J-S23044-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :    IN THE SUPERIOR COURT OF
                                               :    PENNSYLVANIA
                                               :
                                               :
              v.                               :
                                               :
MICHAEL DIGANGI,                               :
                                               :
                   Appellant                   :    No. 3086 EDA 2016

             Appeal from the Judgment of Sentence August 15, 2016
               in the Court of Common Pleas of Delaware County,
               Criminal Division, No(s): CP-23-CR-0004369-2016

BEFORE: OLSON, SOLANO and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                                  Filed May 19, 2017

        Michael DiGangi (“DiGangi”) appeals from the judgment of sentence

entered following guilty plea to driving under the influence of alcohol

(“DUI”)-general impairment.1 Counsel for DiGangi (“Counsel”) has filed an

Application to Withdraw from representation and a brief pursuant to Anders

v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009) (“the Anders brief”). We grant Counsel’s Application to

withdraw and affirm DiGangi’s judgment of sentence.

        On   October   16, 2014,     Digangi       was   charged   with   DUI-general

impairment and a second, related offense.            On August 15, 2016, DiGangi

entered a negotiated guilty plea to DUI-general impairment, and the

Commonwealth withdrew the second DUI charge.                   As part of his plea



1
    See 75 Pa.C.S.A. § 3802(a)(1).
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agreement, the trial court sentenced DiGangi to six months in jail, with

DiGangi to be paroled immediately.       The trial court further ordered that

DiGangi undergo a drug and alcohol evaluation and comply with the rules

and regulations of Adult Probation and Parole.        Finally, the trial court

imposed a $200 fine.

        DiGangi filed a post-sentence Motion to withdraw his guilty plea,

claiming that he had failed to tender a knowing, intelligent and voluntary

plea.    On August 25, 2016, the trial court denied DiGangi’s Motion, after

which DiGangi filed the instant timely appeal.       The trial court directed

DiGangi to file a Pa.R.A.P. 1925(b) Concise Statement of matters complained

of on appeal. Counsel instead informed the trial court that he intended to

file an Anders brief and withdraw from representation.

        “This Court must first pass upon counsel’s petition to withdraw before

reviewing the merits of the underlying issues presented by [an appellant].”

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

banc).

        Prior to withdrawing as counsel on a direct appeal under
        Anders, counsel must file a brief that meets the requirements
        established by our Supreme Court in Santiago. The brief 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


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         (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. 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. Nischan, 928 A.2d 349,
      353 (Pa. Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d
      40 (2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014).

After determining that counsel has satisfied these technical requirements of

Anders and Santiago, this Court must then “conduct an independent

review of the record to discern if there are any additional, non-frivolous

issues overlooked by counsel.”       Commonwealth v. Flowers, 113 A.3d

1246, 1250 (Pa. Super. 2015) (citations and footnote omitted).

      Here,   Counsel’s    Anders    brief   complies   with    the    above-stated

requirements. Namely, Counsel included a summary of the relevant factual

and procedural history; referred to portions of the record that could arguably

support DiGangi’s claim; and set forth his conclusion that DiGangi’s appeal is

frivolous.    Counsel     also   explained   his   reasons     for    reaching   that

determination, and supported his rationale with citations to the record and

pertinent legal authority.   Counsel’s Application to Withdraw explains that

Counsel has reviewed the record and believes that there are no non-frivolous



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issues that could be raised, and that Counsel forwarded to DiGangi a letter

advising DiGangi of the rights enumerated in Nischan and a copy of the

Anders brief.    Counsel attached a copy of the letter to his Application to

Withdraw.       Accordingly,   Counsel   has   complied   with   the   technical

requirements for withdrawal. We next determine whether DiGangi’s appeal

is frivolous.

      The Anders brief presents the following claim for our review:

“Whether [] Di[G]angi entered a knowing, voluntary and intelligent guilty

plea?”   Anders Brief at 1.      Specifically, DiGangi claims that the [trial]

[j]udge should have inquired further into [DiGangi’s] mental condition[,] and

whether it may have affected his ability to enter a knowing, voluntary and

intelligent plea.” Id. at 4. DiGangi asserts that statements made during the

guilty plea hearing should have alerted the trial court to DiGangi’s mental

condition, and required the trial court to conduct a further inquiry. Id. at

10.

      This Court has explained that,

      after the court has imposed a sentence, a defendant can
      withdraw his guilty plea only where necessary to correct a
      manifest injustice. Post-sentence motions for withdrawal are
      subject to higher scrutiny since courts strive to discourage the
      entry of guilty pleas as sentencing-testing devices.

                                       ***

      To be valid under the manifest injustice standard, a guilty plea
      must be knowingly, voluntarily and intelligently entered. A
      manifest injustice occurs when a plea is not tendered knowingly,
      intelligently, voluntarily, and understandingly. The Pennsylvania


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      Rules of Criminal Procedure mandate pleas be taken in open
      court and require the court to conduct an on-the-record colloquy
      to ascertain whether a defendant is aware of his rights and the
      consequences of his plea. Under [Pa.R.Crim.P.] 590, the court
      should confirm, inter alia, that a defendant understands: (1) the
      nature of the charges to which he is pleading guilty; (2) the
      factual basis for the plea; (3) he is giving up his right to trial by
      jury; (4) and the presumption of innocence; (5) he is aware of
      the permissible ranges of sentences and fines possible; and (6)
      the court is not bound by the terms of the agreement unless the
      court accepts the plea. The reviewing court will evaluate the
      adequacy of the plea colloquy and the voluntariness of the
      resulting plea by examining the totality of the circumstances
      surrounding the entry of that plea. Pennsylvania law presumes a
      defendant who entered a guilty plea was aware of what he was
      doing, and the defendant bears the burden of proving otherwise.

Commonwealth v. Kpou, 153 A.3d 1020, 1023-24                 (Pa. Super. 2016)

(citations, quotations, and original brackets omitted).

      At the plea hearing, the        trial court   inquired as to     DiGangi’s

understanding of the six factors set forth above. See N.T., 8/15/16, at 4-9.

DiGangi responded appropriately during the plea colloquy, and stated that

he understood each of the six areas of inquiry set forth above.         See id.

Regarding mental health, the trial court questioned DiGangi as follows:

      THE COURT: Do you have mental illness issues?

      [] DIGANGI: Well, I’ve been diagnosed before. And I’ve had it
      under control[,] I believe. But I think it’s – for a long time.

      THE COURT: In what?

      [] DIGANGI: It’s been in hand—I think I’ve had it in hand for a
      long time of it. That could be questioned, of course.

      THE COURT: Yeah.

      [] DIGANGI: But I’ve had—


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      THE COURT: Well, were you taking your medicine at the time
      this thing happened?

      [] DiGangi: Yes, I was.

      THE COURT: Are you telling me the truth?

      [] DIGANGI: Yes, I was And –

      THE COURT: Who follows you for mental illness? Do you see a
      doctor? Do you go to a clinic?

      [] DIGANGI: Well, I do see a doctor. I’m under the care of
      Michael Prime. And … I have psychiatrists that I see. I have
      regular lithium levels. Although it’s not court committed, but I
      still go.

      THE COURT: All right.

      [] DIGANGI: And I –

      THE COURT: All right. I’m going to add one further condition to
      the parole and that is that you have to comply with all mental
      health treatment and medication that’s been prescribed for you.

      [] DIGANGI: That’s fine, Your Honor.

Id. at 10.

      Our review discloses that throughout the hearing, DiGangi expressed

his understanding of the factual basis for, and consequences of his guilty

plea. See id. at 4-12. Further, the trial court conducted appropriate inquiry

regarding DiGangi’s mental health, as it impacted his ability to knowingly,

intelligently and voluntarily enter a guilty plea.   See id. at 10.   Thus, we

agree with the conclusion reached by Counsel, i.e., that the issue is without

merit, not supported by the record, and frivolous.



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     Finally, we have conducted our own independent review of the record

and found no additional, non-frivolous issues that could be raised by

DiGangi.   Accordingly, we grant Counsel’s Application to Withdraw, and

affirm DiGangi’s judgment of sentence.

     Application to Withdraw granted. Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/19/2017




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