J-S61036-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT
                                                               OF
                                                          PENNSYLVANIA
                             Appellee

                        v.

    CHARLES SWINT,

                             Appellant                   No. 369 EDA 2017


           Appeal from the Judgment of Sentence December 20, 2016
             in the Court of Common Pleas of Montgomery County
              Criminal Division at Nos.: CP-46-CR-0005663-2012
                           CP-46-CR-0006651-2012


BEFORE: LAZARUS, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                           FILED NOVEMBER 27, 2017

        Appellant, Charles Swint, appeals from the judgment of sentence

imposed following his entry of guilty pleas in these consolidated cases,1 to

attempted voluntary manslaughter2 and numerous related offenses. Counsel

for Appellant has petitioned to withdraw on the ground that his issues on

appeal are wholly frivolous.3        We grant counsel’s petition to withdraw and

affirm the judgment of sentence.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1The trial court consolidated the cases upon the Commonwealth’s motion by
order entered November 16, 2012.

2   18 Pa.C.S.A. § 901(a).

3 See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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      We take the relevant facts and procedural history of this matter from

the trial court’s March 16, 2017, opinion and our independent review of the

certified record.

            [Appellant] entered an open guilty plea on June 2, 2016, in
      the case indexed at 6651-12 to one count each of attempted
      voluntary manslaughter, aggravated assault causing serious
      bodily injury, theft by unlawful taking, criminal mischief and
      possession of an instrument of a crime, and two counts of
      recklessly endangering another person. In the case indexed at
      5663-12, [Appellant] entered an open guilty plea to two counts of
      simple assault and one count of harassment.

            While the parties were not able at the time to negotiate a
      sentence, they indicated their understanding that the bottom end
      of an aggregated standard-range sentence for the case indexed at
      6651-12, if the cases were run consecutively, could be between
      approximately 11 and 16 years of incarceration. The parties also
      noted their understanding that any sentence on the case indexed
      at 5663-12 would be a time-served, concurrent sentence.

            [Appellant] admitted as part of his plea in the case indexed
      at 5663-12, that on or about June 6, 2012, in Montgomery
      County, he caused bodily injury to Sarah Gallagher. He admitted
      as part of the plea in the case indexed at 6651-12 that on or about
      July 6, 2012, in Montgomery County, he stabbed Sarah Gallagher
      multiple times, using multiple knives, causing her serious bodily
      injury. He then took a vehicle without permission and drove it in
      a reckless manner, resulting in a motor vehicle accident that
      endangered Jessica Wall and Michael Skates and caused Wall to
      suffer property damage.

             More than five months after the open guilty plea, and
      approximately two weeks before the scheduled sentencing
      hearing, [Appellant] filed a counseled motion to withdraw his open
      guilty pleas. The motion alleged that [Appellant] believed that he
      faced a possible aggregate minimum sentence of 11 years, not up
      to 16 years. When the parties next appeared in court, however,
      they announced they had reached a negotiated sentence and
      [Appellant] confirmed that he did not want to withdraw his guilty
      pleas. [The trial] court sentenced [Appellant] to the negotiated

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J-S61036-17


       sentence, which included an aggregate prison term of 12 to 36
       years.

              [Appellant] did not file a post-sentence motion. . . .

(Trial Court Opinion, 3/16/17, at 1-2) (record citations omitted).

       Appellant filed a pro se notice of appeal, despite his representation by

counsel, which was entered on the docket on January 23, 2017.4 Pursuant to

the trial court’s order, Appellant filed a counseled, timely, concise statement

of errors complained of on appeal on February 2, 2017.             See Pa.R.A.P.

1925(b). The court entered an opinion on March 16, 2017. See Pa.R.A.P.

1925(a).

____________________________________________


4 The deadline for filing a timely notice of appeal was January 19, 2017, thirty
days after the court sentenced Appellant. See Pa.R.A.P. 903(a). However, it
is well-settled that, “in the interest of fairness, the prisoner mailbox rule
provides that a pro se prisoner’s document is deemed filed on the date he
delivers it to prison authorities for mailing.” Commonwealth v. Chambers,
35 A.3d 34, 38 (Pa. Super. 2011), appeal denied, 46 A.3d 715 (Pa. 2012)
(citation omitted).

      Here, Appellant’s notice of appeal, accompanying cover letter, and
attached “verification” document, are dated January 16, 2017, which supports
a conclusion that he timely filed this appeal under the prisoner mailbox rule.
Although the envelope containing the notice of appeal is postmarked January
20, 2017, there is nothing of record demonstrating that Appellant did not place
the document in the hands of prison authorities on January 16, 2017, or
shortly thereafter. Under these circumstances, we give Appellant the benefit
of the doubt, and treat his appeal as timely filed pursuant to the prisoner
mailbox rule.

      We further note that, although Appellant filed his notice of appeal pro
se while represented by counsel, that fact does not deprive us of jurisdiction
to review his claims. See Commonwealth v. Williams, 151 A.3d 621, 624
(Pa. Super. 2016) (holding that this Court is required to docket and honor pro
se notices of appeal filed by represented criminal defendants, despite
prohibition on hybrid representation).


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      On May 4, 2017, counsel for Appellant filed an Anders brief and a

petition to withdraw, stating his belief that there are no non-frivolous issues

to raise on appeal.    (See Petition to Withdraw as Counsel, 5/04/17, at

unnumbered page 2 ¶ 12). Counsel submitted to this Court a copy of his letter

to Appellant, enclosing a copy of the Anders brief. (See Letter from Patrick

J. McMenamin, Jr., Esq. to Appellant, 5/03/17).       Appellant filed a pro se

response, raising claims of ineffective assistance of counsel.     (See pro se

“Anders Brief,” 6/23/17, at unnumbered pages 1-3).

            Before we begin our substantive analysis, we must first
      review defense counsel’s Anders brief and motion to withdraw.

            Prior to withdrawing as counsel on a direct appeal under
      Anders, counsel must file a brief that meets the requirements
      established by our Supreme Court in Santiago. The brief 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. 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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J-S61036-17



Commonwealth v. Bennett, 124 A.3d 327, 330 (Pa. Super. 2015)

(quotation marks and some citations omitted). “Once counsel has satisfied

the [Anders] 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.

Lilley, 978 A.2d 995, 998 (Pa. Super. 2009) (citation omitted).

       Here,    counsel    has    complied     with   the   Anders   and   Santiago

requirements. He has submitted a brief that summarizes the procedural and

factual history of the case; refers to anything that might arguably support the

appeal; and sets forth his reasoning and conclusion that the appeal is

frivolous. (See Anders Brief at 1–11). He has filed a petition for leave to

withdraw as counsel, sent Appellant a letter advising him that he found no

non-frivolous issues, provided Appellant with a copy of the Anders brief, and

notified him of his right to retain new counsel or proceed pro se. Because

counsel has fulfilled the Anders/Santiago requirements, we will address the

issues raised in the Anders brief.

       The brief raises the following issues for our review:5

          [1]. Did the [trial] court err by denying Appellant’s pre-
          sentence motion to withdraw his guilty plea, or in the
          alternative, by not deciding the motion at all?



____________________________________________


5 We take these questions from the body of the Anders brief and Appellant’s
Rule 1925(b) statement, because counsel failed to set forth any substantive
issues in the statement of the questions involved. (See Anders Brief, at v).

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          [2.] Did the [trial] court abuse its discretion in sentencing
          Appellant to an aggregate sentence of not less than 12 nor
          more than 36 years?

(Anders Brief, at 5, 7) (unnecessary capitalization omitted); (see also Rule

1925(b) Statement, 2/02/17, at ¶¶ 1-2).6

       Appellant first argues that the trial court abused its discretion by

denying his presentence motion to withdraw his guilty plea, or in the

alternative, by failing to rule on it at all. (See Anders Brief, at 5-6). This

claim is belied by the record.

       We begin by noting the following applicable principles:

              The standard of review that we employ in challenges to a
       trial court’s decision regarding a presentence motion to withdraw
       a guilty plea is well-settled. A trial court’s decision regarding
       whether to permit a guilty plea to be withdrawn should not be
       upset absent an abuse of discretion.

             Pa.R.Crim.P. 591(A) provides that, in its discretion, a trial
       court may grant a motion for the withdrawal of a nolo contendere
       or guilty plea at any time before the imposition of sentence. . . .

Commonwealth v. Johnson-Daniels, 167 A.3d 17, 23 (Pa. Super. 2017)

(case citation and quotation marks omitted).

       Here, the record reflects that the trial court did not deny or otherwise

rule on Appellant’s presentence motion to withdraw his guilty plea because

Appellant withdrew it. At the sentencing hearing, the following exchanges

took place:


____________________________________________


6 The Commonwealth has submitted a letter to this Court in lieu of a brief,
stating its belief that there is no merit to this appeal and Appellant’s judgment
of sentence should be affirmed. (See Commonwealth Letter, 5/08/17).

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     THE COURT: . . . [Appellant], you heard the terms of this plea
     agreement. Are you in agreement with it?

     [Appellant]: Yes, I am, Your Honor.

     THE COURT: And you are ready to be sentenced?

     [Appellant]: Yes, I am.

                                     *     *   *

     [Defense Counsel]: . . . [Y]ou also filed a motion to withdraw your
     guilty plea; is that correct?

     [Appellant]: Yes.

     [Defense Counsel]: And you understand that by pleading today
     and having an agreement, essentially you are withdrawing that
     motion to withdraw your guilty plea?

     [Appellant]: I do not want to withdraw my guilty plea.

     [Defense Counsel]: And you are sure about that decision?

     [Appellant]: Yes, I am.

     [Defense Counsel]: We have had time to discuss that?

     [Appellant]: Yes. It is time to, like I said, hold myself accountable
     for what I have done. And I don’t want to cause any more hurt
     or pain to anybody. Today is the day. I just want to finalize
     everything.

     [Defense Counsel]: Okay. No one has forced, threatened or
     coerced you to withdraw . . . that form that you filed to withdraw
     your guilty plea?

     [Appellant]: No, nobody forced me.

(N.T. Sentencing, 12/20/16, at 6, 12-13).

     Thus, it is clear from the record that Appellant abandoned his motion to

withdraw his guilty plea, and that there was no longer a motion before the


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J-S61036-17



court to decide. Therefore, his claim that the court abused its discretion in

denying it, or in failing to rule on it, is plainly frivolous.

         Appellant next challenges the discretionary aspects of his negotiated

sentence, arguing that the trial court failed to place adequate reasons for the

aggregate sentence on the record. (See Anders Brief, at 7). This claim also

fails.

         It is well-settled that “[o]ne who pleads guilty and receives a negotiated

sentence may not then seek discretionary review of that sentence.”

Commonwealth v. O'Malley, 957 A.2d 1265, 1267 (Pa. Super. 2008)

(citation omitted).      Therefore, Appellant’s challenge to the discretionary

aspects of his negotiated sentence is not reviewable. See id.

         Moreover, even if Appellant had the right to raise such claim, he failed

to object to his sentence during sentencing or file a post-sentence motion.

Thus, he preserved no sentencing issue for our review. See Commonwealth

v. Lamonda, 52 A.3d 365, 371 (Pa. Super. 2012), appeal denied, 75 A.3d

1281 (Pa. 2013) (stating that in order to preserve challenge to discretionary

aspects of sentence, an appellant must raise issue at sentencing or in post-

sentence motion). In fact, Appellant stated his agreement with the terms of

the negotiated sentence on the record. (See N.T. Sentencing, at 3, 5-6, 54).

Accordingly, any challenge to the discretionary aspects of his sentence is

frivolous. Furthermore, after independent review, we determine that there




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are no other non-frivolous bases for appeal, and this appeal is “wholly

frivolous.” Lilley, supra at 998.7

       Judgment of sentence affirmed.            Petition for leave to withdraw as

counsel granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/27/2017




____________________________________________


7We dismiss Appellant’s pro se ineffective assistance of counsel claims (see
pro se “Anders Brief,” 6/23/17, at unnumbered pages 1-3) without prejudice,
should he decide to include them in a timely-filed petition pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541–9546.                    See
Commonwealth v. Stollar, 84 A.3d 635, 652 (Pa. 2014), cert. denied, 134
S.Ct. 1798 (2014).

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