J-S72034-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROY A. HARRELL, JR.,                       :
                                               :
                       Appellant.              :   No. 1120 MDA 2018


        Appeal from the Judgment of Sentence Entered, May 30, 2018,
                in the Court of Common Pleas of Berks County,
            Criminal Division at No(s): CP-06-CR-0002173-2016.


BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                        FILED FEBRUARY 04, 2019

       Roy Harrell, Jr. appeals from the judgment of sentence imposed after

he pled guilty to simple assault, resisting arrest, and defiant trespass.1

Harrell’s counsel filed an application to withdraw as counsel based upon

Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981) and its federal

predecessor Anders v. California, 386 U.S. 738 (1967). We conclude that

Harrell’s counsel complied with the procedural requirements to withdraw.

Further, after independently reviewing the record, we conclude that the appeal

is wholly frivolous. We, therefore, grant counsel’s application to withdraw and

affirm the judgment of sentence.




____________________________________________


118 Pa.C.S.A. § 2701(a)(1), 18 Pa.C.S.A. § 5104, and 18 Pa.C.S.A. §
3503(b)(1)(i).
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      The charges in this case arose out of an incident where Harrell was

trespassing on private property. Before the police arrived, he attacked and

injured a man. Harrell resisted arrest and, subsequently, had to be tazed due

to his aggressive behavior. The Commonwealth charged Harrell with several

offenses related to this incident.

      On May 30, 2018, Harrell entered an open guilty plea to simple assault,

resisting arrest, and defiant trespass. All other charges were dismissed. That

same day, the trial court sentenced him to an aggregate of two to four years

of incarceration with a total of 768 days of credit for time served and one year

of special probation.   A week later, on June 8, 2018, Harrell filed a post-

sentence motion to withdraw his guilty plea. The trial court denied Harrell’s

motion on June 22, 2018.

      Harrell filed a timely notice of appeal on July 6, 2018. Both Harrell and

the trial court complied with Pa.R.A.P. 1925. Harrell’s counsel filed a petition

to withdraw from this appeal claiming that it is frivolous.

      “When 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).    To determine whether it is appropriate for counsel to withdraw, we

must first consider whether counsel satisfied certain procedural requirements.

      In Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), the

Pennsylvania Supreme Court explained what is required to be contained within

an Anders brief:

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          [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 at 361. “While the Supreme Court in Santiago, set

forth the new requirements for an Anders brief, which are quoted above, the

holding   did   not   abrogate    the    notice   requirements   set   forth   in

[Commonwealth v. Millisock, 873 A.2d 748, 751 (Pa. Super. 2005)] that

remain binding precedent”. Daniels, 999 A.2d at 594. Thus, counsel seeking

to withdraw on direct appeal must satisfy the following obligations to his or

her client:

          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.

Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (citation

omitted). Our review reveals that Harrell’s counsel substantially complied with

the technical requirements of Anders and Santiago.

      “Once counsel has satisfied the above 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

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frivolous.”    Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa. Super.

2007) (en banc) (citation omitted); Santiago, 978 A.2d at 355 n.5. “In light

of the constitutional rights at issue, we must give Anders a most generous

reading and review ‘the case’ as presented in the entire record with

consideration first of issues raised by counsel.”        Commonwealth v.

Dempster, 187 A.23d 266, 272 (Pa. Super. 2018) (citing Anders, 286 U.S.

at 744).      “[T]his review does not require this Court to act as counsel or

otherwise advocate on behalf of a party. Rather, it requires us only to conduct

a simple review of the record to ascertain if there appear on its face to be

arguably meritorious issues that counsel, intentionally or not, missed or

misstated.” Id., 187 A.23d at 272. Thus, we now turn to the substantive

requirement of this analysis.

     Harrell has raised the following single issue on appeal:

      Whether the trial court erred when it denied Harrell’s petition to
      withdraw his guilty plea, even though said guilty plea was not
      made knowingly, intelligently, or voluntarily.

Anders Brief at 10. Harrell claims that his plea was not entered knowingly,

voluntarily, and intelligently. However, he does not specify why this is so. In

his post sentence motion, he merely asserted that “manifest injustice” would

ensue if he could not withdraw his guilty plea, without further detail. Anders

Brief at 18.

      The trial court noted that such boiler plate language and bare bone legal

conclusions, without more, renders the issue waived.      Trial Court Opinion,



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7/30/18 at 2. We agree. When an issue is not developed, it will be deemed

waived. Commonwealth v. A.W. Robl Transport., 747 A.2d 400, 405 (Pa.

Super. 2000).

      However, even if we were to consider the merits of this issue, we would

conclude that Harrell knowingly, voluntarily, and intelligently entered his guilty

plea. “There is no absolute right to withdraw a guilty plea, and the decision

as to whether to allow a defendant to do so is a matter within the sound

discretion of the trial court.” Commonwealth v. Pollard, 832 A.2d 517, 522

(Pa. Super. 2003). “To withdraw a plea after sentencing, a defendant must

make a showing of prejudice amounting to ‘manifest injustice’.” Id. “A plea

rises to the level of manifest injustice when it was entered into involuntarily,

unknowingly, or unintelligently.” Id.

       In order to ensure that a defendant understands the significance of the

plea and its consequences, the trial court is required to inquire into the

following areas during the plea colloquy: “(1) the nature of the charges; (2)

the factual basis of the plea; (3) the right to trial by jury; (4) the presumption

of innocence; (5) the permissible range of sentences; and (6) the judge’s

authority to depart from any recommended sentence.” Commonwealth v.

Baney, 860 A.2d 127, 132 (Pa. Super. 2004) (quoting Commonwealth v.

Muhammad, 794 A.2d 378 (Pa. Super. 2002)); Pa.R.Crim.P. 590, Comment.

On appeal, “[t]his Court evaluates the adequacy of the guilty plea colloquy

and the voluntariness of the resulting plea by examining the totality of the

circumstances surrounding the entry of that plea.” Baney, 794 A.2d at 132.

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        The record in this case shows that the trial court conducted a thorough,

on-the-record inquiry during the guilty plea colloquy. The trial court covered

each of the areas required by law.      Harrell’s responses to the trial court’s

inquiries were direct and unwavering. Additionally, during allocution, Harrell

informed the court that: “I believe that the judgments that I have seen are

fair.   So I decided to take an open plea.”      Considering the totality of the

circumstances surrounding Harrell’s plea, we conclude that Harrell entered a

knowing, voluntary, and intelligent plea of guilty, and that the trial court did

not abuse its discretion in denying his motion to withdraw.

        For the foregoing reasons, we conclude that the only issue Harrell raised

in this appeal is wholly frivolous. Furthermore, after an independent review

of the entire record, we conclude that no other issue of arguable merit exists.

Dempster, supra. Therefore, we grant counsel’s request to withdraw, and

we affirm the judgment of sentence.

        Petition to withdraw as counsel granted.        Judgment of sentence

affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/04/2019




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