J-S32033-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MATTHEW GRAY,

                            Appellant                 No. 2379 EDA 2015


              Appeal from the Judgment of Sentence July 14, 2015
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0004644-2015


BEFORE: BOWES, J., MUNDY, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                   FILED MAY 18, 2016

        Appellant, Matthew Gray, appeals from the judgment of sentence

imposed following his negotiated guilty plea to aggravated assault. 1 Counsel

has filed an Anders2 brief, and requested permission to withdraw.3          We

affirm the judgment of sentence and grant counsel’s petition to withdraw.

        On July 14, 2015, Appellant entered a counseled guilty plea to

aggravated assault and agreed to the following factual basis:

        [O]n February 6, 2015[,] police arrived at 1909 East Oakdale
        believing they were responding to a burglary in progress. It was
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 2702(a).
2
    Anders v. California, 386 U.S. 738 (1967).
3
    Appellant has not responded to the petition to withdraw.
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     determined that it was instead a disturbance at that property.
     [Appellant] was attempting to get into a property where he had
     once lived and he appeared to be intoxicated or under the
     influence of some substance.

          [Appellant] was asked to leave the area by police and was
     even offered a ride out of the area by police. [Appellant] refused
     and poked Police Officer Brandish in the face with his finger. At
     which point police got out of the patrol vehicle and told
     [Appellant] he was under arrest.

          [Appellant] then attacked the officer, grabbed him by the
     neck and pushed him up against the patrol vehicle[. A] struggle
     ensued and [Appellant] resisted arrest by disregarding verbal
     commands and pulling his arms from police grasp.

           Police were eventually able to subdue [Appellant] after
     several moments of resistance. Upon securing him in the back
     of the vehicle [while] police [] wait[ed] for a wagon, [Appellant]
     then attacked Officer Brandish by kicking him in the chest and
     causing him to fall to the ground. [Appellant] sprung out of the
     vehicle with handcuffs on and continued to kick the officer
     numerous times in the body and chest as he was on the ground.

           The officer was able to [again secure Appellant] by
     deploying his Tazer one time. [Appellant] was transported to
     Episcopal Hospital for treatment of injuries [suffered] during this
     altercation. Police Officer Bran[d]ish did sustain bleeding to his
     neck, head and chin as well as scratches.

(N.T. Plea Hearing and Sentencing, 7/14/15, at 17-18).

     Prior to recitation of the facts Appellant completed and signed a

written guilty plea colloquy.   The court conducted an oral colloquy during

which it referenced the written colloquy.   After Appellant admitted to the

factual basis, the court accepted his plea as knowing, intelligent and

voluntary. (See id. at 18-19). The trial court then accepted and imposed

the negotiated sentence of four years of probation and 160 hours of




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community service to be completed within six months.4      (See id. at 5, 7,

19). The sentence was below the standard range. (See id. at 4).

       Appellant filed a timely notice of appeal on August 7, 2015. Pursuant

to the court’s order, he filed a concise statement of errors complained of on

appeal on September 9, 2015, and filed a supplemental statement, with

leave of court, on October 5, 2015. See Pa.R.A.P. 1925(b). The trial court

filed an opinion on October 8, 2015. See Pa.R.A.P. 1925(a).

       Before reaching the merits of the issue raised in the Anders brief, we

address counsel’s petition to withdraw. See Commonwealth v. Rojas, 874

A.2d 638, 639 (Pa. Super. 2005) (quoting Commonwealth v. Smith, 700

A.2d 1301, 1303 (Pa. Super. 1997)) (“When faced with a purported Anders

brief, this Court may not review the merits of the underlying issues without

first passing on the request to withdraw.”).

       To withdraw pursuant to Anders, counsel must: 1) petition the Court

for leave to withdraw, certifying that after a thorough review of the record,

counsel has concluded the issues to be raised are wholly frivolous; 2) file a

brief referring to anything in the record that might arguably support the

appeal; and 3) furnish a copy of the brief to the appellant and advise him or

her of the right to obtain new counsel or file a pro se brief to raise any
____________________________________________


4
  In exchange for his guilty plea, the Commonwealth nolle prossed
Appellant’s charges for simple assault, 18 Pa.C.S.A. § 2701(a), recklessly
endangering another person, 18 Pa.C.S.A. § 2705, and resisting arrest, 18
Pa.C.S.A. § 5104.



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additional points that the appellant deems worthy of review.              See

Commonwealth v. Garang, 9             A.3d 237, 240      (Pa. Super. 2010).

Thereafter, this Court independently reviews the record and issues. See id.

      Here, on review, it appears that counsel has substantially complied

with Anders, supra, and Commonwealth v. Santiago, 978 A.2d 349, 361

(Pa. 2009) (holding counsel must state reasons for concluding that appeal is

frivolous). Counsel has also substantially complied with Commonwealth v.

Millisock, 873 A.2d 748, 752 (Pa. Super. 2005), by filing a copy of the

notice letter advising Appellant of his rights. Therefore, we will undertake

our own independent review of the appeal to determine if it is wholly

frivolous.

      In the Anders brief, Appellant’s counsel presents two issues that

might arguably support an appeal:

      1. Was the guilty plea in this matter made knowingly and
      voluntarily?

      2. Was the sentence of [four] years[’] probation imposed by the
      lower court illegal or excessive?

(Anders Brief, at 3).

      In his first issue, Appellant claims that his guilty plea was not knowing

or voluntary because the court did not address all of the elements that are

essential to a valid plea colloquy during its oral colloquy of Appellant. (See

id. at 10-11). We disagree.




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      Preliminarily, we note that Appellant failed to object to his plea at the

colloquy or file a timely motion to withdraw his guilty plea, and accordingly

he has waived any challenge to the plea. See Commonwealth v. Lincoln,

72 A.3d 606, 609-10 (Pa. Super. 2013), appeal denied, 87 A.3d 319 (Pa.

2014) (“A defendant wishing to challenge the voluntariness of a guilty plea

on direct appeal must either object during the plea colloquy or file a motion

to withdraw the plea within ten days of sentencing. [See] Pa.R.Crim.P.

720(A)(1), (B)(1)(a)(i). Failure to employ either measure results in waiver.”)

(case citation omitted).

      Moreover, even if not waived, Appellant has not demonstrated that he

entered into an unknowing or involuntary plea.

            The law does not require that a defendant be pleased with
      the outcome of his decision to enter a plea of guilty. All that is
      required is that the defendant’s decision to plead guilty be
      knowingly, voluntarily and intelligently made.

                Pennsylvania has constructed its guilty plea
         procedures in a way designed to guarantee assurance that
         guilty pleas are voluntarily and understandingly tendered.
         The entry of a guilty plea is a protracted and
         comprehensive proceeding wherein the court is obliged to
         make a specific determination after extensive colloquy on
         the record that a plea is voluntarily and understandingly
         tendered. A guilty plea colloquy must include inquiry as to
         whether (1) the defendant understood the nature of the
         charge to which he is pleading guilty; (2) there is a factual
         basis for the plea; (3) the defendant understands that he
         has the right to a jury trial; (4) the defendant understands
         that he is presumed innocent until he is found guilty; (5)
         the defendant is aware as to the permissible range of
         sentences; and (6) the defendant is aware that the judge
         is not bound by the terms of any plea agreement unless he



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        accepts such agreement. Inquiry into these six areas is
        mandatory in every guilty plea colloquy.

     In order for a guilty plea to be constitutionally valid, 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. Therefore,
     [w]here the record clearly demonstrates that a guilty plea
     colloquy was conducted, during which it became evident that the
     defendant understood the nature of the charges against him, the
     voluntariness of the plea is established.

Commonwealth v. Myers, 642 A.2d 1103, 1105 (Pa. Super. 1994)

(citations and quotation marks omitted).

     Here, Appellant pleaded guilty after signing a detailed written guilty

plea colloquy, in which he acknowledged that he understood the nature of

the charges against him, the factual basis for his plea, his right to a jury

trial, his presumption of innocence, the permissible sentencing range, and

that the judge was not bound by the terms of the plea bargain.                  (See

Written Guilty Plea Colloquy, 7/14/15, at 1-3). Additionally, the trial court

conducted an oral colloquy at the plea hearing, during which Appellant

acknowledged that he understood the rights that he was waiving, the

presumption of innocence, the maximum sentence, and the elements of the

offense, and confirmed that he had understood and signed the written

colloquy. (See N.T. Hearing, 7/14/15, at 4, 16).

     The   record    demonstrates     that    the    trial   court   complied   with

Pennsylvania’s   guilty   plea   procedures   in    its   colloquy   and   Appellant

understood the natures of the charges against him. See Myers, supra at

1105. Accordingly, the record supports that Appellant’s plea was voluntary

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and knowing. See id. Appellant’s first issue is wholly frivolous and would

not merit relief.

      Appellant’s second issue challenges the discretionary aspects of his

sentence. (See Anders Brief, at 12-13). It is well-established that where

an appellant challenges the discretionary aspects of a sentence there is no

automatic right to appeal, and an appellant’s appeal should be considered to

be a petition for allowance of appeal. See Commonwealth v. W.H.M., 932

A.2d 155, 163 (Pa. Super. 2007).

      An appellant challenging the discretionary aspects of his
      sentence must invoke this Court’s jurisdiction by satisfying a
      four-part test:

               [W]e conduct a four-part analysis to determine: (1)
         whether appellant has filed a timely notice of appeal, see
         Pa.R.A.P. 902 and 903; (2) whether the issue was properly
         preserved at sentencing or in a motion to reconsider and
         modify sentence, see Pa.R.Crim.P. [720]; (3) whether
         appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
         (4) whether there is a substantial question that the
         sentence appealed from is not appropriate under the
         Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (case

citation omitted).

      “The determination of whether a substantial question exists must be

determined on a case-by-case basis.”     Commonwealth v. Hartman, 908

A.2d 316, 320 (Pa. Super. 2006) (citation omitted).          This Court has

explained that: “[a] substantial question exists where an appellant advances

a colorable argument that the sentencing judge’s actions [were] either: (1)


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inconsistent with a specific provision of the Sentencing Code; or (2) contrary

to the fundamental norms which underlie the sentencing process.”          Id.

(citation omitted).

      Here, Appellant has met the first prong of this test by timely filing a

notice of appeal.       However, he has failed to preserve his discretionary

aspects of sentencing issue at sentencing or in a timely-filed motion to

reconsider sentence pursuant to Pa.R.Crim.P. 720 and has failed to include a

statement of reasons relied on for appeal in the Anders brief or in response

to the petition to withdraw. See Moury, supra at 170. Appellant’s claim is

waived.     Moreover, “where the guilty plea agreement between the

Commonwealth and a defendant contains a negotiated sentence, as is the

case herein, and where that negotiated sentence is accepted and imposed by

the court, a defendant is not allowed to challenge the discretionary aspects

of the sentence.”       Commonwealth v. Byrne, 833 A.2d 729, 735 (Pa.

Super. 2003) (citations omitted).     Accordingly, Appellant’s second issue is

waived.

      We agree with counsel that Appellant’s claims are wholly frivolous. On

independent review, we find no other non-frivolous issues that would merit

relief for Appellant.

      Judgment of sentence affirmed. Petition to withdraw granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/18/2016




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