J-S28016-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARKUS TROY CARWELL                        :
                                               :
                       Appellant               :   No. 1992 MDA 2017


         Appeal from the Judgment of Sentence, November 21, 2017,
             in the Court of Common Pleas of Lancaster County,
            Criminal Division at No(s): CP-36-CR-0003834-2017.


BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY KUNSELMAN, J.:                              FILED JULY 05, 2018

       Marcus Troy Carwell appeals from the judgment of sentence imposed

after he pled guilty to burglary, robbery (inflicting serious bodily injury),

criminal conspiracy to commit robbery, and aggravated assault (bodily injury

with a deadly weapon).1 Carwell’s counsel has filed a petition to withdraw, in

which she alleges that this direct appeal is wholly frivolous. Agreeing with

counsel’s assessment, we grant her petition to withdraw and affirm Carwell’s

judgment of sentence.




____________________________________________


118 Pa.C.S.A. § 3502(a)(1), 18 Pa.C.S.A. § 3701(a)(1)(i), 18 Pa.C.S.A. §
903 and 18 Pa.C.S.A. § 2702(a)(4).
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        The Commonwealth originally charged Carwell with burglary, robbery,

criminal conspiracy, aggravated assault, simple assault2, terroristic threats3

and unlawful restraint.4 These charges arose from an incident in which Carwell

entered the victim’s home with others, threatened the victim while holding a

gun to him, and tied him up.

        Initially, Carwell was represented by Attorney Daniel Kaye from the

public defender’s office. At the pre-trial conference held on October 23, 2017,

Attorney Raymond Stout entered his appearance to represent Carwell.

        On November 21, 2017, Carwell entered a negotiated plea of guilty to

burglary, robbery, criminal conspiracy, and aggravated assault; the three

other charges were nol prossed. The substantial fines associated with these

charges also were waived. In accordance with the plea agreement, the trial

court imposed an aggregate sentence of eight and one-half to seventeen years

of incarceration along with an order for restitution.

        On December 21, 2017, Carwell’s appellate counsel, Attorney Diana C.

Kelleher, filed a Notice of Appeal based upon a letter from Carwell indicating

his desire to appeal. On January 16, 2018, counsel timely filed a statement

of intent to file an Anders/McClendon brief in lieu of a statement of errors

complained of on appeal.          The trial court filed its Opinion Sur Appeal on

January 22, 2018. Carwell filed no response.

____________________________________________


2   18 Pa.C.S.A. § 2701(a)(3).
3   18 Pa.C.S.A. § 2706.
4   18 Pa.C.S.A. § 2902.

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      “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.”    Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.

2010).   In Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), the

Pennsylvania Supreme Court explained what is required to be included in an

Anders brief:

         [T]he Anders brief that accompanies court-appointed
         counsel’s petition to withdraw . . . 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, 978 A.2d at 361.

      “While the Supreme Court in Santiago, set forth the new requirements

for an Anders brief, which are quoted above, the holding did not abrogate the

notice requirements set forth in [Commonwealth v. Millisock, 873 A.2d

748, 751 (Pa. Super. 2005)] that remain binding precedent.       Daniels, 999

A.2d at 594. Thus, counsel seeking to withdraw on direct appeal must meet

the following obligations to his or her client:

         Counsel also must provide a copy of the Anders brief to his
         client. Attending the brief must be a letter that advises the
         client of his right to: (1) retain new counsel to pursue the
         appeal; (2) proceed pro se on appeal; or (3) raise any points
         that the appellant deems worthy of the court[’]s attention
         in addition to the points raised by counsel in the Anders
         brief.

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Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (citation

omitted).

      Our review reveals that Carwell’s counsel substantially complied with

the requirements of Anders and Santiago. “Once counsel has satisfied the

above 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.”         Commonwealth v.

Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc) (citation omitted).

Stated differently, this Court must conduct an independent review of the

record to discern if there are any additional, non-frivolous issues overlooked

by counsel. Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super.

2015).

      In her brief, counsel summarizes Carwell’s primary issue for appeal as

whether his plea was made knowingly, voluntarily and intelligently and

therefore valid. See Anders Brief at 9-10. Specifically, Carwell claims that

he was forced into taking the plea and, on appeal, desires to challenge the

voluntariness of it. Our review of the record, however, reveals that contrary

to his argument, Carwell knowingly, voluntarily and intelligently entered his

negotiated guilty plea.

      In order to ensure that a defendant understands the significance of the

plea and its consequences, the trial court is required to inquire into the

following areas during the plea colloquy: “(1) the nature of the charges; (2)

the factual basis of the plea; (3) the right to trial by jury; (4) the presumption

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of innocence; (5) the permissible range of sentences; and (6) the judge’s

authority to depart from any recommended sentence.” Commonwealth v.

Baney, 860 A.2d 127, 132 (Pa.Super. 2004) (quoting Commonwealth v.

Muhammad, 794 A.2d 378 (Pa. Super. 2002)); Pa.R.Crim.P. 590, Comment.

On appeal, “[t]his Court evaluates the adequacy of the guilty plea colloquy

and the voluntariness of the resulting plea by examining the totality of the

circumstances surrounding the entry of that plea.” Baney, 794 A.2d at 132.

      The record in this case shows that the trial court conducted a thorough,

on-the-record inquiry during the guilty plea colloquy. The trial court covered

each of the areas required by law.       Thus, Carwell clearly entered his plea

voluntarily.

      This notwithstanding, Carwell claims that at the pre-trial conference, the

trial judge threatened Carwell that if he exercised his right to a trial, the judge

would impose maximum sentences on each count and run them separately.

See Anders Brief at 10. Our review of the pre-trial conference transcript

reveals, as did counsel’s review, that the trial judge made no such statement

or even any other statement that could be construed as such. Moreover, when

asked on his written colloquy whether he was threatened or forced to plead

guilty, Carwell answered “no”.     He further stated that he was making the

decision to plead guilty of his own free will.       An “appellant is bound by

statements made during plea colloquy and may not successfully assert claims

that contradict such statements.” Baney, 860 A.2d at 132.




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   Carwell further claims that both his trial counsel and plea counsel were

ineffective, and that, somehow, this resulted in his plea being involuntarily

given. See Anders Brief at 10. Carwell was originally represented by an

attorney from the public defender’s office.        At the pre-trial conference,

however, that attorney was excused from the case, and replaced by another,

who represented Carwell through his plea. In particular, Carwell claims that

his plea counsel told him that he could not file any motion, because his first

attorney had put him in a jam, and that if he went to trial, he would lose.

      It is well-established that, unless one of the limited exceptions is present

in a particular case and the defendant has waived his right to PCRA review,

neither of which exist herein, “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, 79 A.3d 562, 576 (Pa. 2013).

Consequently, such claims raised by Carwell are premature, and we will not

address them in his direct appeal.

      Considering the totality of the circumstances surrounding Carwell’s plea,

we conclude that Carwell entered a knowing, intelligent and voluntary guilty

plea. We, therefore, agree with counsel’s assessment that the issues raised

by Carwell are frivolous. Furthermore, our independent review of the record

reveals no other non-frivolous bases for appeal. Flowers, supra. Thus, this

appeal is “wholly frivolous.”

      Petition to withdraw granted. Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/05/2018




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