J-S30043-24
2024 PA Super 252
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEVIN RAY BRADLEY :
:
Appellant : No. 123 MDA 2024
Appeal from the Judgment of Sentence Entered December 29, 2023
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0000076-2022
BEFORE: PANELLA, P.J.E., SULLIVAN, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED: OCTOBER 31, 2024
Appellant Kevin Ray Bradley appeals from the judgment of sentence
entered by the Court of Common Pleas of Lycoming County after Appellant
entered a nolo contendere plea to Obstructing Administration of Law or Other
Governmental Function and Harassment. Appellant’s attorney, Nicole J.
Spring, Esq. (“appellate counsel”), has filed an application to withdraw and a
brief pursuant to Anders v. California, 386 U.S. 738 (1967). As we
determine there are non-frivolous issues to appeal in this case, we deny
counsel’s request to withdraw and remand for the filing of an advocate’s brief.
In June 2021, Appellant was initially charged with two counts each of
Intercepting Communications (18 Pa.C.S.A. § 5703(1)) and Disclosure of
Intercepted Communications (18 Pa.C.S.A. § 5703(2)), offenses defined in
the Wiretapping and Electronic Surveillance Control Act (“Wiretap Act”). The
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* Former Justice specially assigned to the Superior Court.
J-S30043-24
prosecution alleged that Appellant had secretly recorded separate
conversations with the Mayor of Williamsport, Pennsylvania and the
Pennsylvania Supreme Court Deputy Prothonotary without their consent and
uploaded those conversations to his YouTube channel. On December 29,
2023, the trial court granted the Commonwealth’s uncontested motion to
amend the information to add Counts 5 and 6 (Obstructing Administration of
Law or Other Governmental Function and Harassment), both of which were
graded as misdemeanors.
On the same date, Appellant entered a negotiated nolo contendere plea
to Obstructing Administration of Law or Other Governmental Function and
Harassment. Appellant submitted a written plea colloquy in which he
acknowledged that in entering this plea, he was “waiving [his] right to object
to anything that [he thought] was improper or illegal in the apprehension and
arrest, or in the investigation, and the prosecution of the charges against
[him].” Written plea colloquy, 12/29/23, at 5. Appellant also acknowledged
in the plea colloquy that an appeal of his plea agreement was limited to four
grounds: (1) that his plea was not a knowing, understanding, and voluntary
act, (2) that the trial court did not have jurisdiction to accept his plea, (3) the
the sentence was improper, illegal, or in excess of the plea agreement, and
(4) that his attorney was ineffective in improperly inducing the plea.
At the plea hearing, the trial court specifically asked defense attorney
Richard Coble, Esq. (“trial counsel”) to confirm that Appellant was not
contesting that the Commonwealth could present evidence to convict
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Appellant of the obstruction and harassment charges. Trial counsel agreed
and noted that “[a]s currently construed, [Appellant] believes with the
evidence that he would be convicted under the statute.” Notes of Testimony
(N.T.), 12/29/23, at 6 (emphasis added).
The trial court accepted Appellant’s plea and sentenced him to three
years’ reporting probation. Immediately following the sentencing, trial
counsel advised the trial court that Appellant wished to appeal the
constitutionality of the Wiretap Act. Trial counsel then requested that
Appellant’s sentence be deferred for thirty days to allow Appellant to appeal
that issue. N.T., 12/29/23, at 6. The trial court’s sentencing order indicates
that Appellant’s sentencing was deferred until January 30, 2024 to give
Appellant the opportunity to appeal his sentence.
On January 22, 2024, Appellant filed a pro se notice of appeal. On
January 24, 2024, the trial court directed Appellant to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On January
30, 2024, Appellant filed a pro se concise statement, claiming trial counsel
“gave bad advice and was incompetent” in advising Appellant to enter a nolo
contendere plea when trial counsel knew that Appellant planned to appeal to
challenge the constitutionality of Pennsylvania’s Wiretap Act. Appellant also
indicated that trial counsel had informed him after sentencing that he was not
qualified to serve as an appellate attorney and had advised Appellant to retain
other counsel to file an appeal or to seek the appointment of a public defender.
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On February 7, 2024, Appellant filed a pro se motion to remove trial
counsel from his representation and asserted that he would proceed pro se on
appeal. Appellant provided the trial court with a copy of an email from trial
counsel indicating that he would not represent Appellant on appeal. On March
1, 2024, trial counsel filed a petition to withdraw his representation, citing “a
fundamental breakdown of the attorney-client relationship.” Motion to
Withdraw, 3/1/24, at 2.
On March 11, 2024, the trial court held a hearing to evaluate Appellant’s
request to proceed pro se pursuant to Commonwealth v. Grazier, 552 Pa.
9, 713 A.2d (1998). Thereafter, the trial court granted Appellant’s motion to
remove trial counsel and appointed the Public Defender’s Office to represent
Appellant on appeal. Appellate counsel filed a petition to withdraw her
representation along with an Anders brief.
As a preliminary matter, we note that Appellant filed a pro se notice of
appeal while still represented by trial counsel. As our courts do not permit
hybrid representation, “pro se filings submitted by counseled defendants are
generally treated as legal nullities.” Commonwealth v. Williams, 241 A.3d
353, 355 (Pa.Super. 2020) (citing Commonwealth v. Ali,
608 Pa. 71,
10
A.3d 282 (2010)). However, our courts are required to docket a pro se notice
of appeal from a counseled defendant, as the acceptance of this filing protects
the defendant’s constitutional right to appeal. Commonwealth v. Williams,
151 A.3d 621, 624 (Pa.Super. 2016). In addition,
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a counseled defendant may act on his own to protect important
rights where counsel remains technically attached to the case but
is no longer serving the client's interest. See Williams, supra.
Thus, where counsel has effectively discontinued working on a
defendant's behalf, this Court has concluded that a pro se filing
does not offend considerations of hybrid representation. See
Commonwealth v. Leatherby, 116 A.3d 73 (Pa.Super. 2015).
Commonwealth v. Williams,
241 A.3d 353, 355 (Pa.Super. 2020).
In this case, Appellant’s pro se notice of appeal was properly docketed
in this case to protect his right to appeal. Further, Appellant was effectively
unrepresented after the judgment of sentence was entered as trial counsel
informed Appellant that he would not represent him on appeal and advised
him to seek other counsel. Thus, Appellant was proceeding in an essentially
unrepresented capacity and the principles of hybrid representation were not
implicated. Thus, the appeal in this case is properly before this Court.
We also must evaluate appellate counsel’s request to withdraw before
we reach the merits of Appellant’s issues on appeal to determine whether
appellate counsel has complied with the procedures set forth in Anders and
its progeny. Commonwealth v. Yorgey, 188 A.3d 1190, 1195 (Pa.Super.
2018) (en banc) (citing Commonwealth v. Goodwin,
928 A.2d 287, 292
(Pa.Super. 2007) (en banc)). To do so, we are guided by the following
principles:
Direct appeal counsel seeking to withdraw under Anders must file
a petition averring that, after a conscientious examination of the
record, counsel finds the appeal to be wholly frivolous. Counsel
must also file an Anders brief setting forth issues that might
arguably support the appeal along with any other issues necessary
for the effective appellate presentation thereof ....
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Anders counsel must also provide a copy of the Anders petition
and brief to the appellant, advising the appellant of the right to
retain new counsel, proceed pro se or raise any additional points
worthy of this Court's attention.
If counsel does not fulfill the aforesaid technical requirements of
Anders, this Court will deny the petition to withdraw and remand
the case with appropriate instructions (e.g., directing counsel
either to comply with Anders or file an advocate's brief on
Appellant's behalf). By contrast, if counsel's petition and brief
satisfy Anders, we will then undertake our own review of the
appeal to determine if it is wholly frivolous.
Commonwealth v. Falcey, 310 A.3d 313, 314–15 (Pa.Super. 2024) (quoting
Commonwealth v. Wrecks,
931 A.2d 717, 720-21 (Pa.Super. 2007)
(citations omitted)).
Our Supreme Court has also set forth substantive requirements for
counsel’s Anders brief, which 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 would arguably support 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.” Commonwealth v.
Santiago, 602 Pa. 159, 178-79,
978 A.2d 349, 361 (2009)). Therefore, a
fully compliant Anders brief 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.”
Id.
If counsel meets the foregoing obligations, “it then becomes the
responsibility of the reviewing court to make a full examination of the
proceedings and make an independent judgment to decide whether the appeal
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is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5. This Court has
also explained that:
the Anders procedure requires this Court to review “the entire
record with consideration first of the issues raised by counsel. ...
[T]his review does not require this Court to act as counsel or
otherwise advocate on behalf of a party. Rather, it requires us
only to conduct a review of the record to ascertain if[,] on its face,
there are non-frivolous issues that counsel, intentionally or not,
missed or misstated. We need not analyze those issues of
arguable merit; just identify them, deny the motion to withdraw,
and order counsel to analyze them.
Yorgey, 188 A.3d at 1197.
In this case, appellate counsel has submitted both a petition to withdraw
and an Anders brief averring that this appeal is frivolous. Attached to
counsel’s application is a letter dated May 10, 2024, which properly advised
Appellant of his right to retain alternative counsel or raise supplemental
arguments on his own.1 Our review confirms that the Anders brief submitted
provides an adequate summary of the factual and procedural history of this
matter, along with a discussion of governing Pennsylvania law as applied to
these circumstances. Counsel explains why she believes the appeal is
frivolous based on applicable law. See id.
Based upon the foregoing, we conclude that appellate counsel complied
with the procedural requirements attendant to Anders. Therefore, we
proceed to review the merits of the issue raised in appellate counsel’s brief
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1 Appellant has not tendered a response to appellate counsel’s application to
withdraw.
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and conduct an independent review of the record to determine if there are any
additional, non-frivolous issues not raised by counsel. Yorgey, supra.
In the Anders brief, appellate counsel indicated that Appellant wished
to raise two constitutional challenges to the two-party consent requirement of
Pennsylvania’s Wiretap Act (18 Pa.C.S.A. § 5701, et seq.). However, appellate
counsel argued that these issues were waived as Appellant did not preserve
them before the trial court, but instead chose to enter a nolo contendere plea
to Obstructing the Administration of Law and Harassment.
We agree with appellate counsel’s assessment that Appellant’s
underlying constitutional challenges are waived on direct appeal. We note
that “in terms of its effect upon a case, a plea of nolo contendere is treated
the same as a guilty plea.” Commonwealth v. Prieto, 206 A.3d 529, 533–
34 (Pa.Super. 2019) (citation omitted).2 Generally, “upon entry of a 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 what has been
termed the ‘legality’ of the sentence imposed[.]” Commonwealth v.
Eisenberg,
626 Pa. 512,
98 A.3d 1268, 1275 (2014) (citation omitted).
Neither of Appellant’s constitutional challenges relate to the jurisdiction
of the court, the validity of the plea, or any aspects of Appellant’s sentence.
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2 “[A] plea of nolo contendere is ‘a plea by which a defendant does not
expressly admit his guilt, but nonetheless waives his right to a trial and
authorizes the court for purposes of sentencing to treat him as if he were
guilty.’” Commonwealth v. V.G., 9 A.3d 222, 226 (Pa.Super. 2010) (quoting
North Carolina v. Alford,
400 U.S. 25, 36 (1970)) (other citation omitted).
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As Appellant entered a nolo contendere plea and was sentenced to the
negotiated sentence of three years’ probation, Appellant’s challenges to the
constitutionality of the applicable statutes were waived.
However, in our independent review of the record, we observe that
Appellant also claimed in his pro se concise statement that trial counsel “gave
bad advice and was incompetent” in advising Appellant to enter a nolo
contendere plea when trial counsel knew that Appellant planned to appeal to
challenge the constitutionality of Pennsylvania’s wiretap law. This assertion
is raising the ineffectiveness of trial counsel in advising Appellant to enter a
nolo contendere plea while simultaneously allowing Appellant to proceed upon
the mistaken belief that he could raise a constitutional challenge to the
underlying statute on direct appeal.
As a general rule, “claims of ineffective assistance of counsel are to be
deferred to PCRA review, … such claims should not be reviewed upon direct
appeal.” Commonwealth v. Holmes, 621 Pa. 595,
79 A.3d 562 (2013)
(citing Commonwealth v. Grant,
572 Pa. 48,
813 A.2d 726 (2002)).
However, the Holmes Court recognized two exceptions to the general rule
that ineffectiveness claims are only cognizable in a PCRA petition: (1) where
the claim of ineffective assistance of counsel “is apparent from the record and
meritorious to the extent that immediate consideration [of the claim] best
serves the interests of justice,” or (2) where there is good cause shown and
the defendant has expressly and knowingly waived his right to seek PCRA
review. See id. at 563-64. Our Supreme Court adopted a third exception,
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which “requir[es] trial courts to address claims challenging trial counsel's
performance where the defendant is statutorily precluded from obtaining
subsequent PCRA review.” Commonwealth v. Delgros, 646 Pa. 27, 42,
183
A.3d 352, 361 (2018).
Appellate counsel noted in her Anders brief that she believed “[trial]
counsel was ineffective from the record for advising the Appellant that he
could appeal the constitutionality of a statute [Appellant] wished to challenge
after entering a nolo contendere plea … and for failing to file post-sentence
motions to withdraw the plea.” Anders brief, at 15. The trial court also
indicated in its 1925(a) opinion that “[i]t appears as though the Appellant was
under the mistaken belief that, while admitting he understood the law as
currently instructed, his no contest plea would be a vehicle to challenge the
constitutionality of the law on appeal.” Trial Court Opinion, 4/3/24, at 4.
While appellate counsel opined that “trial counsel’s ineffectiveness may
be apparent from the record,” appellate counsel made no attempt to argue
that Appellant’s ineffectiveness claims could be reviewed on direct appeal
under the Holmes exception where counsel’s ineffectiveness is “apparent
from the record and meritorious to the extent that immediate consideration
best serves the interests of justice.” See Holmes, supra.
Based on our review of the record, we cannot say Appellant’s pro se
attempt to raise this ineffectiveness claim on direct appeal is so clearly devoid
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of merit as to warrant classifying this appeal as frivolous.3 As such, we must
remand for appellate counsel to file an advocate’s brief within thirty (30) days
of this decision. The Commonwealth will then have thirty (30) days to file a
responsive brief. We will retain panel jurisdiction.
Petition to withdraw denied. Remanded for further proceedings
consistent with this decision. Jurisdiction retained.
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3 In similar circumstances, this Court has recognized that an appellant’s “Sixth
Amendment right to zealous advocacy on a first appeal forecloses this court
from simply deciding [a non-frivolous issue] on the merits on the basis of
counsel's Anders brief, filed together with his petition to withdraw.”
Commonwealth v. Blauser, 166 A.3d 428, 434 (Pa.Super. 2017).
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