J-S34005-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 DERRICK S. WILLIAMS                     :
                                         :
                   Appellant             :   No. 115 MDA 2020

      Appeal from the Judgment of Sentence Entered August 8, 2019
             In the Court of Common Pleas of Luzerne County
          Criminal Division at No(s): CP-40-CR-0001269-2019


BEFORE: PANELLA, P.J., BENDER, P.J.E., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, P.J.:             FILED: AUGUST 31, 2020

     Appellant, Derrick S. Williams, appeals from the judgment of sentence

entered in the Luzerne County Court of Common Pleas on August 8, 2019,

following his guilty plea to possession with intent to deliver (“PWID”).

Additionally, Williams’ court-appointed counsel seeks to withdraw pursuant to

Anders v. California, 386 U.S. 738 (1967). We affirm the judgment of

sentence and grant counsel permission to withdraw.

     In March of 2019, Williams was charged with various controlled

substance offenses alleged to have occurred between March 12, 2019 and

March 25, 2019. On May 10, 2019, a criminal information was filed which

included five counts of PWID, and one count of use or possession of drug

paraphernalia.
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       The Commonwealth and Williams entered a plea agreement whereby

Williams would plead guilty to two counts of PWID. In accordance with the

plea agreement, the Commonwealth agreed to withdraw the remaining

charges. Of relevance to this appeal, the plea agreement noted that the

parties had not made any agreement about sentencing. However, the plea

agreement did outline the aggregate maximum sentence that Williams could

face, which was twenty years.

       At the guilty plea hearing, after administering an oral colloquy to

Williams,1 the trial court accepted the guilty plea.

       On August 8, 2019, at the sentencing hearing, defense counsel

requested concurrent standard range sentences of twenty-one to twenty-

seven months’ incarceration. See N.T., Sentencing, 8/8/2019, at 2. Counsel

based her recommendation on the fact that Williams had a baby due in

December of that year, and that he is very close to his “elderly” mother. Id.

at 3. Williams stated that jail was not helping him overcome his drug addiction

and expressed his desire for a sentence of rehabilitation. See id. The


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1 As part of the oral colloquy, Williams acknowledged that he reviewed the
plea agreement with his attorney, that he understood the rights he was
waiving, that he understood the plea agreement, and that he wished to plead
guilty in accordance with such agreement. See N.T., Guilty Plea, 5/31/2019,
at 4-6. He further acknowledged that he understood the statutory maximum
penalties involved, and that no one was forcing, threatening, or promising him
anything in exchange for his plea. See id.




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Commonwealth did not enter a recommendation regarding sentence on the

record, instead leaving the sentence to the court’s discretion.

      Prior to the court imposing sentence, Williams entered an oral motion to

withdraw his guilty plea on the basis that he did not know it was an open plea.

See id. at 5. In denying the motion, the trial court indicated that both the

written plea agreement that he signed, as well as the oral colloquy during the

guilty plea hearing, indicated that there was no agreement as to the length or

type of sentence to be imposed. See id.

      The court subsequently sentenced Williams to an aggregate term of

forty-eight to ninety-six months’ incarceration, to be served consecutive to

any previously imposed sentence.

      Williams filed a timely post-sentence motion. The trial court denied the

motion.

      On January 8, 2020, counsel filed a timely notice of appeal. Counsel

then filed a timely concise statement, which informed the court of counsel’s

intent to file an Anders brief.

      Counsel subsequently filed an Anders brief raising the following issue:

      Whether the trial court abused its discretion and impose[d] an
      unduly harsh sentence when it imposed a sentence of total
      confinement of an aggregate term of 48 months to 96 months
      which resulted from running two (2) cases consecutive to one
      another?

Anders Brief, at 2.




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      We turn first to counsel’s petition to withdraw. To withdraw pursuant to

Anders, counsel must:

      1) petition the court for leave to withdraw stating that, after
      making a conscientious examination of the record, counsel has
      determined that the appeal would be frivolous; 2) furnish a copy
      of the [Anders] brief to the [appellant]; and 3) advise the
      [appellant] that he or she has the right to retain private counsel
      or raise additional arguments that the [appellant] deems worthy
      of the court’s attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en

banc) (citation omitted). With respect to the third requirement of Anders,

that counsel inform the appellant of his or her rights in light of counsel’s

withdrawal, this Court has held that counsel must “attach to their petition to

withdraw a copy of the letter sent to their client advising him or her of their

rights.” Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).

      An Anders brief must comply with the following requirements:

      (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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). “[I]f counsel’s

petition and brief satisfy Anders, we will then undertake our own review of

the appeal to determine if it is wholly frivolous.” Commonwealth v. Wrecks,

931 A.2d 717, 721 (Pa. Super. 2007) (brackets added, citation omitted).




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      We find counsel has complied with the preliminary requirements set

forth in Anders. Counsel filed a petition to withdraw, certifying she has

reviewed the case and determined that Williams’ appeal is frivolous. Further,

counsel attached to her petition a copy of her letter to Williams advising him

of his rights. Although the letter does not explicitly state Williams has a right

to proceed pro se, counsel does instruct Williams’ that he may file his own

brief raising any issues he deems have merit. Counsel also filed a brief, which

includes a summary of the history and facts of the case, potential issues that

could be raised by Williams, and her assessment of why those issues are

meritless, with citations to relevant legal authority. Counsel has thus complied

with the requirements of Anders. Williams did not file a response. We may

proceed to review the issues outlined in the Anders brief.

      The only issue in the Anders brief presents a challenge to the

discretionary aspects of Williams’ sentence. “A challenge to the discretionary

aspects of a sentence must be considered a petition for permission to appeal,

as the right to pursue such a claim is not absolute.” Commonwealth v.

McAfee, 849 A.2d 270, 274 (Pa. Super. 2004) (citation omitted).

      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

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       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) (citation

omitted; brackets in original).

       Here, Williams preserved his issue through a timely post-sentence

motion for reconsideration of sentence, and filed a timely appeal. However,

counsel has failed to include a Pa.R.A.P. 2119(f) statement. “Where counsel

files an Anders brief, this Court has reviewed the matter even absent a

separate Pa.R.A.P. 2119(f) statement. Hence, we do not consider counsel’s

failure to submit a Rule 2119(f) statement as precluding review of whether

Appellant’s issue is frivolous.” Commonwealth v. Zeigler, 112 A.3d 656,

661 (Pa. Super. 2015) (citations omitted).

       In his post-sentence motion, Williams requested the court reconsider or

vacate his sentence, arguing the court erred in not considering a mitigated

sentence; in not considering a less harsh sentence under the circumstances;

in not considering that the Commonwealth did not oppose concurrent

sentences;2 in not considering that his actions were the result of his addiction

to drugs and accordingly a treatment program would be more appropriate

than incarceration; and in not considering that his mother has multiple health

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2 At the guilty plea hearing, the Commonwealth stated that it had no objection
to concurrent sentences for the charges. See N.T., Guilty Plea, 5/31/2019, at
2-3. However, the Commonwealth did not renew this statement at sentencing,
and in fact specifically stated that it was leaving the sentencing decision to
the court’s discretion. See N.T., Sentencing, 8/8/2019, at 3.


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problems and that he had a child due soon. These claims do not raise a

substantial question. See, e.g., Commonwealth v. Moury, 992 A.2d 162,

175 (Pa. Super. 2010).

      Even if Williams raised a substantial question, the issue is not

meritorious. Williams’ sentence is not clearly unreasonable. The court

considered a pre-sentence report and sentenced Williams within the standard

sentencing range. Moreover, the court explained its reasons for its sentence

on the record, as follows:

      The [court has] reviewed the presentence report and what’s been
      offered today. I am concerned because it appears the Defendant
      has, I believe, three prior convictions for drug trafficking type
      offenses in addition to what’s before the Court today. It seems
      that there’s more involved here than what he indicates is some
      issue with the use of drugs. What is the problem is he’s -- the
      Defendant is selling the drugs, and he’s been doing that going
      back a number of years and has -- was actually, I believe, out on
      parole at the time of these offenses. So unfortunately the
      Defendant does not seem to be learning from past transgressions
      and just continues to sell and deal drugs in the community. In
      these cases it’s cocaine which, again, is a very harmful substance
      and dangerous substance.

      The Court does feel that the Defendant is in need of a substantial
      period of incarceration to hopefully try once again to correct and
      reform his ways and give him an ability to avail himself of
      programs in a structured setting.

      …

      Again, I don’t want to diminish the serious nature of the offense
      by the sentence that I’m about to impose. I will therefore impose
      a sentence within the standard range of the applicable guidelines.

      …




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      The Court has taken all matters into consideration in the PSI and
      what’s been offered and feels that the sentence is appropriate
      under the circumstances. I have sentenced within the standard
      ranges of the applicable sentencing guidelines.

N.T., Sentencing, 8/8/2019, at 4-5, 7. Finally, the plea agreement specifically

did not bind the trial court to any particular sentence. Therefore, it was in the

trial court’s discretion to determine the length of the sentence and whether to

run the sentences concurrently or consecutively.

      In as much as Williams is claiming the court did not consider certain

mitigating evidence, this is belied by the record. The information regarding

Williams’ mother and soon to be born child was entered on the record prior to

sentencing. In addition, the trial court reviewed a pre-sentence report. Where

the trial court had the benefit of reviewing a pre-sentence report, we must

      presume that the sentencing judge was aware of relevant
      information regarding the defendant’s character and weighed
      those considerations along with mitigating statutory factors. A
      pre-sentence report constitutes the record and speaks for itself.
      In order to dispel any lingering doubt as to our intention of
      engaging in an effort of legal purification, we state clearly that
      sentencers are under no compulsion to employ checklists or any
      extended or systematic definitions of their punishment procedure.
      Having been fully informed by the pre-sentence report, the
      sentencing court’s discretion should not be disturbed. This is
      particularly true, we repeat, in those circumstances where it can
      be demonstrated that the judge had any degree of awareness of
      the sentencing considerations, and there we will presume also that
      the weighing process took place in a meaningful fashion. It would
      be foolish, indeed, to take the position that if a court is in
      possession of the facts, it will fail to apply them to the case at
      hand.

Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992).




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       Williams’ challenge to the discretionary aspects of his sentence is

meritless. Our independent review of the record reveals no other, non-

frivolous issues that he could raise on appeal.3

       We affirm Williams’ judgment of sentence and grant counsel’s petition

to withdraw.

       Judgment of sentence affirmed. Petition to withdraw granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/31/2020



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3 As Williams failed to renew the issue regarding withdrawal of his guilty plea
in his post-sentence motion, we find the matter waived. Nevertheless, even if
we were to review the issue, we would find it without merit. Once a defendant
enters a guilty plea, it is presumed that he was aware of what he was doing.
See Commonwealth v. Stork, 737 A.2d 789, 790 (Pa. Super. 1999).
Consequently, defendants are bound by statements they make at their guilty
plea colloquy and may not successfully assert any claims that contradict those
statements. See Commonwealth v. Muhammad, 794 A.2d 378, 384 (Pa.
Super. 2002). In light of the fact that Williams fully and willingly agreed to
both the written plea agreement as well as the oral plea colloquy, both of
which specified that there was no agreement made as to sentencing, we find
his claim of not knowing the plea was open is contradicted by the record and
therefore frivolous.




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