J-S75012-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

JERMAINE THOMPSON

Appellant No. 870 EDA 2016

Appeal from the Judgment of Sentence February 22, 2016

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0004572-2015

BEFORE: BOWES, MOULTON AND MUSMANNO JJ.

MEMORANDUM BY BOWES, J.: FILED NOVEMBER 30, 2016

Jermaine Thompson appeals from the judgment of sentence of a fine 

of $200, plus costs, imposed by the trial court after he pled guilty to 

possession of a small amount of marijuana. Counsel filed a petition to 

withdraw from representation and a brief pursuant to Anders v. California, 

386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 

2009). We affirm and grant counsel’s petition to withdraw. 

We rely on the facts from the affidavit of probable cause supporting 

the complaint as those facts were incorporated into the guilty plea 

proceedings in support of the factual basis for Appellant’s plea. At 

approximately 12:31 a.m. on May 9, 2015, Officer John Esher of the 

Haverford Township Police Department received a radio call to investigate a 
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running silver Honda parked in front of a certain residence. Upon arriving at 

that location, Officer Esher observed a silver Honda, occupied by Appellant 

and one other individual, parked in front, and approached the vehicle and 

knocked on the window. As Appellant opened his window, a plume of smoke 

bellowed out of it. Officer Esher immediately recognized the odor of the 

smoke as burnt marijuana. When the officer asked Appellant what they 

were doing, Appellant replied, “smoking.” Affidavit of Probable Cause, 

5/12/15, at 1. Officer Esher directed Appellant to exit the vehicle and asked 

him whether there were any drugs or weapons in the car. Appellant 

answered in the affirmative, and, upon inspection, the officer discovered a 

small amount of marijuana within the vehicle.

Based on the foregoing, Appellant was charged with possession of a 

small amount of marijuana. On February 22, 2016, Appellant entered a 

negotiated guilty plea to the offense. The trial court conducted the 

mandated colloquy and approved the plea arrangement. Appellant’s written 

guilty plea statement was also entered into the record. The court accepted 

Appellant’s guilty plea and sentenced him, in accordance with the negotiated 

terms, to a $200 fine plus costs. Thereafter, Appellant filed a timely notice 

of appeal.1 In lieu of a Rule 1925(b) statement of errors complained of on 

____________________________________________

1 The notice of appeal was filed by counsel, who indicated that Appellant had 

requested that an appeal be pursued. 
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appeal, counsel filed a statement of intent to file an Anders brief in 

accordance with Pa.R.C.P. 1925(c)(4). The trial court then authored its Rule 

1925(a) opinion. 

Appellant’s counsel now files a petition to withdraw and an 

accompanying Anders brief, asserting there are no non-frivolous issues to 

be reviewed. In the Anders brief, counsel set forth the following as the 

issue arguably supporting an appeal: “Whether the Lower Court should have 

explored [Appellant’s] eligibility for the Accelerated Rehabilitative Disposition 

[(“ARD”)] program during the guilty plea colloquy?” Anders brief at 1. 

Since we do not address the merits of issues raised on appeal without 

first reviewing a request to withdraw, we evaluate counsel’s petition to 

withdraw at the outset. Commonwealth v. Cartrette, 83 A.3d 1030 

(Pa.Super. 2013) (en banc). Counsel must meet three procedural 

requirements in order to withdraw: 1) petition for leave to withdraw and 

state that, after making a conscientious examination of the record, counsel 

has concluded that the appeal is frivolous; 2) provide a copy of the Anders

brief to the defendant; and 3) inform the defendant that he has the right to 

retain private counsel or raise, pro se, additional arguments that the 

defendant deems worthy of the court’s attention. Id. 

Counsel’s petition to withdraw provides that he made a thorough 

review of the record and concluded that the appeal is wholly frivolous. 

Counsel sent Appellant copies of the petition to withdraw and the Anders
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brief, and instructed him that he had the right to retain new counsel. In that 

communication, counsel also expressed that Appellant could proceed pro se

and raise any issues he believed this Court should consider. Counsel mailed 

these documents to Appellant at his last-known address, however, they were 

returned with the notation, “Attempted. Not Known.” Letter to Superior 

Court Prothonotary, 8/12/16, at unnumbered 1. As Appellant failed to notify 

the Court or his attorney as to any changes in his address during the 

pendency of this appeal, we find counsel has complied substantially with the 

procedural requirements of Anders. 

We now consider whether counsel’s Anders brief meets the 

substantive elements of Santiago. Pursuant to Santiago, an Anders brief 

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, supra at 361. 

Counsel provided the procedural posture and relevant factual 

background with citations to the record. He presented argument tending to 

support the appeal. Nevertheless, counsel concludes that Appellant’s appeal 

is frivolous, setting forth reasons in support of that position, and case law 
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that holds this issue would not entitled him to relief. Thus, counsel has 

complied with the requirements of Anders/Santiago. 

We now proceed to examine the issue presented by counsel in the 

Anders brief. Counsel styles this claim as contending Appellant did not 

enter his guilty plea knowingly, voluntarily, and intelligently. This assertion 

concerns an exchange which occurred during the plea colloquy. After the 

plea judge inquired whether Appellant had any additional information to 

offer the court, Appellant informed the court that certain court notices were 

being sent to the wrong address. The following discussion ensued: 

Appellant: Yeah. And I guess they’ve been mailing it out to 

Townsend, Delaware. So that’s why I never was aware of the 

Court date, because I called my Public Defender, Tom, I guess. 

He said that I was – I called him like a couple of months ago. I 

was asking him about the ARD Program. And he was like, have 

they sent the letter to you? I was like, no, I haven’t gotten the 

letter. So he said, wait for a letter. But apparently, it’s being 

going to Townsend Delaware, which I never lived at. 

Appellant’s Counsel: Your Honor, I do have him missing – I 

have no shows in here, 11/18, 12/16, 1/20, and then I guess I 

was assigned to it on February 1st. I did explain to [Appellant] 

that I’d be willing to go and see if they would consider him for 

ARD, because I think there might have been some mix-up with 

the address, but he indicated to me that he would rather take 

the plea with no probation and fines.

 

The Court: All right. Thank you. As it then relates to Count 

One, Personal Use of Marijuana, an Ungraded Misdemeanor, 

pursuant to counsel’s agreement, [Appellant] will pay a $200 

fine, $100 assessment, laboratory fees incorporated with the 

cost of prosecution. Any questions, sir? 

Appellant: No, sir. 
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N.T. Plea Colloquy, 2/22/16, at 7-8. It is well-settled that Pennsylvania law 

requires that a guilty plea be made knowingly, voluntarily, and intelligently. 

Commonwealth v. Rush, 909 A.2d 805 (Pa.Super. 2006). In order to 

ascertain whether a guilty plea is constitutionally valid we evaluate such a 

plea utilizing the following guidelines: 

the guilty plea colloquy must affirmatively show that the 

defendant understood what the plea connoted and its 

consequences. This determination is to be made by examining 

the totality of the circumstances surrounding the entry of the 

plea. 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. 

Id. at 808 (citation omitted). 

As an issue of arguable merit, Appellant’s counsel asserts the court 

should have inquired in more detail as to whether Appellant understood the 

impact his guilty plea would have on a potential ARD disposition. Thus, 

counsel maintains, Appellant’s choice of a guilty plea reflected that he did 

not comprehend, pursuant to Rush, supra, “what the plea connoted and its 

consequences.” Anders brief at 4. 

Herein, when prompted by the court, Appellant did not question the 

unavailability of ARD, but rather, acquiesced to counsel’s statement that 

Appellant preferred entering a guilty plea without probation to ARD. 

Moreover, the court found Appellant’s guilty plea was knowing, intelligent, 

and voluntary, and Appellant bears the burden of proving otherwise. 
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Commonwealth v. Prendes, 97 A.3d 337, 352 (Pa.Super. 2014). 

Notwithstanding the apparent validity of Appellant’s guilty plea, we observe 

that Appellant did not object to his guilty plea at the colloquy nor did he file 

a timely motion to withdraw the plea. As a result, his challenge to the 

validity of his guilty plea is waived. Commonwealth v. Lincoln, 72 A.3d 

606, 609-610 (Pa.Super. 2013). Therefore, this issue is wholly frivolous. 

After conducting an independent review of the certified record 

pursuant to Commonwealth v. Flowers, 113 A.3d 1246 (Pa.Super. 2015), 

we find there are no other non-frivolous issues that can be raised in this 

appeal. 

Petition of Patrick J. Connors, Esquire, to withdraw as counsel is 

granted. Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/30/2016