J-S39030-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                                :        PENNSYLVANIA
                                                :
                v.                              :
                                                :
                                                :
    CLINTON ALLEN GEIST                         :
                                                :
                       Appellant                :   No. 1621 MDA 2017

          Appeal from the Judgment of Sentence September 13, 2017
     In the Court of Common Pleas of Lycoming County Criminal Division at
                       No(s): CP-41-CR-0002198-2016


BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.:                                FILED OCTOBER 16, 2018

        This case returns to this panel after we remanded for Appellant’s

counsel, Matthew Welickovitch, Esq. (Counsel), to file an amended Anders1

petition and brief or an advocate’s brief.          Clinton Allen Geist (Appellant)

appeals from the judgment of sentence imposed following the entry of his

guilty plea to possession of a controlled substance (heroin) and possession of

drug paraphernalia.2          Additionally,    Counsel   seeks to   withdraw   from

representation. After careful review, we grant Counsel’s petition to withdraw

and affirm Appellant’s judgment of sentence.

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

On July 14, 2017, Appellant pled guilty to one count each of possession of a
____________________________________________


1Anders v. California, 386 U.S. 738 (1967); see also Commonwealth v.
Santiago, 978 A.2d 349, 361 (Pa. 2009).

2   35 P.S. §§ 780-113(a)(16), (32).
J-S39030-18



controlled substance (heroin) and possession of drug paraphernalia.            On

September 23, 2017, the trial court sentenced Appellant to an aggregate term

of 22 months to 4 years of incarceration.         Appellant filed a timely post-

sentence motion, seeking to modify his sentence; the trial court denied

Appellant’s motion on October 4, 2017.

      On October 12, 2017, Appellant filed this. We note that both Appellant

and the trial court have complied with Pennsylvania Rule of Appellate

Procedure 1925(b). Counsel subsequently filed a petition to withdraw and an

accompanying Anders brief. Because Counsel’s Anders brief was deficient,

we denied his petition to withdraw without prejudice and remanded to permit

him to review the record and file a compliant brief if he still believed the appeal

was frivolous.    Counsel reviewed the record, concluded the appeal was

frivolous, and filed another Anders brief and petition to withdraw on

September 3, 2018.

      There are particular mandates that counsel seeking to withdraw

pursuant to Anders must follow.          These mandates and the significant

protection they provide to an Anders appellant arise because a criminal

defendant has a constitutional right to a direct appeal and to counsel on that

appeal. Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007).

We have summarized these requirements as follows:

      Direct appeal counsel seeking to withdraw under Anders must file
      a petition averring that, after a conscientious examination of the
      record, counsel finds the appeal to be wholly frivolous. Counsel
      must also file an Anders brief setting forth issues that might


                                       -2-
J-S39030-18


      arguably support the appeal along with any other issues necessary
      for the effective appellate presentation thereof.

      Anders counsel must also provide a copy of the Anders petition
      and brief to the appellant, advising the appellant of the right to
      retain new counsel, proceed pro se or raise any additional points
      worthy of this Court’s attention.

      If counsel does not fulfill the aforesaid technical requirements of
      Anders, this Court will deny the petition to withdraw and remand
      the case with appropriate instructions (e.g., directing counsel
      either to comply with Anders or file an advocate’s brief on
      Appellant’s behalf).

Id. (citations omitted).

      Additionally, there are requirements as to precisely what an Anders

brief must contain:

      [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 349, 361 (Pa. 2009).         When faced with a purported

Anders brief, we may not review the merits of the underlying issues without

first deciding whether counsel has properly requested permission to withdraw.

Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa. Super. 2008) (citation

omitted).   If counsel has met these obligations, “it then becomes the

responsibility of the reviewing court to make a full examination of the




                                      -3-
J-S39030-18


proceedings and make an independent judgment to decide whether the appeal

is in fact wholly frivolous.” Santiago, 978 A.2d at 354 n.5.

      Instantly, we conclude that Counsel has complied with the requirements

outlined above. Counsel has filed a petition with this Court stating that after

reviewing the record, he finds this appeal to be wholly frivolous. Petition for

Permission to Withdraw as Counsel, 9/3/18, at ¶ 5.       In conformance with

Santiago, Counsel’s brief includes summaries of the facts and procedural

history of the case, and discusses the issues he believes might arguably

support Appellant’s appeal. See Anders Brief at 5-11. Counsel’s brief sets

forth his conclusion that the appeal is frivolous and includes citation to

relevant authority.   See id. at 8-9.   Finally, Counsel has attached to his

petition to withdraw the letter he sent to Appellant, which enclosed Counsel’s

petition and Anders brief. Counsel’s letter advised Appellant of his right to

proceed pro se or with private counsel and to raise any additional issues that

he deems worthy of this Court’s consideration.

      On appeal, Counsel presents the following issues for review:

      I.    WHETHER THE COURT ERRED IN ACCEPTING APPELLANT’S
            PLEA WHEN APPELLANT WAS UNDER A STATE OF APPARENT
            IN[T]OXICATION; WHETHER THAT PLEA WAS VOLUNTARY
            AND    UNDERSTANDINGLY   TENDERED     GIVEN   THE
            CIRCUMSTANCES[?]

      II.   WHETHER AN APPLICATION TO WITHDRAW AS COUNSEL
            SHOULD    BE   GRANTED    WHERE  COUNSEL    HAS
            INVESTIGATED THE POSSIBLE GROUNDS OF APPEAL AND
            FINDS THE APPEAL FRIVOLOUS[?]

Anders Brief at 4.


                                     -4-
J-S39030-18


        Appellant argues that his guilty plea was not “voluntarily and

understandingly tendered” due to Appellant’s intoxication at the guilty plea

hearing, which he contends was plainly visible.         Rule 1925(b) Statement,

11/2/17, at ¶ 1. Appellant asserts that the trial court erred by accepting his

guilty plea because of his level of intoxication. Id.

        Appellant waived this claim by failing to raise it in the trial court either

by objecting during the plea colloquy or in a timely motion to withdraw his

plea.     See Pa.R.Crim.P. 720(B)(1)(a)(i); see also Commonwealth v.

Lincoln, 72 A.3d 606, 609-10 (Pa. Super. 2013) (holding that a “defendant

wishing to challenge the voluntariness of a guilty plea on direct appeal must

either object during the plea colloquy or file a motion to withdraw the plea

within ten days of sentencing. Failure to employ either measure results in

waiver.”). Even if Appellant had not waived this claim, we would reject it as

meritless. The evidence before us – the oral plea colloquy and the guilty plea

colloquy forms signed by Appellant – together refute Appellant’s claim that his

plea was not knowing, voluntary, and intelligent. See N.T., 7/14/17, at 5-7;

Written Guilty Plea Colloquy forms, 7/14/17; see also Commonwealth v.

Morrison, 878 A.2d 102, 108 (Pa. Super. 2005) (en banc) (concluding guilty

plea was not unknowing and involuntary where defendant signed written guilty

plea colloquy form containing statements and information refuting claim).

Accordingly, Appellant’s claim does not merit relief.

        Petition to withdraw granted. Judgment of sentence affirmed.


                                        -5-
J-S39030-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/2018




                          -6-
