J-S63004-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    CYNTHIA GRAHAM                              :   IN THE SUPERIOR COURT OF
                                                :         PENNSYLVANIA
                       Appellee                 :
                                                :
                v.                              :
                                                :
    DONALD COOPER, III                          :
                                                :
                       Appellant                :       No. 1197 EDA 2019

         Appeal from the Judgment of Sentence Entered March 21, 2019
               In the Court of Common Pleas of Delaware County
                    Civil Division at No(s): No. 2019-80114

BEFORE:      GANTMAN, P.J.E., MURRAY, J., and STRASSBURGER, J.*

MEMORANDUM BY GANTMAN, P.J.E.:                        FILED DECEMBER 06, 2019

        Appellant, Donald Cooper, III, appeals from the judgment of sentence

entered in the Delaware County Court of Common Pleas, following his

negotiated guilty plea to indirect criminal contempt, for violating a protection

from abuse (“PFA”) order. We affirm and grant counsel’s petition to withdraw.

        The relevant facts and procedural history of this case are as follows. On

January 22, 2019, the trial court entered a temporary PFA order prohibiting

Appellant from abusing, harassing, stalking or threatening Appellee, Cynthia

Graham, including at her residence.            On January 31, 2019, the trial court

continued in full force and effect the temporary PFA order until further order

of the court and noted a hearing was scheduled for April 25, 2019.              On

February 15, 2019, while the temporary PFA was still in effect, Appellee called

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*   Retired Senior Judge assigned to the Superior Court.
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the police because Appellant was threatening her at her home. The police

immediately removed and arrested Appellant. Appellant entered a negotiated

guilty plea on March 21, 2019, to one count of indirect criminal contempt for

violation of the PFA. Before accepting the plea, Appellant completed a written

guilty plea colloquy; and the court conducted an oral plea colloquy to confirm

Appellant’s plea was knowing, intelligent, and voluntary. The court sentenced

Appellant that day to the negotiated sentence of six months’ probation.

Appellant did not file a post sentence motion.

        Appellant timely filed a notice of appeal on Monday, April 22, 2019. On

April 24, 2019, the court ordered Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). On May 13, 2019,

counsel filed a statement of intent to file a petition to withdraw and Anders1

brief, per Pa.R.A.P. 1925(c)(4).

        As a preliminary matter, appellate counsel seeks to withdraw his

representation pursuant to Anders and Commonwealth v. Santiago, 602

Pa. 159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: 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



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1   Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

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advise him of his right to obtain new counsel or file a pro se brief to raise any

additional points the appellant deems worthy of review. Santiago, supra at

173-79, 978 A.2d at 358-61. Substantial compliance with these requirements

is sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.

2007).

       In Santiago, supra, our Supreme Court addressed the briefing

requirements where court-appointed appellate counsel seeks to withdraw

representation:

          Neither Anders nor McClendon2 requires that counsel’s
          brief provide an argument of any sort, let alone the type of
          argument that counsel develops in a merits brief. To repeat,
          what the brief must provide under Anders are references
          to anything in the record that might arguably support the
          appeal.

                                       *       *   *

          Under Anders, the right to counsel is vindicated by
          counsel’s examination and assessment of the record and
          counsel’s references to anything in the record that arguably
          supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

          [I]n 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. Counsel should articulate the relevant facts of
          record, controlling case law, and/or statutes on point that
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2   Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).

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         have led to the conclusion that the appeal is frivolous.

Id. at 178-79, 978 A.2d at 361. After confirming that counsel has met the

antecedent requirements to withdraw, this Court makes an independent

review of the record to confirm that the appeal is wholly frivolous.

Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super. 2006). See also

Commonwealth v. Dempster, 187 A.3d 266 (Pa.Super. 2018) (en banc).

      Instantly, appellate counsel has filed a petition to withdraw. The petition

states counsel conducted a conscientious review of the record and determined

the appeal is wholly frivolous. Counsel also supplied Appellant with a copy of

the brief and a proper letter explaining Appellant’s immediate right to retain

new counsel or proceed pro se to raise any additional issues Appellant deems

worthy of this Court’s attention.    In the Anders brief, counsel provides a

summary of the facts and procedural history of the case and refers to relevant

law that might arguably support Appellant’s issue. Counsel further states the

reasons for his conclusion that the appeal is wholly frivolous.       Therefore,

counsel has substantially complied with the technical requirements of Anders

and Santiago.

      Counsel raises the following issue on Appellant’s behalf:

         WHETHER THE NEGOTIATED GUILTY PLEA ENTERED IN
         THIS MATTER WAS KNOWING AND VOLUNTARY.

(Anders Brief at 3). Appellant has not responded to the Anders brief.

      As a second preliminary matter, “[a] defendant wishing to challenge the

voluntariness of a guilty plea on direct appeal must either object during the

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plea colloquy or file a motion to withdraw the plea within ten days of

sentencing.” Commonwealth v. Lincoln, 72 A.3d 606, 609-10 (Pa.Super.

2013), appeal denied, 624 Pa. 688, 87 A.3d 319 (2014) (holding defendant

failed to preserve challenge to validity of guilty plea where he did not object

during plea colloquy or file post-sentence motion to withdraw plea). See also

Pa.R.Crim.P.    720(A)(1),    (B)(1)(a)(i)   (stating   post-sentence    motion

challenging validity of guilty plea shall be filed no later than 10 days after

imposition of sentence).

      Instantly, Appellant did not seek to withdraw his guilty plea at any time

orally on the record during the plea colloquy or by filing a timely post-sentence

motion. Therefore, his issue on appeal is waived. See id.; Lincoln, supra.

Following our independent review of the record, we agree the appeal is

frivolous. See Dempster, supra; Palm, supra. Accordingly, we affirm and

grant counsel’s petition to withdraw.

      Judgment of sentence affirmed; counsel’s petition to withdraw is

granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/6/19



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