J-S15034-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

BENJAMIN WRIGHT,

                            Appellant                 No. 792 EDA 2015


           Appeal from the Judgment of Sentence February 20, 2015
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No.: CP-51-CR-0000340-2011


BEFORE: BENDER, P.J.E., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                               FILED JUNE 17, 2016

        Appellant, Benjamin Wright, appeals from the judgment of sentence

entered on February 20, 2015, following his open guilty plea to possession

with intent to deliver, conspiracy, and possession of a firearm prohibited.1

Appellant’s counsel has filed a petition to withdraw and a brief pursuant to

Anders v. California, 386 U.S. 738 (1967) and Commonwealth v.

Santiago, 978 A.2d 349, 351 (Pa. 2009), stating that the appeal is wholly

frivolous. We affirm the judgment of sentence and grant counsel’s petition

to withdraw.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. § 903(c), 18 Pa.C.S.A. § 6105,
respectively.
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        We take the underlying facts and procedural history in this matter

from our independent review of the certified record. On December 8, 2014,

Appellant entered an open guilty plea to the aforementioned charges. These

arose from Appellant’s 2010 sale of drugs to a confidential informant and his

unlawful possession of a loaded firearm despite his prior felony convictions.

On February 20, 2015, the trial court sentenced Appellant, in the mitigated

range, to an aggregate term of incarceration of not less than eleven and

one-half nor more than twenty-three months, to be followed by a

consecutive term of probation.            The trial court specifically stated that

Appellant was not to receive credit for time-served. (See N.T. Sentencing,

2/20/15, at 17).

        On February 23, 2015, the Commonwealth filed a motion to reconsider

sentence.    A second sentencing hearing took place on March 4, 2015.           At

that hearing, Appellant waived his right to receive credit for time served and

the trial court re-imposed its earlier sentence. (N.T. Sentencing, 3/04/15, at

8-9).    The instant, timely appeal followed.         On March 18, 2015, the trial

court ordered Appellant to file a concise statement of errors complained of

on appeal.      See Pa.R.A.P. 1925(b).           On April 8, 2015, counsel filed a

statement of intent to file an Anders2 brief. See Pa.R.A.P. 1925(c)(4). On



____________________________________________


2
    See Anders, supra.



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April 10, 2015, the trial court issued an order to transmit the record in place

of an opinion.

      On March 23, 2016, this Court remanded the matter to the trial court

because, while counsel had filed an Anders brief, he had not filed a petition

to withdraw as counsel. On March 31, 2016, counsel filed the petition.

      On appeal, the Anders brief raises the following question for our

review:

      I.    Whether there are any non-frivolous issues presented for
            appeal?

(Anders Brief, at 3).

      Appellant’s counsel has petitioned for permission to withdraw and has

submitted an Anders brief, which is procedurally proper for counsel seeking

to withdraw on direct appeal. See Anders, supra at 744. Court-appointed

counsel who seeks to withdraw from representing an appellant on direct

appeal on the basis that the appeal is frivolous 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. When we receive an Anders brief, we first rule on

the petition to withdraw and then review the merits of the underlying issues.

See Commonwealth v. Garang, 9 A.3d 237, 240-41 (Pa. Super. 2010).


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In addition, “[p]art and parcel of Anders is our Court’s duty to review the

record to insure no issues of arguable merit have been missed or misstated.”

Commonwealth v. Vilsaint, 893 A.2d 753, 755 (Pa. Super. 2006).

       In the instant matter, counsel has complied with all the requirements

of Anders and Santiago.        Specifically, he has petitioned this Court to

withdraw because “after making a conscientious examination of the record,

it has been determined that an appeal would be frivolous.” (Application to

Withdraw Appearance, 3/31/16, at unnumbered page 1). In addition, after

his review of the record, counsel filed a brief with this Court that provides a

summary of the procedural history and facts with citations to the record,

refers to any facts or legal theories that arguably support the appeal, and

explains why he believes the appeal is frivolous. (See Anders Brief, at 8-

10).   Lastly, he has attached, as an exhibit to his petition to withdraw, a

copy of the letter sent to Appellant giving him notice of his rights, and

including a copy of the Anders brief and the petition. (See Application to

Withdraw    Appearance, 3/31/16, at unnumbered page            2);   see also

Commonwealth v. Millisock, 873 A.2d 748, 749 (Pa. Super. 2005).

Appellant has not filed a response. Because counsel has complied with the

dictates of Anders, Santiago, and Millisock, we will examine the issues to

see if any have arguable merit. See Garang, supra at 240-41.

       The Anders brief challenges the voluntariness of Appellant’s guilty

plea. (See Anders Brief, at 8-9). “[A] defendant who attempts to withdraw


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a guilty plea after sentencing must demonstrate prejudice on the order of

manifest injustice before withdrawal is justified.            A showing of manifest

injustice may be established if the plea was entered into involuntarily,

unknowingly, or unintelligently.”        Commonwealth v. Yeomans, 24 A.3d

1044, 1046 (Pa. Super. 2011) (citation and internal quotation marks

omitted).        “The law does not require that appellant be pleased with the

outcome of his decision to enter a plea of guilty[.]”            Commonwealth v.

Yager, 685 A.2d 1000, 1004 (Pa. Super. 1996) (en banc), appeal denied,

701 A.2d 577 (Pa. 1997) (citation omitted). Further, when a defendant has

entered a guilty plea, we presume that he was aware of what he was doing;

it   is    his   burden   to   prove   that   the   plea   was   involuntary.   See

Commonwealth v. McCauley, 797 A.2d 920, 922 (Pa. Super. 2001).

Accordingly, where the record clearly shows the court conducted a guilty

plea colloquy and that the defendant understood the nature of the charges

against him, the plea is voluntary.           See id.      In examining whether the

defendant understood the nature and consequences of his plea, we look to

the totality of the circumstances.        See id.    At a minimum, the trial court

must inquire into the following six areas:

          (1)    Does the defendant understand the nature of the charges
                 to which he is pleading guilty?

          (2)    Is there a factual basis for the plea?

          (3)    Does the defendant understand that he has a right to trial
                 by jury?


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      (4)   Does the defendant understand that he is presumed
            innocent until he is found guilty?

      (5)   Is the defendant aware of the permissible ranges of
            sentences and/or fines for the offenses charged?

      (6)   Is the defendant aware that the judge is not bound by the
            terms of any plea agreement tendered unless the judge
            accepts such agreement?

Id. (citation omitted).   This examination may be conducted by defense

counsel or the attorney for the Commonwealth, as permitted by the Court.

See Pa.R.Crim.P. 590, Comment. Additionally, the examination may consist

of both a “written colloquy that is read, completed, signed by the defendant,

and made part of the record,” and an on-the-record oral examination. Id.

      The entry of a guilty plea results in a waiver of all defects and

defenses except for those that challenge the jurisdiction of the court, the

validity of the guilty plea, or the legality of the sentence.             See

Commonwealth v. Syno, 791 A.2d 363, 365 (Pa. Super. 2002). Because

Appellant filed his challenge to the validity of his guilty plea following the

imposition of sentence, he must make a showing of manifest injustice. See

Commonwealth v. Gunter, 771 A.2d 767, 771 (Pa. 2001).

      The record in the instant matter amply demonstrates that Appellant’s

guilty plea was knowing, intelligent and voluntary.    Specifically, Appellant

signed a four-page written plea colloquy in which he agreed that he was

satisfied with the advice by, and representation of, counsel. (See Written

Guilty Plea Colloquy, 12/08/14 at 3). He agreed to and understood the facts


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and elements of the crime, understood what rights he was giving up, and

was pleading guilty of his own free will. (See id. at 1-3). The trial court

then engaged in an oral plea colloquy, which covered all six grounds

discussed above. (See N.T. Guilty Plea, 12/08/14, at 5-11). Accordingly,

any challenge to the validity of Appellant’s guilty plea lacks merit.    See

McCauley, supra at 922.

     Next, the Anders brief challenges the discretionary aspects of

Appellant’s sentence.   (See Anders Brief, at 9).    Preliminarily, we note,

“[i]ssues challenging the discretionary aspects of sentence must be raised in

a post-sentence motion or by presenting the claim to the trial court during

the sentencing proceedings.      Absent such efforts, an objection to a

discretionary aspect of a sentence is waived.” Commonwealth v. McAfee,

849 A.2d 270, 275 (Pa. Super. 2004), appeal denied, 860 A.2d 122 (Pa.

2004) (citations and quotations marks omitted).     Appellant neither raised

any objections to the sentence at sentencing nor filed a post-sentence

motion challenging the discretionary aspects of sentence.     Therefore, we

would ordinarily find the claim waived. However, Anders requires that we

review claims that we would ordinarily find waived. See Commonwealth v.




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Lilley, 978 A.2d 995, 998 (Pa. Super. 2009).                   Thus, we will not find

Appellant’s claim waived on this basis.3

         The right to appeal the discretionary aspects of a sentence is not

absolute. See McAfee, supra at 274. When an appellant challenges the

discretionary aspects of the sentence imposed, he must present “a

substantial    question     as    to   the     appropriateness   of   the   sentence[.]”

Commonwealth v. Anderson, 830 A.2d 1013, 1017 (Pa. Super. 2003)

(citations omitted).      An appellant must, pursuant to Pennsylvania Rule of

Appellate Procedure 2119(f), articulate “a colorable argument that the

sentence violates a particular provision of the Sentencing Code or is contrary

to   the    fundamental          norms   underlying      the     sentencing    scheme.”

Commonwealth v. Kimbrough, 872 A.2d 1244, 1263 (Pa. Super. 2005)

(en banc), appeal denied, 887 A.2d 1240 (Pa. 2005) (citation omitted). If

an appellant’s Rule 2119(f) statement meets these prerequisites, we have

found that a substantial question exists. See Commonwealth v. Goggins,

748 A.2d 721, 727 (Pa. Super. 2000), appeal denied, 759 A.2d 920 (Pa.

2000).     “Our inquiry must focus on the reasons for which the appeal is


____________________________________________


3
  We note that Appellant has not included a Rule 2119(f) statement in his
brief. (See Anders Brief, supra). While this might ordinarily waive his
argument, see Commonwealth v. Roser, 914 A.2d 447, 457 (Pa. Super.
2006), appeal denied, 927 A.2d 624 (Pa. 2007) (citation omitted), as
Appellant has submitted an Anders brief, we are able to review his claim.
See Lilley, supra at 998.



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sought, in contrast to the facts underlying the appeal, which are necessary

only to decide the appeal on the merits.” Id. (emphases in original).

      Our standard of review is settled.

              Sentencing is a matter vested in the sound discretion of
      the sentencing judge, and a sentence will not be disturbed on
      appeal absent a manifest abuse of discretion. In this context, an
      abuse of discretion is not shown merely by an error in judgment.
      Rather, the appellant must establish, by reference to the record,
      that the sentencing court ignored or misapplied the law,
      exercised its judgment for reasons of partiality, prejudice, bias
      or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015),

appeal denied, 125 A.3d 1198 (Pa. 2015) (citation omitted).

      Here, the Anders brief acknowledges that the trial court sentenced

Appellant in the mitigated range.    (See Anders Brief, at 9).   The record

demonstrates that the trial court had the benefit of a pre-sentence

investigation report (PSI). (See N.T. Sentencing, 2/20/15, at 16). We have

stated that:

             [w]hen imposing a sentence, a court is required to
      consider the particular circumstances of the offense and the
      character of the defendant. . . . Where the sentencing court had
      the benefit of a [PSI], we can assume the sentencing court was
      aware of relevant information regarding the defendant’s
      character and weighed those considerations along with
      mitigating statutory factors. Further, where a sentence is within
      the standard range of the guidelines, Pennsylvania law views the
      sentence as appropriate under the Sentencing Code.

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (internal

quotation marks and citations omitted). Here, the sentencing court stated

that it had reviewed the PSI and imposed a sentence that was within the

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mitigated range of the guidelines. (See N.T. Sentencing, 2/20/15, at 16).

Thus, any challenge to the discretionary aspects of sentence lacks merit.

See Commonwealth v. Zeigler, 112 A.3d 656, 662 (Pa. Super. 2015)

(holding sentence not manifestly unreasonable where sentencing court

considered PSI, details of crime, and explained reasons for sentence); see

also Moury, supra at 171.

      The Anders brief also challenges the denial of credit for time served.

(See Anders Brief, at 9). A claim that the court failed to award credit for

time served implicates the legality of sentence.    See Commonwealth v.

Clark, 885 A.2d 1030, 1032 (Pa. Super. 2005). Therefore, our standard of

review is de novo and our scope of review is plenary. See Commonwealth

v. Wolfe, 106 A.3d 800, 802 (Pa. Super. 2014).

      Here, the record reflects that, because the trial court sentenced

Appellant in the mitigated range, it intended that Appellant serve the entire

twenty-three months of the sentence.     (See N.T. Sentencing, 2/20/15, at

17). Therefore, it directed that Appellant not receive credit for time served.

(See id.).    When informed by the Commonwealth, via a post-sentence

motion, that it could not so direct, the trial court scheduled the matter for

resentencing. At the second sentencing hearing, Appellant explicitly waived

his right to receive credit for time served in return for the sentencing court

not imposing a lengthier sentence.    (See N.T. Sentencing, 3/04/15, at 9-

10). This Court has held that so long as the waiver is knowing, intelligent,


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and voluntary, a defendant can waive his right to credit for time served.

See Commonwealth v. Byrne, 833 A.2d 729, 735-36 (Pa. Super. 2003).

Here, our review of the record demonstrates that Appellant knowingly,

intelligently, and voluntarily waived his right to credit for time served. (See

N.T. Sentencing, 3/04/15, at 7-10). Thus, any challenge to the legality of his

sentence on this basis lacks merit. See Byrne, supra at 735.

      Appellant’s issues do not merit relief.       Further, this Court has

conducted an independent review of the record as required by Anders and

Santiago and finds that no non-frivolous issues exist.

      Judgment of sentence affirmed.         Petition to withdraw as counsel

granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/17/2016




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