of imprisonment. Gary
timely filed a post-sentence motion again requesting to withdraw his nolo
contendere pleas. The trial court denied Gary’s post-sentence motion. Gary
- 3 -
J-A28042-22
timely appealed, and Counsel filed a Pa.R.A.P. 1925(c)(4) statement of intent
to file an Anders brief. The trial court determined that no further explanation
of Gary’s conviction and sentence was necessary and did not prepare a Rule
1925(a) opinion. As noted above, Counsel has filed an Anders brief and a
petition to withdraw from representation.
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. See Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super.
2010). Pursuant to Anders, when counsel believes an appeal is frivolous and
wishes to withdraw from representation, he 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)
(internal citation omitted). In Santiago, 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 record, controlling
- 4 -
J-A28042-22
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 duty to conduct its own review of the trial
court's proceedings and render an independent judgment as to whether the
appeal is, in fact, wholly frivolous.” Edwards, 906 A.2d at 1228 (citation
omitted).
Here, Counsel avers in his petition to withdraw that he conducted a
thorough and conscientious review of the record and applicable case law, and
thereafter determined that there are no meritorious grounds to support Gary’s
appeal. Counsel further avers that he mailed Gary copies of the petition and
the Anders brief, as well as correspondence explaining Gary’s rights to retain
private counsel or proceed pro se and raise any additional arguments he
believes are meritorious. Counsel’s Anders brief includes a summary of the
facts and procedural history of the case, a list of issues that could arguably
support Gary’s appeal, and Counsel’s analysis of why the issues lack merit.
We conclude Counsel has complied with the technical requirements of the
Anders procedure. Accordingly, we will conduct an independent review to
determine whether Gary’s appeal is wholly frivolous.
Counsel identifies the following issue for review:
Whether [trial court] erred as a matter of law and abused its
discretion, in denying [Gary’s motion to withdraw] his nolo
contendere plea, which was filed by [Gary] prior to sentencing.
Anders Brief at 2.
- 5 -
J-A28042-22
The following principles govern our review. The right to withdraw a
guilty or nolo contendere plea is not absolute. See Commonwealth v.
Carrasquillo, 115 A.3d 1284, 1291 (Pa. 2015); see also Commonwealth
v. Norton, 201 A.3d 112, 114 & n.1 (Pa. 2019) (noting that the same
standards apply to pre-sentence motions to withdraw a guilty plea or a nolo
contendere plea). The trial court must construe a pre-sentence motion to
withdraw a plea “liberally in favor of the accused” and “any demonstration by
a defendant of a fair-and-just reason will suffice to support a grant, unless
withdrawal would work substantial prejudice to the Commonwealth.” See
Carrasquillo, 115 A.3d at 1292 (internal citation omitted). The trial court
may exercise its discretion when considering whether an assertion of
innocence constitutes a fair and just reason for a pre-sentence withdrawal of
a plea. See Norton, 201 A.3d at 120. A defendant’s bare assertion of
innocence will not establish a fair and just reason to withdraw a plea per se.
See id. The trial court may consider the credibility or plausibility of a
defendant’s assertion of innocence when assessing whether the defendant has
offered a colorable claim that the withdrawal of the plea would promote
fairness and justice. See id. at 120-21.
An appellate court reviews the trial court’s decision for an abuse of
discretion. Thus,
[w]hen a trial court comes to a conclusion through the exercise of
its discretion, there is a heavy burden on the appellant to show
that this discretion has been abused. An appellant cannot meet
this burden by simply persuading an appellate court that it may
have reached a different conclusion than that reached by the trial
- 6 -
J-A28042-22
court; rather, to overcome this heavy burden, the appellant must
demonstrate that the trial court actually abused its discretionary
power. An abuse of discretion will not be found based on a mere
error of judgment, but rather exists where the trial court has
reached a conclusion which overrides or misapplies the law, or
where the judgment exercised is manifestly unreasonable, or the
result of partiality, prejudice, bias or ill-will. Absent an abuse of
that discretion, an appellate court should not disturb a trial court's
ruling.
Id. at 120 (internal citations, quotations, and brackets omitted).
In the case sub judice, our review of the record reveals that the trial
court did not enter findings of fact or conclusions of law concerning its denial
of Gary’s pre-sentence motion to withdraw his nolo contendere pleas either
on the record at the hearing, in a separate order, or in a Rule 1925(a) opinion.
As emphasized by our Supreme Court, an appellate court’s role is to review
the trial court’s exercise of discretion when denying a pre-sentence motion to
withdraw a plea. See id. The absence of a trial court opinion, under the
circumstances of this appeal, impedes proper appellate review, and we decline
to consider Counsel’s independent assessment that this appeal is frivolous
without the benefit of the trial court’s discussion of its findings of fact,
determinations of credibility, and conclusions of law.
Accordingly, we deny Counsel’s petition to withdraw from representation
and direct the trial court to prepare a supplemental opinion within forty-five
days of this decision addressing its denial of Gary’s pre-sentence motion to
withdraw. This Court shall thereafter set a new briefing schedule during which
Counsel shall file an advocate’s brief or a new petition to withdraw and an
- 7 -
Anders brief,2 and the Commonwealth may file a supplemental appellee’s
Petition to withdraw denied with instructions. Panel jurisdiction
J-A28042-22
brief.
retained.
____________________________________________
2 We add that while Counsel extensively discussed the Commonwealth’s
evidence against Gary, including references to a preliminary hearing
transcript, the certified record does not indicate that the preliminary hearing
transcripts were admitted as evidence in connection with Gary’s pleas or his
motion to withdraw his pleas. Moreover, the certified record does not contain
a copy of that transcript or any other evidence the Commonwealth used to
establish a factual basis for the pleas aside from the affidavit of probable
cause. Counsel shall ensure that the record includes all information necessary
for this Court to render a decision upon issuance of the trial court’s
supplemental opinion.
- 8 -
