J-S40041-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
             v.                            :
                                           :
JOHN WILLIAM POLAND,                       :
                                           :
                      Appellant            :          No. 3680 EDA 2015

          Appeal from the Judgment of Sentence December 3, 2015
              in the Court of Common Pleas of Wayne County,
             Criminal Division, No(s): CP-64-CR-0000157-2015

BEFORE: BOWES, MUNDY and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                     FILED NOVEMBER 23, 2016

      John William Poland (“Poland”) appeals from the judgment of sentence

imposed following his conviction of retail theft.         See 18 Pa.C.S.A.

§ 3929(a)(1).        Additionally, Ashley G. Zimmerman, Esquire (“Attorney

Zimmerman”), Poland’s counsel, has filed a Petition to Withdraw as counsel

and an accompanying brief pursuant to Anders v. California, 386 U.S. 738,

744 (1967).          We affirm and grant Attorney Zimmerman’s Petition to

Withdraw.

      On April 7, 2015, Poland purchased numerous items from a Wal-Mart

store in the amount of $282.93. Subsequently, Poland returned to Wal-Mart

and took the same items off the shelf, and left the store without paying.

The police stopped Poland’s vehicle in a traffic stop, wherein they discovered

the stolen items.      Poland admitted to stealing the items and was charged

with retail theft.
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       Poland waived his right to a preliminary hearing. Thereafter, Poland

was ordered to appear on September 18, 2015, for the purposes of

reviewing a guilty plea colloquy, but he failed to appear. A bench warrant

was issued for Poland, which was subsequently rescinded when he was

extradited from New Jersey to Wayne County. On October 8, 2015, Poland

pled guilty to retail theft. The trial court sentenced Poland to not less than 9

months nor more than 60 months in a State Correctional Institution (“SCI”).

The trial court also noted that Poland was Recidivism Risk Reduction

Incentive (“RRRI”) eligible, and his RRRI minimum was 6 months, 23 days.

The trial court additionally ordered Poland to pay a fine of $300, restitution

in the amount of $282.93, and submit to the drawing of DNA.

       Poland filed a timely Motion to Reconsider Sentence, which the trial

court denied. Poland filed a timely Notice of Appeal. Attorney Zimmerman

filed a Statement of Intent to File an Anders/McClendon1 Brief seeking to

withdraw as counsel in lieu of filing a concise statement of matters

complained of on appeal.

       In the Anders Brief, the following questions are presented for our

review:

       I. Did the trial court accept a valid guilty plea from [Poland] in
          the underlying matter?

       II. Did the sentencing court commit any errors that would entitle
           [Poland] to any relief?


1
    Commonwealth v. McClendon, 424 A.2d 1185 (Pa. 1981).


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Anders Brief at 7. Poland did not file a separate pro se brief, nor did he

retain alternate counsel for this appeal.

      We must first determine whether Attorney Zimmerman has complied

with the dictates of Anders in petitioning to withdraw from representation.

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

(stating that “[w]hen faced with a purported Anders brief, this Court may

not review the merits of any possible underlying issues without first

examining counsel’s request to withdraw.”) (citation omitted). Pursuant to

Anders, when an attorney believes that an appeal is frivolous and wishes to

withdraw as counsel, he or she must

      (1) petition the court for leave to withdraw stating that after
      making a conscientious examination of the record[,] counsel has
      determined the appeal would be frivolous; (2) file a brief
      referring to any issues that might arguably support the appeal,
      but which does not resemble a no-merit letter; and (3) furnish a
      copy of the brief to the defendant and advise him of his right to
      retain new counsel, proceed pro se, or raise any additional points
      he deems worthy of this Court’s attention.

Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012)

(citation omitted).

      Additionally, the Pennsylvania Supreme Court has determined that a

proper 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



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      case law, and/or statutes on point that have led to the
      conclusion that the appeal is frivolous.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

      Here, Attorney Zimmerman complied with each of the requirements

set forth in Anders by petitioning this Court for leave to withdraw,

submitting an Anders Brief referring to any issue that may have arguable

merit, and notifying Poland of the request to withdraw and advising him as

to his rights moving forward.         Further, the Anders Brief meets the

standards set forth in Santiago by providing a factual summary of Poland’s

case, with support for Attorney Zimmerman’s conclusion that the trial court

accepted a valid guilty plea and sentenced Poland without error, rendering

Poland’s appeal wholly frivolous.        Because Attorney Zimmerman has

complied   with   the    procedural   requirements       for   withdrawing   from

representation, we will independently review the record to determine

whether Poland’s appeal is, in fact, wholly frivolous.

      In his first claim, Poland challenges the validity of the guilty plea.

Anders Brief at 11-12.

            Our law is clear that to be valid, a guilty plea must be
      knowingly, voluntarily and intelligently entered. 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.”



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

(citation omitted).

      “A defendant wishing to challenge the voluntariness of a guilty plea on

direct appeal must either object during the plea colloquy or file a motion to

withdraw the plea within ten days of sentencing. Failure to employ either

measure results in waiver.” Commonwealth v. Lincoln, 72 A.3d 606, 609-

10 (Pa. Super. 2013) (citations omitted); see also Pa.R.Crim.P. 1007

(stating that any objections related to the validity of a plea agreement must

be raised in a post-sentence motion).

      Here, while Poland filed a timely Motion to Reconsider Sentence, he

failed to raise any issue regarding the guilty plea. Thus, the claim is waived.

See Lincoln, 72 A.3d at 611.2

      In his second claim, Poland contends that the trial court abused its

discretion in imposing an excessive sentence.        Anders Brief at 12-14.

Poland challenges the discretionary aspects of his sentence.


2
  We note that while Poland completed a written guilty plea colloquy, the
record does not contain a transcript of an oral guilty plea colloquy. See
Commonwealth v. Moser, 921 A.2d 526, 529 (Pa. Super. 2007) (stating
that “[n]othing precludes the use of a written colloquy that is read,
completed, and signed by the defendant, made part of the record, and
supplemented by some on-the-record oral examination.”) (citation
omitted,    emphasis    added);     see    also     Pa.R.Crim.P.  590,   cmt;
Commonwealth v. Mallory, 941 A.2d 686, 698 (Pa. 2008). This Court
contacted the trial court to request any transcripts or other documents that
might be missing from the record in search of any further on-the-record
content regarding the guilty plea. This Court was notified that there were no
other documents beyond the received record. Nevertheless, as noted above,
Poland failed to preserve his claim; accordingly, it is waived.


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            Prior to reaching the merits of a discretionary sentencing
      issue, an appellate court conducts a four-part analysis to
      determine: (1) whether appellant has filed a timely notice of
      appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was
      properly preserved at sentencing or in a motion to reconsider
      and modify sentence, see [Pa.R.Crim.P. 720]; (3) whether
      appellant’s brief has a fatal defect, see Pa.R.A.P. 2119(f); and
      (4) whether there is substantial question that the sentence
      appealed from is not appropriate under the Sentencing Code, 42
      Pa.C.S.A. § 9781(b).

Commonwealth v. Phillips, 946 A.2d 103, 112 (Pa. Super. 2008) (citation

omitted).

      Here, Poland filed a timely Notice of Appeal and raised his sentencing

claim in the Motion to Reconsider Sentence. Poland failed to include a Rule

2119(f) statement in his appellate brief. However, the Commonwealth did

not object to this defect.    See Commonwealth v. Shugars, 895 A.2d

1270, 1274 (Pa. Super. 2006) (stating that “[i]n the absence of any

objection from the Commonwealth, we are empowered to review claims that

otherwise fail to comply with Rule 2119(f)”). Even so, Poland’s bald claims

do not raise a substantial question.    See Commonwealth v. Titus, 816

A.2d 251, 255 (Pa. Super. 2003) (stating that a bald claim of excessiveness,

which does not raise a violation of the Sentencing Code or a norm underlying

the sentencing process does not raise a substantial question).

      Nevertheless, Anders requires that we examine the merits of Poland’s

claims to determine whether his appeal is, in fact, “wholly frivolous” in order

to rule upon counsel’s request to withdraw.         See Commonwealth v.

Wilson, 578 A.2d 523, 525 (Pa. Super. 1990) (stating that discretionary


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aspects of sentencing claims raised in an Anders brief must be addressed

on appeal, despite procedural violations); accord Commonwealth v.

Ziegler, 112 A.3d 656, 661 (Pa. Super. 2015).

      Our standard of review for challenges to the discretionary aspects of

sentencing is well settled:

      [s]entencing is vested in the discretion of the trial court, and will
      not be disturbed absent a manifest abuse of that discretion. An
      abuse of discretion involves a sentence which was manifestly
      unreasonable, or which resulted from partiality, prejudice, bias,
      or ill will. It is more than just an error in judgment.

Commonwealth v. Malovich, 903 A.2d 1247, 1252-53 (Pa. Super. 2006)

(citations omitted).

      At Poland’s sentencing hearing, the trial court stated that it had

reviewed and considered the pre-sentence investigation report.        See N.T.,

12/3/15, at 3-4, 5, 8; see also Commonwealth v. Downing, 990 A.2d

788, 794 (Pa. Super. 2010) (stating that “where the trial court is informed

by a pre-sentence report, it is presumed that the court is aware of all

appropriate sentencing factors and considerations, and that where the court

has been so informed, its discretion should not be disturbed”) (quotation

marks and citations omitted).     Additionally, the trial court considered the

Sentencing Guidelines, and the statements by Poland’s counsel.                N.T.,

12/3/15, at 5-8.       The trial court also considered Poland’s education,

character, numerous retail theft convictions, and remorse.       Id. at 4, 6, 7.




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Based on our review, we conclude that the trial court did not abuse its

discretion in imposing Poland’s sentence. See Malovich, 903 A.2d at 1254.

        Further, our independent examination of the record reveals no other

claims of arguable merit.     See Anders, 386 U.S. at 744-45. Accordingly,

we conclude that Poland’s appeal is wholly frivolous, and Attorney

Zimmerman is thus entitled to withdraw as counsel.

        Petition to Withdraw as Counsel granted; judgment of sentence

affirmed.

        Judge Mundy did not participate in the consideration or decision of this

case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/23/2016




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