J-S09032-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROBERT REESE                               :
                                               :
                       Appellant               :   No. 1406 EDA 2019

          Appeal from the Judgment of Sentence Entered April 2, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0007746-2018


BEFORE:      SHOGAN, J., LAZARUS, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                          April 1, 2020

        Appellant, Robert Reese, appeals from the judgment of sentence of two

to four years of confinement followed by two years of probation, which was

imposed after he pleaded guilty to aggravated assault and possessing

instruments of crime (“PIC”).1 With this appeal, appellate counsel has filed a

petition to withdraw and an Anders2 brief, stating that the appeal is wholly

frivolous.   After careful review, we affirm and grant counsel’s petition to

withdraw.

        The facts underlying this appeal are as follows:


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 2702(a) and 907(a), respectively. The aggravated assault
charge was graded as a felony of the second degree.
2   Anders v. California, 386 U.S. 738 (1967).
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      On October 11th, 2018, at approximately 1:25 in the afternoon,
      the complainants Jacqueline Soder and Andrea Elmaghraby, were
      sitting on the steps outside of [a] home on the 2300 block of East
      Clearfield Street in the City and County of Philadelphia.

      While sitting on that front step, [Appellant] drove onto that block
      in a blue van. [Appellant] then drove his vehicle off of the street
      up onto the sidewalk and into [Elmaghraby’s] leg.

      He the[n] put the car in reverse and attempted to go towards the
      other complainant, Ms. Soder. Ms. Soder was not struck by the
      van, however this incident was observed by 24th Police District
      Officers Cristina Quintez and Sergeant Armstrong.

      Upon seeing this incident, Officer Quintez and Sergeant Armstrong
      did follow [Appellant] who fled, and were able to . . . stop him at
      the intersection of Memphis [Street] and Allegheny Avenue in the
      City and County of Philadelphia.

      [Elmaghraby] did spend several days from the 11th to the 15th at
      Temple Hospital where she did receive surgery for [a] broken tibia
      and a rod was inserted into her leg.

      Ms. Soder did not have injury as a result of this incident.

N.T., 4/2/2019, at 38-40.

      On April 2, 2019, after six jurors had already been selected, Appellant

informed the trial court that he was not satisfied with his attorney but was

unwilling to accept the trial court’s offer of new counsel. Id. at 12. Following

a lunch recess, Appellant requested that he have an opportunity “to see” the

complainants, who were in the back of the courtroom. Id. at 23. Immediately

thereafter, Appellant agreed to a negotiated guilty plea. Id. at 24-25.

      During the oral plea colloquy, the following exchanges occurred between

Appellant and the trial court:

      THE COURT:        Have you ever been treated or are you currently
      being treated for any type of mental illness?


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      [APPELLANT]:      No.

      THE COURT:        Sir, are you under the influence of any drugs,
      alcohol, or medication today?

      [APPELLANT]:      I take heart medicine. . . .

      [THE COURT:] Do any of those medications impact your ability
      to understand what’s going on here today?

      [APPELLANT]:      No.

      THE COURT:         Do any of those medications impact or interfere
      with your ability to communicate and understand your attorney?

      [APPELLANT]:      No.

Id. at 25-27.

      The trial court then confirmed that Appellant understood the nature of

the charges to which he was pleading, the factual basis for the plea, the

permissible range of sentences and fines, and that he would have had a right

to trial by jury had he proceeded to trial. Id. at 29-30, 38-40. Appellant also

executed a written guilty plea colloquy, the cover sheet of which reiterated

the content of the oral guilty plea colloquy and added that Appellant

understood “that the judge is not bound by the terms of any plea agreement

between [him]self, [his] attorney, and the attorney for the Commonwealth

unless the judge accepts such agreement” and that he is “presumed innocent

until [he is] proven guilty.” Colloquy for Plea of Guilty / Nolo Contendere,

4/2/2019. The written guilty plea colloquy further explained the presumption

of innocence as follows:   “That means that I start out innocent—and stay

innocent unless the District Attorney proves I committed the crime(s). I do

not have to prove anything.” Written Guilty Plea Colloquy, 4/2/2019, at 1.

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       Following the guilty plea colloquy, the trial court imposed the negotiated

sentence of two to four years of incarceration for aggravated assault and a

consecutive two-year probation for PIC. N.T., 4/2/2019, at 50-51.

       On April 12, 2019, Appellant filed a timely post-sentence motion to

withdraw his guilty plea, which the trial court denied on April 24, 2019. On

May 9, 2019, Appellant filed this timely direct appeal.3

       On October 16, 2019, appellate counsel filed an Anders brief presenting

the question of whether any of the following issues have arguable merit:

(1) whether the trial court erred in its denial of Appellant’s post-sentence

motion, because (a) Appellant’s plea was invalid and/or (b) Appellant was not

competent to enter a plea; and (2) whether the trial court imposed a legal

sentence. See Anders Brief at 6, 11-13, 15.

       On October 16, 2019, appellate counsel sent a letter to Appellant,

informing Appellant that he intended to file a petition for leave to withdraw,

and he filed his petition to withdraw that same day. Appellant has not filed a

pro se response to that petition.

       “[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. Blauser, 166 A.3d 428, 431 (Pa. Super.

2017). An Anders brief shall comply with the requirements set forth by the


____________________________________________


3Appellant filed his statement of errors complained of on appeal on July 8,
2019. The trial court did not file an opinion.

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Supreme Court of Pennsylvania in Commonwealth v. Santiago, 978 A.2d

349, 361 (Pa. 2009):

      [W]e hold that in the Anders brief that accompanies court-
      appointed counsel’s petition to withdraw, counsel 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.

Counsel seeking to withdraw on direct appeal must also meet the following

obligations to his or her client:

      Counsel . . . 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. Schmidt, 165 A.3d 1002, 1006 (Pa. Super. 2017)

(citations and internal brackets and quotation marks omitted).        “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   frivolous.”

Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en

banc) (quoting Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super.

2004)). Finally, “[w]e must also ‘conduct an independent review of the record

to discern if there are any additional, non-frivolous issues overlooked by



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counsel.’”   In re J.D.H., 171 A.3d 903, 908 (Pa. Super. 2017) (quoting

Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015)

(footnote omitted)).

      In this appeal, we observe that appellate counsel’s October 16, 2019,

correspondence to Appellant provided a copy of the Anders brief to Appellant

and advised Appellant of his right either to retain new counsel or to proceed

pro se on appeal to raise any points he deems worthy of the court’s attention.

Further, appellate counsel’s Anders brief, at 7-9, complies with prevailing law

in that counsel has provided a procedural and factual summary of the case

with references to the record.      Appellate counsel additionally advances

relevant portions of the record that arguably support Appellant’s claims that

his plea was invalid and that he was not competent to enter a plea. Id. at

13-14. However, appellate counsel believes that there is nothing in the record

that arguably supports a challenge to the legality of Appellant’s sentence. Id.

at 15. Ultimately, appellate counsel cites his reasons and conclusion that “a

direct appeal is frivolous, because there are no meritorious issues that could

be raised.” Id. at 16. Counsel’s Anders brief and procedures hence comply

with the requirements of Santiago and Schmidt. We therefore proceed to

conduct an independent review to ascertain whether the appeal is indeed

wholly frivolous.

      Appellant first challenges the trial court’s denial of his post-sentence

motion to withdraw his guilty plea. Id. at 11.


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      We begin by setting forth our standard of review.         In
      Commonwealth v. Broaden, 980 A.3d 124 (Pa.Super. 2009),
      we summarized the principles governing post-sentence motions
      to withdraw pleas:

         [P]ost-sentence motions for withdrawal are subject to
         higher scrutiny since courts strive to discourage entry of
         guilty pleas as sentence-testing devices. A defendant must
         demonstrate that manifest injustice would result if the court
         were to deny his post-sentence motion to withdraw a guilty
         plea. Manifest injustice may be established if the plea was
         not tendered knowingly, intelligently, and voluntarily. In
         determining whether a plea is valid, the court must examine
         the totality of circumstances surrounding the plea. A
         deficient plea does not per se establish prejudice on the
         order of manifest injustice.

      Id. at 129 (citations omitted). “It is well-settled that the decision
      whether to permit a defendant to withdraw a guilty plea is within
      the sound discretion of the trial court.” Commonwealth v. Hart,
      174 A.3d 660, 664 (Pa.Super. 2017) (applying abuse of discretion
      in post-sentencing context). The term discretion

         imports the exercise of judgment, wisdom and skill so as to
         reach a dispassionate conclusion, and discretionary power
         can only exist within the framework of the law, and is not
         exercised for the purpose of giving effect to the will of the
         judges. Discretion must be exercised on the foundation of
         reason, as opposed to prejudice, personal motivations,
         caprice or arbitrary action. Discretion is abused when the
         course pursued represents not merely an error of judgment,
         but where the judgment is manifestly unreasonable or
         where the law is not applied or where the record shows that
         the action is a result of partiality, prejudice, bias or ill will.

      Commonwealth v. Shaffer, 551 Pa. 622, 712 A.2d 749, 751
      (1998) (citation omitted).

Commonwealth v. Kehr, 180 A.3d 754, 756-57 (Pa. Super. 2018).

      Appellant specifically argues that his plea was invalid. Anders Brief at

12.




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     “A person who elects to plead guilty is bound by the statements he

makes in open court while under oath and may not later assert grounds for

withdrawing the plea which contradict the statements he made at his plea

colloquy.” Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super.

2011); accord Commonwealth v. Wilcox, 174 A.3d 670, 674 (Pa. Super.

2017), appeal denied, 184 A.3d 545 (Pa. 2018).

     Pa.R.Crim.P. 590, which pertains to procedures for entering pleas
     and plea agreements, requires pleas to be entered in open court,
     and specifies that the trial judge must make inquiries, on the
     record, to determine whether the plea is voluntarily and
     understandingly tendered. The comments to Pa.R.Crim.P. 590
     provide that at a minimum, the court should make the following
     inquiries:

        (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?

     Pa.R.Crim.P. 590, Comment.

Commonwealth v. McGarry, 172 A.3d 60, 66-67 (Pa. Super. 2017)

(footnote omitted), appeal denied, 185 A.3d 966 (Pa. 2018).




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       Appellant concedes that the trial court inquired into his understanding

of the first, second, third, and fifth factors from the Comment to Pa.R.Crim.P.

590.    Anders Brief at 12-13 (citing N.T., 4/2/2019, at 29-30, 38-40).

However, he contends that the trial court did not inquire into his awareness

of the fourth and sixth factors. Id. at 13. While Appellant is correct that,

during his oral guilty plea colloquy, the trial court did not discuss the

presumption of innocence and the trial court’s power to reject the terms of a

plea agreement, Appellant affirmed that he understood these matters in his

written guilty plea colloquy. Colloquy for Plea of Guilty / Nolo Contendere,

4/2/2019; Written Guilty Plea Colloquy, 4/2/2019, at 1; see also Comment

to Pa.R.Crim.P. 590 (“nothing in the rule would preclude the use of a written

colloquy that is read, completed, signed by the defendant, and made part of

the record of the plea proceedings”). Accordingly, Appellant’s argument that

his plea was invalid due to the trial court’s failure to investigate his

understanding of these two factors is belied by the record, and he thereby

cannot demonstrate the manifest injustice required for this Court to find that

the trial court abused its discretion by denying his post-sentence motion to

withdraw his guilty plea. Kehr, 180 A.3d at 756-57.

       Appellant additionally urges this Court to find that the trial court erred

by denying his post-sentence motion to withdraw his plea on the basis that he

was not competent to enter into a plea due to the medications that he was

taking at the time. Anders Brief at 13-14. However, Appellant communicated


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to the trial court that he was only taking heart medication that did not impact

his comprehension or communication.         N.T., 4/2/2019, at 26-27.    He also

stated that he has never been treated for mental illness. Id. at 25. Appellant

is bound by these statements that he made in open court while under oath.

Yeomans, 24 A.3d at 1047; see also Wilcox, 174 A.3d at 674.

Consequently, Appellant cannot establish that his plea was not tendered

knowingly, intelligently, and voluntarily due to his lack of competency. See

Kehr, 180 A.3d at 756-57.

         Finally, Appellant maintains that his sentence was illegal. Anders Brief

at 15.

         “When reviewing the legality of a sentence, our standard of review is de

novo and our scope of review is plenary.” Commonwealth v. Lekka, 210

A.3d 343, 355 (Pa. Super. 2019) (citation omitted).

         In the current action, Appellant pleaded guilty to aggravated assault,

graded as a felony of the second degree, and to PIC. These counts bear a

maximum penalty of ten years of incarceration and of five years of

incarceration, respectively, for an aggregate maximum potential penalty of 15

years of incarceration. Instead, Appellant’s aggregate sentence was two to

four years of confinement for aggravated assault followed by two years of

probation for PIC; as this sentence was well under the statutory maximums,




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it was legal. See Commonwealth v. Bradley, 834 A.2d 1127, 1131 (Pa.

2003) (“An illegal sentence is one that exceeds the statutory limits.”).4

       Based on the foregoing, we agree with appellate counsel that the issues

raised by Appellant lack merit. See Goodwin, 928 A.2d at 291. In addition,

we have reviewed the certified record consistent with J.D.H., 171 A.3d at 908,

and Flowers, 113 A.3d at 1250, and have discovered no additional arguably

meritorious issues.       Therefore, we grant appellate counsel’s petition to

withdraw and affirm the trial court’s judgment of sentence.

       Judgment of sentence affirmed.              Petition to withdraw as counsel

granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/1/20




____________________________________________


4 Furthermore, the charges of aggravated assault and PIC do not merge for
sentencing purposes. Commonwealth v. Meekins, 644 A.2d 765, 766 (Pa.
Super. 1994).

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