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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                    v.                  :
                                        :
ERIC McMULLEN,                          :         No. 1025 WDA 2013
                                        :
                         Appellant      :


             Appeal from the Judgment of Sentence, May 22, 2013,
               in the Court of Common Pleas of Allegheny County
              Criminal Division at Nos. CP-02-CR-0002118-2008,
              CP-02-CR-0017000-2006, CP-02-CR-0018191-2006


BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OLSON, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED JANUARY 16, 2015

      Eric McMullen appeals from the judgment of sentence of May 22, 2013.

We affirm.

      In a prior memorandum, we described the history of this matter as

follows:

                    On March 2, 2010, appellant entered a
             negotiated guilty plea to numerous counts at three
             different informations, including robbery, aggravated
             assault, criminal conspiracy, prohibited offensive
             weapons, and firearms violations.        A charge of
             criminal attempt to commit homicide was withdrawn
             in accordance with the plea agreement. Following a
             thorough plea colloquy, the trial court imposed the
             agreed upon sentence of 10 to 20 years’
             imprisonment.[Footnote 1]

                   [Footnote 1] We note that appellant
                   faced a mandatory minimum of 10 years’
                   imprisonment    as   a   second-strike
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               recidivist violent offender pursuant to
               42 Pa.C.S.A. § 9714(a)(1).    (Notes of
               testimony, 3/2/10 at 33-34, 41-42.)

                During the plea, appellant stated that he was
          taking various prescription psychiatric medications.
          (Notes of testimony, 3/2/10 at 15.)         However,
          appellant assured the court that he was lucid and
          understood the consequences of pleading guilty.
          (Id.) Appellant testified that his medication did not
          affect his ability to understand the proceedings and
          think clearly. (Id. at 24.)

                On March 8, 2010, appellant filed a timely
          post-sentence motion to withdraw his guilty plea,
          asserting that he was unable to understand the
          proceedings due to his mental health condition. That
          same date, March 8, 2010, appellant’s post-sentence
          motion was denied and court-appointed counsel was
          granted permission to withdraw.[Footnote 2]
          Subsequently, appellant filed a pro se motion to
          withdraw guilty plea on March 22, 2010. According
          to the criminal docket, this motion was denied on
          March 31, 2010.[Footnote 3]

               [Footnote 2] Komron Jon Maknoon, Esq.,
               was appointed to represent appellant on
               December 14, 2009, following the
               withdrawal of Arnold I. Klein, Esq.
               Attorney     Maknoon    entered      his
               appearance on December 23, 2009.

               [Footnote 3] The docket indicates that
               the March 31, 2010 order cannot be
               located as of February 1, 2012.

                No direct appeal was filed; however, on
          May 21,    2010,    appellant   filed   a  pro    se
          PCRA[Footnote 4] petition. Counsel was appointed,
          and filed an amended petition on appellant’s behalf
          on January 25, 2011, alleging, inter alia, that
          Attorney Maknoon was ineffective for failing to
          protect appellant’s direct appeal rights. By order
          filed March 2, 2011, appellant’s direct appeal rights


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           were reinstated nunc pro tunc, and appellant filed
           notice of appeal the same day.

                  [Footnote 4] Post-Conviction Relief Act,
                  42 Pa.C.S.A. §§ 9541-9546.

Commonwealth        v.   McMullen,     No.   422   WDA   2011,         unpublished

memorandum at 1-3 (Pa.Super. filed July 17, 2012).            Among appellant’s

issues on appeal was whether he was entitled to additional credit for time

served from January 7-8, 2008.       Appellant was awarded credit time from

January 9, 2008; however, apparently he was arrested on January 7, 2008,

and remained incarcerated from that date until sentencing. Id. at 5. The

Commonwealth conceded that appellant was owed two additional days of

credit time towards his sentence.       Id. at 6.     Therefore, we vacated

appellant’s sentence and remanded with instructions to award two days’

additional credit time towards appellant’s sentence. Id. We affirmed in all

other respects. Id. at 1.

     On December 27, 2012, our supreme court denied allowance of

appeal. Commonwealth v. McMullen, No. 335 WAL 2012 (per curiam).

On May 22, 2013, appellant appeared for re-sentencing.            At that time,

appellant requested to withdraw his March 2, 2010 guilty plea.            The trial

court denied the request and re-imposed the original negotiated sentence of

10 to 20 years’ incarceration, plus an additional two days of credit for time

served from January 7-8, 2008. (Notes of testimony, 5/22/13 at 20.) This

timely   appeal   followed.    Appellant     has   complied     with    Pa.R.A.P.,



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Rule 1925(b), 42 Pa.C.S.A., and the trial court has filed an opinion. Counsel

for appellant, Thomas N. Farrell, Esq., has filed a petition to withdraw and

accompanying Anders brief.1

      Appellant has raised the following issues for this court’s review:

            1.     Did the trial court err in failing to grant the
                   motion to withdraw the guilty plea and applied
                   the wrong standard, when the request was
                   made before sentencing and the Appellant said
                   he was innocent?

            2.     Whether the trial court abused its discretion in
                   honoring the plea bargain and not sentencing
                   Appellant to a lesser sentence when he
                   testified against another person charged with
                   criminal homicide and was promised by the
                   police that this information would be brought
                   to the attention of the trial court and probably
                   getting time off his sentence?

Appellant’s brief at 5.

      Counsel having filed a petition to withdraw, we reiterate that “[w]hen

presented with an Anders brief, this court may not review the merits of the

underlying issues without first passing on the request to withdraw.”

Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa.Super. 2010), citing

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007)

(en banc) (citation omitted).

            In order for counsel to withdraw from an appeal
            pursuant to Anders, certain requirements must be
            met, and counsel must:


1
 See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).


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           (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.

Id., quoting Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

     Upon review, we find that Attorney Farrell has complied with all of the

above requirements. In addition, Attorney Farrell served appellant a copy of

the Anders brief, and advised him of his right to proceed pro se or hire a

private attorney to raise any additional points he deemed worthy of this

court’s review.    Appellant has not responded to counsel’s motion to

withdraw. As we find the requirements of Anders and Santiago are met,

we will proceed to the issues on appeal.

     In his first issue on appeal, appellant claims that the more liberal

pre-sentencing standard of “any fair and just reason” should apply to his




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request to withdraw his guilty plea.2 We disagree. In Commonwealth v.

Muntz, 630 A.2d 51 (Pa.Super. 1993), we addressed this precise issue.

There, the appellant pled guilty to seven counts of robbery and two counts of

simple assault, and was sentenced to an aggregate of 8 to 16 years’

incarceration.   Id. at 52.     The appellant did not request allowance to

withdraw his plea before his original sentencing. Id. at 54. On appeal, this

court vacated the first sentence and remanded the matter to the trial court

for re-sentencing. Id. at 52.

      At the hearing prior to re-sentencing, the appellant requested

permission to withdraw his guilty plea.      Id.   The trial court denied the

request and imposed a new sentence of 6 to 12 years followed by 4 years of

probation. Id. On appeal, as in the instant case, the appellant argued that

his request to withdraw his guilty plea should have been considered as a

pre-sentence motion for withdrawal.        Id. at 53.   This court disagreed,

stating,

            here, appellant petitioned to withdraw his guilty plea
            only after sentence had been imposed for the first
            time.   Even though appellant made his request
            before his resentencing, this does not negate the fact
            that appellant failed to request allowance to
            withdraw his plea before his original sentencing.
            Therefore, appellant’s request falls under the
            scrutiny of post-sentencing standard of “manifest


2
  As explained further infra, in our prior memorandum, this court remanded
for a correction of appellant’s sentence, not for appellant to revive his
previously denied motion to withdraw guilty plea. However, as this is an
Anders case, we will review the issue.


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            injustice” rather than the pre-sentencing standard of
            “fair and just reason.”

Id. at 54 (footnote omitted).

       Similarly, here, appellant did not request to withdraw his guilty plea

until after his original sentencing.    Therefore, appellant must demonstrate

prejudice on the order of a manifest injustice.

       “When considering a petition to withdraw a plea submitted to a trial

court after sentencing, it is well-established that a showing of prejudice on

the order of manifest injustice is required before withdrawal is properly

justified.” Commonwealth v. Byrne, 833 A.2d 729, 737 (Pa.Super. 2003),

quoting Commonwealth v. Johns, 812 A.2d 1260, 1261 (Pa.Super. 2002)

(emphasis in original).

            The standard for withdrawal of a guilty plea after
            imposition of sentence is much higher [than the
            standard applicable to a presentence motion to
            withdraw]; a showing of prejudice on the order of
            manifest injustice is required before withdrawal is
            properly justified.   A plea rises to the level of
            manifest injustice when it was entered into
            involuntarily, unknowingly, or unintelligently.

Id.,   quoting   Commonwealth      v.    Muhammad,      794   A.2d   378,   383

(Pa.Super. 2002) (citations and internal quotation marks omitted).

            A showing of manifest injustice is required after
            imposition of sentence since, at this stage of the
            proceeding,    permitting     the  liberal standard
            enunciated in [the presentence setting] might
            encourage the entrance of a plea as a ‘sentence
            testing device.’ We note that disappointment by a
            defendant in the sentence actually imposed does not
            represent manifest injustice.


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Id. (citations omitted).

        Here, appellant falls well short of such a showing.        As stated above,

the trial court conducted a thorough and probing plea colloquy on March 2,

2010,    establishing   that    appellant   was   entering   the   plea   knowingly,

intelligently, and voluntarily.      Appellant’s assertions of actual innocence

directly contradict his statements during the plea colloquy.         (See notes of

testimony, 3/2/10 at 24 (“Are you pleading guilty to these Informations and

to these charges because you’re in fact guilty?        THE DEFENDANT: Yes.”).

See Commonwealth v. Stork, 737 A.2d 789, 790-791 (Pa.Super. 1999),

appeal denied, 764 A.2d 1068 (Pa. 2000) (“A defendant is bound by the

statements he makes during his plea colloquy, and may not assert grounds

for withdrawing the plea that contradict statements made when he pled.”),

citing Commonwealth v. Lewis, 708 A.2d 497 (Pa.Super. 1998).                  While

appellant may be disappointed with his sentence, this does not constitute a

“manifest injustice” permitting appellant to withdraw his plea.              Byrne,

supra.

        In his second issue on appeal, appellant claims that the trial court

abused its discretion in re-imposing the agreed upon sentence of 10 to

20 years’ incarceration.       Appellant argues that the trial court should have

taken into account his cooperation in an unrelated homicide case and

imposed a lesser sentence. According to appellant, the police promised him




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time off his sentence in exchange for his truthful testimony in that case.

(Notes of testimony, 5/22/13 at 6-7.)

        Before addressing the merits of this claim, we note that according to

counsel, it is superfluous to include a Rule 2119(f)3 statement in an Anders

brief because under Santiago, supra, counsel is required to explain why

the appeal is frivolous. (Appellant’s brief at 26-27.) Therefore, including a

Rule 2119(f) statement explaining why there is a substantial question as to

the appropriateness of the sentence imposed would work at cross-purposes

with counsel’s responsibilities under Santiago.                 (Id.)    We acknowledge

counsel’s dilemma, however, it is established that even in the Anders

context, the Rule 2119(f) statement is required with respect to discretionary

sentencing challenges.           Commonwealth v. Wilson, 578 A.2d 523, 525

(Pa.Super. 1990).              Nevertheless, because this court has a duty to

independently review the record to determine whether, in fact, the appeal is

wholly     frivolous,     we    will   examine   the   merits    of     the   issue.   Id.;




3
    Pa.R.A.P. 2119(f) states:

               (f)      Discretionary aspects of sentence.                An
                        appellant who challenges the discretionary aspects
                        of a sentence in a criminal matter shall set forth in
                        his brief a concise statement of the reasons relied
                        upon for allowance of appeal with respect to the
                        discretionary aspects of a sentence. The statement
                        shall immediately precede the argument on the
                        merits with respect to the discretionary aspects of
                        sentence.


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Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa.Super. 2009) (Anders

requires review of issues otherwise waived on appeal).

        First, we observe that although we remanded for re-sentencing for the

award of an additional two days of credit time, we affirmed in all other

respects. McMullen, supra at 1. We characterized the purpose of remand

as “for modification of sentence.”     Id.     Reading the memorandum as a

whole, it seems clear that it was not our intention to remand for

re-sentencing to a new sentence but rather for a sentencing correction.4

Appellant’s negotiated sentence of 10 to 20 years, following a thorough and

complete guilty plea colloquy, stands.          As such, this is not truly a

discretionary aspects of sentencing challenge.

        Second, the crux of appellant’s argument, that the trial court, on

remand, should have considered his cooperation with authorities in an

unrelated homicide trial, misses the mark where his testimony in that case

occurred after his original sentencing.       As the assistant district attorney

explained,

              The most that I thought his testimony could ever do
              to assist [appellant] was perhaps to assist him in
              parole. That if the Parole Board knew that he had
              cooperated in a homicide or reached out and testified
              that maybe he could get paroled at his minimum, but
              he had been sentenced already and I was under the
              impression that was, you know, not something that
              was going to change. Although I wasn’t party to the
              conversations that [appellant] had with either
              Detectives Leheny, Smith, or Evans.

4
    In fact, this author also wrote the prior memorandum.


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Notes of testimony, 5/22/13 at 11-12.          The trial court did not abuse its

discretion in re-sentencing appellant to the bargained for sentence of 10 to

20 years, with the additional two days’ credit for time served as directed by

this court. There is no merit here.

      For the reasons discussed above, we determine that appellant’s issues

on appeal are wholly frivolous and without merit.        Furthermore, after our

own independent review of the record, we are unable to discern any

additional   issues   of   arguable   merit.       Therefore,   we   will   grant

Attorney Farrell’s petition to withdraw and affirm the judgment of sentence.

      Petition to withdraw granted. Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/16/2015




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