J-S14024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

ROBERT D. STALKER,

                            Appellant                     No. 1562 EDA 2014


            Appeal from the Judgment of Sentence of April 21, 2014
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0008251-2013


BEFORE: DONOHUE, OLSON AND MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                                   FILED APRIL 01, 2015

        Appellant, Robert D. Stalker, appeals from the judgment of sentence

entered on April 21, 2014, following the trial court’s acceptance of his nolo

contendere plea to resisting arrest.1 On appeal, counsel filed an application

to    withdraw    from      representation     pursuant   to   Commonwealth   v.

McClendon, 434 A.2d 1185 (Pa. 1981) and its federal precursor, Anders v.

California, 386 U.S. 738 (1967), as well as an Anders brief on Appellant’s

behalf. Upon careful consideration, we grant counsel leave to withdraw and

affirm Appellant’s conviction.

        We briefly summarize the facts of this case, as gleaned from the

certified record, as follows.       On November 15, 2013, for safety reasons,

____________________________________________


1
    18 Pa.C.S.A. § 5104.
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police asked Appellant several times to leave the area of a construction site

at the Darby Fire Company #1 located at Quarry Street in Delaware County,

Pennsylvania. At one point, Appellant reached inside his jacket and a police

struggle ensued.      Appellant initially wrestled with a police officer and then

became rigid and would not allow the officer to place him in restraints.

Police transported him to the police station and once Appellant’s wrist

restraints were removed, he struck the arresting officer again.            Once

subdued, Appellant appeared to have a seizure and medics restrained

Appellant and removed him from the police station on a stretcher.             At

Fitzgerald Mercy Hospital, Appellant yelled, cursed, spat, and fought against

his restraints.

       Accordingly, the Commonwealth charged Appellant with various crimes

including, inter alia, defiant trespass, criminal trespass, aggravated assault,

simple assault, disorderly conduct, and resisting arrest. On April 21, 2014,

as per a plea agreement with the Commonwealth, Appellant pled nolo

contendere to resisting arrest and the remaining charges were dismissed.

On that same day, the trial court imposed the negotiated sentence of time

served to 23 months of imprisonment. This timely appeal resulted.2


____________________________________________


2
  Appellant filed a timely notice of appeal on May 19, 2014. The trial court
ordered Appellant to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b).         In accordance with Pa.R.A.P.
1925(c)(4), counsel for Appellant filed a statement that he intended to file
an Anders brief with this Court.



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      On appeal, counsel filed an Anders brief in this Court and an

accompanying application to withdraw as counsel.          The Anders brief

presents one potential issue for our review:

         Whether Appellant’s sentence should be vacated because
         the [t]rial [c]ourt failed to inform Appellant of the legal
         standard to be invoked if Appellant chose to withdraw his
         plea?

Appellant’s Brief at 2.

      “Initially, we note that we may not address the merits of the issue

raised on appeal      without first reviewing the    request to   withdraw.”

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en

banc).   Counsel must: 1) petition the court for leave to withdraw stating

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

determined that the appeal would be frivolous; 2) furnish a copy of the brief

to the defendant; and 3) advise the defendant that he or she has the right

to retain private counsel or raise additional arguments that the defendant

deems worthy of the court's attention. Id. (citation omitted).

      Herein, counsel's petition to withdraw from representation states that

he reviewed the record and concluded that the appeal is frivolous.

Additionally, counsel notified Appellant that he was seeking permission to

withdraw and furnished Appellant with copies of the petition to withdraw and

Anders brief, and advised Appellant of his right to retain new counsel or

proceed pro se to raise any points he believes worthy of this Court's




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attention.3 Accordingly, counsel has satisfied the procedural requirements of

Anders.

       Having concluded that counsel has complied with the procedural

mandates of Anders, we now determine whether counsel's Anders brief

meets the substantive dictates.           In the Anders brief that accompanies

court-appointed counsel's petition to withdraw, counsel 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.

Id. 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.     Id. (citation omitted).        Counsel has complied with these

directives. We now turn to the issue presented on appeal.

       “Appellant contends that the failure to inform [him] of the standard

that would apply to a petition to withdraw the plea is tantamount to failure

to determine whether he understood and voluntarily accepted the terms of

the plea.” Appellant’s Brief at 6, citing Pa.R.Crim.P. 590(B)(2).

       On this issue, we have recently determined:

          To be valid, a guilty plea must be knowingly, voluntarily and
          intelligently entered. A manifest injustice occurs when a
____________________________________________


3
    Appellant has not responded to counsel’s petition to withdraw.



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        plea is not tendered knowingly, intelligently, voluntarily, and
        understandingly.     The Pennsylvania Rules of Criminal
        Procedure mandate pleas be taken in open court and
        require the court to conduct an on-the-record colloquy to
        ascertain whether a defendant is aware of his rights and the
        consequences of his plea. Under Rule 590, the court should
        confirm, inter alia, that a defendant understands: (1) the
        nature of the charges to which he is pleading guilty; (2) the
        factual basis for the plea; (3) he is giving up his right to
        trial by jury; (4) and the presumption of innocence; (5) he
        is aware of the permissible ranges of sentences and fines
        possible; and (6) the court is not bound by the terms of the
        agreement unless the court accepts the plea. The reviewing
        Court will evaluate the adequacy of the plea colloquy and
        the voluntariness of the resulting plea by examining the
        totality of the circumstances surrounding the entry of that
        plea. Pennsylvania law presumes a defendant who entered a
        guilty plea was aware of what he was doing, and the
        defendant bears the burden of proving otherwise.

        Nevertheless, [k]nowledge of the procedural aspects of the
        right to withdraw the plea does not bear upon whether it
        was voluntary in the first instance. If the colloquy properly
        informs the defendant of the rights he is waiving by virtue
        of the plea, and the defendant knows his sentence, the
        guilty plea is not involuntary or unknowing simply because
        the court failed to inform the defendant beforehand of the
        standard that would apply to a petition to withdraw the
        plea. In other words, the integrity of a defendant's plea
        remains intact even if the court failed to inform the
        defendant of how, when, or under what circumstances the
        plea could be withdrawn.

Commonwealth v. Prendes, 97 A.3d 337, 352-353 (Pa. Super. 2014),

appeal denied, 105 A.3d 736 (Pa. 2014) (internal citations and quotations

omitted).

     Upon review of the record and the totality of circumstances, we

conclude the trial court confirmed the Rule 590 prerequisites prior to

accepting Appellant’s plea. Hence, Appellant’s plea was tendered knowingly,

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intelligently, voluntarily, and understandingly.   Under Prendes, the plea

remains intact regardless of whether the trial court informed Appellant

beforehand of the standard that would apply to a petition to withdraw the

plea. Accordingly, we conclude Appellant’s issue is frivolous.

      Further, after an independent review of the entire record, we see

nothing that might arguably support this appeal. See Commonwealth v.

Vilsaint, 893 A.2d 753, 758 n.6 (Pa. Super. 2006) (“The filing of the

Anders brief triggers the duty of our Court to conduct an independent

review of the entire record to make sure counsel has fully represented his

client's interest.”). The appeal is, therefore, wholly frivolous. Accordingly,

we affirm Appellant’s judgment of sentence and grant counsel’s petition for

leave to withdraw appearance.

      Petition for leave to withdraw as counsel granted.         Judgment of

sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/1/2015




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