J-S15014-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA


                   v.

ANGEL FELICIANO

                        Appellant                  No. 1781 EDA 2016


          Appeal from the Judgment of Sentence February 3, 2014
           In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0009715-2012


BEFORE: BOWES, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                             FILED MAY 22, 2017

      Angel Feliciano appeals nunc pro tunc from the judgment of sentence

of twenty-five to fifty years imprisonment that was imposed after he entered

a negotiated guilty plea to third-degree murder, conspiracy, and possession

of an instrument of crime (“PIC”).   Stephen O’Hanlon, Esquire, has filed a

petition 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). We grant counsel’s petition and affirm.

      The trial court succinctly summarized the factual basis for the guilty

plea as follows:
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       In mid-January, 2010, defendant was involved in a dispute over
       drug territory with the decedent, Kenneth Rolon. On January 22,
       2010, defendant was a passenger in a car being driven by his
       co-defendant, Willey Ortiz,[1] when defendant saw Rolon
       standing on a street corner. Ortiz pulled over to the corner and
       waved Rolon over to the car. When Rolon approached the car,
       defendant fired a .25 caliber pistol in Rolon's chest, killing him.
       N.T.[,] 2/3/14[,] at 34-37.

Trial Court Opinion, 6/29/16, at 2-3.

       The trial court accepted Appellant’s plea of guilty to third-degree

murder, conspiracy, and PIC, and immediately imposed the negotiated

aggregate sentence of twenty-five to fifty years incarceration. Specifically,

Appellant received twenty to forty years imprisonment for murder and a

consecutive term of five to ten years for conspiracy. No further penalty was

imposed on PIC. The aggregate sentence was imposed concurrently with a

sentence Appellant was then serving.

       Appellant filed a post-sentence motion seeking to withdraw his guilty

plea. The trial court denied the petition on April 15, 2014, and we dismissed

the ensuing appeal due to Appellant’s failure to file a brief. However, after

Appellant filed a timely PCRA petition with the assistance of appointed

counsel, Attorney O’ Hanlon, the PCRA court reinstated Appellant’s direct

appeal rights nunc pro tunc.            Appellant filed a timely appeal.   In his
____________________________________________


1
  A jury convicted Ortiz of third-degree murder, and we affirmed the ensuing
twenty-to-forty-year term of imprisonment imposed by the trial court.
Commonwealth v. Ortiz, 125 A.3d 438 (Pa.Super. 2015) (unpublished
memorandum filed).



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statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),

Appellant renewed his assertion that the trial court erred in denying his post-

sentence petition to withdraw the guilty plea.

      On October 11, 2016, Attorney O’Hanlon filed with this Court a petition

to withdraw from representation pursuant to Anders, and he filed a

Santiago brief outlining the claims that Appellant sought to assert on appeal

and explaining why each was frivolous.       Appellant has not responded to

Attorney O’Hanlon’s petition to withdraw. As we may not address the merits

of this appeal without first reviewing the request to withdraw, we review

counsel’s petition at the outset.   Commonwealth v. Cartrette, 83 A.3d

1030 (Pa.Super. 2013) (en banc).

      In order to be permitted to withdraw, counsel must meet three

procedural requirements: 1) petition for leave to withdraw and state that,

after making a conscientious examination of the record, counsel has

concluded that the appeal is frivolous; 2) provide a copy of the Anders brief

to the defendant; and 3) inform the defendant that he has the right to retain

private counsel or raise, pro se, additional arguments that the defendant

deems worthy of the court’s attention. Id.

      Attorney O’Hanlon’s petition to withdraw sets forth that he made an

extensive review of the record and applicable law and concluded that the

appeal was wholly frivolous. He informed Appellant that he was seeking to

withdraw and furnished him with a copy of the Anders brief.           Further,

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counsel told Appellant that he had the right to retain new counsel or could

proceed on a pro se basis and raise any additional issues he deemed worthy

of this Court’s review. A copy of counsel’s letter to Appellant is appended to

the petition to withdraw.       Thus, counsel complied with the procedural

aspects of Anders.

        We must now examine whether counsel’s Anders brief meets the

substantive elements of Santiago. Pursuant to Santiago, an Anders 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 (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, supra at 361.

        In his brief, counsel summarized the factual and procedural history of

the case and referenced the portions of the record that ultimately fail to

support any issues of merit.      Counsel delineated case law regarding post-

sentence requests to withdraw guilty pleas that establishes that Appellant’s

issue is frivolous. Thus, the brief is compliant with Santiago.

        Next, we consider the issue raised in the Anders brief, which

challenges the validity of Appellant’s guilty plea, i.e., whether Appellant

knowingly, intelligently, and voluntarily entered the guilty plea. Specifically,



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Attorney O’Hanlon queries whether the trial court erred in rejecting

Appellant’s post-sentencing request to withdraw his negotiated guilty plea.

See Anders brief at 8-11.

      In Commonwealth v. Pollard, 832 A.2d 517, 522 (Pa.Super. 2003)

(citations and quotation marks omitted), we observed as follows:

            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.         To
      withdraw a plea after sentencing, a defendant must make a
      showing of prejudice amounting to manifest injustice. A plea
      rises to the level of manifest injustice when it was entered into
      involuntarily, unknowingly, or unintelligently.    A defendant's
      disappointment in the sentence imposed does not constitute
      manifest injustice.

      The instant issue implicates the propriety of the trial court’s plea

colloquy. Prior to accepting a guilty plea, a trial court is required to conduct

an on-the-record plea colloquy, which inquires into the following areas:

      (1) Does the defendant understand the nature of the charges to
      which he or she is pleading guilty or nolo contendere?

      (2) Is there a factual basis for the plea?

      (3) Does the defendant understand that he or she has the right
      to trial by jury?

      (4) Does the defendant understand that he or she is presumed
      innocent until found guilty?

      (5) Is the defendant aware of the permissible range of sentences
      and/or fines for the offenses charged?

      (6) Is the defendant aware that the judge is not bound by the
      terms of any plea agreement tendered unless the judge accepts
      such agreement?

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Id. at 522-523; Pa.R.Crim.P. 590(b); see also Commonwealth v. Rush,

909 A.2d 805 (Pa.Super. 2006).

      Moreover,

             The guilty plea colloquy must affirmatively demonstrate
      that the defendant understood what the plea connoted and its
      consequences. Once a defendant has entered a plea of guilty, it
      is presumed that he was aware of what he was doing, and the
      burden of proving involuntariness is upon him. In determining
      whether a guilty plea was entered knowingly and voluntarily, a
      court is free to consider the totality of the circumstances
      surrounding the plea. Furthermore, nothing in the rule precludes
      the supplementation of the oral colloquy by a written colloquy
      that is read, completed, and signed by the defendant and made
      a part of the plea proceedings.

Commonwealth v. Bedell, 954 A.2d 1209, 1212-1213 (Pa.Super. 2008)

(citations and internal quotations omitted).

      During the plea colloquy in the case sub judice, Appellant confirmed

that he read, understood, and executed the written guilty plea colloquy.

N.T., 2/3/14, at 26-27.      Appellant stated that he did not have questions

about the written document and that he signed it of his free will. Id. at 27.

During   the   trial   court’s   oral   colloquy,   Appellant   stipulated   to   the

Commonwealth’s factual basis for the guilty plea, and verified that he was

offering the guilty plea because he committed the alleged offenses. Id. at

34-37. The court informed Appellant of the permissible range of sentences

and discussed his potential sentencing exposure. Id. at 25-27. It advised

Appellant of his right to a jury trial and the concomitant procedural rights he


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would be permitted to exercise during trial.   Id. at 28-29. Next, the trial

court explained the nature, elements, and grading of the offenses, and

outlined the presumption of innocence and the Commonwealth’s burden of

proof. Id. at 29-34. Finally, Appellant confirmed that he was satisfied with

counsel’s representation and reiterated that he was entering into the guilty

plea freely and voluntarily.   Id. at 42-43.     Thereafter, the trial court

accepted Appellant’s guilty plea as voluntary, knowing, and intelligent. Id.

at 43. In light of the foregoing evidence, we conclude the certified record

demonstrates that the trial court complied with the requirements outlined in

Pollard, supra and the comment to Rule 590(b).

     We have independently reviewed the certified record and found no

other preserved issues that would arguably support the direct appeal.

Having addressed the issue that might arguably support this appeal and

independently reviewed the certified record, we agree with Attorney

O’Hanlon’s position that the direct appeal is wholly frivolous.   Accordingly,

we grant counsel’s petition to withdraw pursuant to Anders, supra, and

Santiago, supra.

     Stephen O’Hanlon’s petition to withdraw from representation is

granted. Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/22/2017




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