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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                          :
AARON JAMES BRESSI,                       :        No. 1791 MDA 2016
                                          :
                         Appellant        :


         Appeal from the Judgment of Sentence, September 29, 2016,
           in the Court of Common Pleas of Northumberland County
               Criminal Division at Nos. CP-49-CR-0000961-2015,
                            CP-49-CR-0000962-2015


BEFORE: GANTMAN, P.J., SHOGAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED OCTOBER 25, 2017

        Aaron James Bressi appeals from the September 29, 2016 judgment of

sentence entered in the Court of Common Pleas of Northumberland County

after he pled nolo contendere to one count of simple assault and one count

of harassment.1     The trial court sentenced appellant to two consecutive

one-year terms of probation.         Amy Stoak, Esq., of the Northumberland

County Public Defender’s Office has filed a petition to withdraw, alleging that

the appeal is frivolous, accompanied by an Anders brief.2       We will grant

counsel’s withdrawal petition and affirm the judgment of sentence.




1   18 Pa.C.S.A. §§2701(a)(3) and 2709(a)(4), respectively.

2See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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      The trial court set forth the following procedural history:

            On September 29, 2016, [appellant] was before the
            court whereby [appellant] entered a plea of no
            contest to the offense of Simple Assault on docket
            CR-2015-961 and the offense of Harassment on
            docket CR-2015-962.          Immediately thereafter[,
            appellant] was sentenced within the standard range
            to [one year of] probation on CR-2015-961 and one
            year [of] probation on CR-2015-962, to be served
            consecutive to CR-2015-961.         Seven days later,
            [appellant] filed his Motion to Withdraw Plea in which
            he asserted his plea was not entered knowingly,
            intelligently and/or voluntarily.    The motion was
            denied without a hearing on October 12th, 2016, as
            there were no allegations therein that could support
            this contention.

Trial court statement in lieu of opinion, 1/19/17 at 1.

      The record further reflects that appellant filed a timely notice of appeal

and timely complied with the trial court’s order to file a concise statement of

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

court then filed a statement in lieu of a Rule 1925(a) opinion.

      Appellant raises the following issues for our review:3

            [1.]   Whether the trial court erred in finding that
                   [a]ppellant’s pleas were knowing, voluntary,
                   and intelligently entered[?]

            [2.]   Whether the trial court erred in denying
                   [a]ppellant’s post-sentence motion to withdraw
                   his pleas[?]

Appellant’s brief at 6.




3 We note that the Commonwealth elected against filing an appellee’s brief in
this matter.


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     On July 24, 2017, Attorney Stoak filed in this court a petition to

withdraw as counsel and an Anders brief, wherein Attorney Stoak states

that there are no non-frivolous issues preserved for our review.

           A request by appointed counsel to withdraw pursuant
           to Anders and Santiago gives rise to certain
           requirements and obligations, for both appointed
           counsel and this Court.        Commonwealth v.
           Flowers, 113 A.3d 1246, 1247-1248 (Pa.Super.
           2015).

                 These requirements 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).
                 This Court has 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 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


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                      pro se or raise additional
                      points worthy of the Court’s
                      attention.

                Woods, 939       A.2d   at   898   (citations
                omitted).

                There are also requirements as to the
                precise content of an Anders brief:

                      The     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.

          Id. at 1248. If this Court determines that appointed
          counsel has met these obligations, it is then our
          responsibility “to make a full examination of the
          proceedings and make an independent judgment to
          decide whether the appeal is in fact wholly frivolous.”
          Id. at 1248. In so doing, we review not only the
          issues identified by appointed counsel in the Anders
          brief, but examine all of the proceedings to “make
          certain that appointed counsel has not overlooked


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            the existence of potentially non-frivolous issues.”
            Id.

Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).

      Our review of Attorney Stoak’s petition to withdraw, supporting

documentation, and Anders brief reveals that she has complied with all of

the foregoing requirements. We note that counsel also furnished a copy of

the brief to appellant, advised him of his right to retain new counsel, proceed

pro se, and/or raise any additional points that he deems worthy of this

court’s attention,4 and attached to her petition to withdraw a copy of the

letter she sent to appellant as required under Commonwealth v. Millisock,

873 A.2d 748, 751 (Pa.Super. 2005).        See Commonwealth v. Daniels,

999 A.2d 590, 594 (Pa.Super. 2010) (“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 Millisock that remain binding legal precedent.”). As Attorney Stoak has

complied with all of the requirements set forth above, we conclude that

counsel has satisfied the procedural requirements of Anders.




4 We note that appellant filed a response to Attorney Stoak’s petition to
withdraw and Anders brief. In that response, appellant again challenges his
no-contest plea. He also states that Attorney Stoak “has 2015 were [sic] it
should say 2016 and many more non true [sic] facts and mistakes that need
to be disscussed [sic] in front of a Judge in the Superior Court[.]”
(Appellant’s pro se response to Anders brief and petition to withdraw,
8/4/17.)


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     Once counsel has met her obligations, as Attorney Stoak has done

here, “it then becomes the responsibility of the reviewing court to make a

full examination of the proceedings and make an independent judgment to

decide whether the appeal is in fact wholly frivolous.” Santiago, 978 A.2d

at 355 n.5. Thus, we now turn to the merits of appellant’s appeal.

     At the outset, we note that appellant pled nolo contendere, rather

than guilty to the charges at issue. “[I]n terms of its effect upon a case,

[however,] a plea of nolo contendere is treated the same as a guilty plea.”

Commonwealth v. V.G., 9 A.3d 222, 226 (Pa.Super. 2010) (citation

omitted). As such, we are mindful of the following:

           [A]fter the court has imposed a sentence, a
           defendant can withdraw his guilty plea only where
           necessary    to   correct  a    manifest    injustice.
           [P]ost-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, 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 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 Rule 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


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            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. Prendes, 97 A.3d 337, 352 (Pa.Super. 2014) (internal

citations and quotations omitted), appeal denied, 105 A.3d 736 (Pa. 2014).

      Additionally, “a defendant is bound by the statements which he makes

during his plea colloquy.”   Commonwealth v. Barnes, 687 A.2d 1163,

1167 (Pa. 1997) (citations omitted). Therefore, a defendant “may not assert

grounds for withdrawing the plea that contradict statements made when he

pled guilty,” and he cannot recant the representations he made in court

when he entered his guilty plea. Id. (citation omitted). Moreover, the law

does not require that a defendant be pleased with the outcome of his

decision to plead guilty. The law only requires that a defendant’s decision to

plead guilty be made knowingly, voluntarily, and intelligently.          See

Commonwealth v. Moser, 921 A.2d 526, 528-529 (Pa.Super. 2007).

      Here, appellant claims that his pleas were not knowing, voluntary, or

intelligent and, as such, the trial court erred in denying his motion to

withdraw those pleas. The record, however, belies appellant’s claim. The

record reflects that appellant read, completed, and signed an extensive

written nolo contendere plea colloquy, which is part of the certified record.



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(Appellant’s guilty plea/nolo contendere plea, 9/30/16.5)       On that form,

appellant affirmed, in writing, among other things, (i) that appellant’s

decision to plead no contest was appellant’s decision and his alone; (ii) that

his lawyer explained to him the elements of the offenses to which he pled no

contest; (iii) that he understood the facts and circumstances of the charges

against him; (iv) that he understood that he did not need to enter a plea,

but was able to plead not guilty and go to trial; (v) that he fully discussed

the plea colloquy with his lawyer and was satisfied with the advice and

representation that his lawyer gave him; (vi) that no one induced his plea by

promise, threat, or anything else; and (vii) that he read the entire written

colloquy, understood its full meaning, and still wanted to enter the plea.

(Id.)

        The record further reflects that the sentencing court conducted an oral

colloquy wherein appellant acknowledged that he did not wish to go to trial,

but wanted to enter his plea. (Notes of testimony, 9/29/16 at 3.) During

that colloquy, appellant acknowledged his signature on the petition for entry

of nolo contendere plea, which also included the executed plea colloquy.

(Id. at 4.) Appellant affirmed that after he spoke with his lawyer, appellant

agreed that the Commonwealth had sufficient evidence to obtain convictions,

and that appellant, therefore, wished to enter the no-contest pleas.      (Id.




5 Appellant’s written guilty plea/nolo contendere plea was docketed on
September 30, 2016.


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at 6.)    He further acknowledged that he was satisfied with his attorney’s

representation, was aware of the penalties he faced, was not suffering from

a mental illness, and was not under the influence. (Id. at 6-8.) Appellant

also affirmed that he understood the rights that he was giving up by

pleading no contest, including the right to a jury trial and direct-appeal

rights had a jury found him guilty. (Id. at 7.)

         After thoroughly reviewing the record with respect to appellant’s

challenge to his nolo contendere pleas, we conclude that the totality of the

circumstances surrounding appellant’s entry of those pleas discloses that

appellant fully understood the nature and consequences of his pleas and that

he entered those pleas knowingly, intelligently, and voluntarily.

         Additionally, our independent review of the entire record has not

disclosed any potentially non-frivolous issues.      Consequently, we grant

counsel’s petition to withdraw, and we affirm the judgment of sentence.

         Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/25/2017




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