J-S73003-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  :   IN THE SUPERIOR COURT OF
                                                  :        PENNSYLVANIA
                       Appellee                   :
                                                  :
                v.                                :
                                                  :
    JUSTIN FOWLER                                 :
                                                  :
                       Appellant                  :      No. 1840 WDA 2017

           Appeal from the Judgment of Sentence November 7, 2017
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0013292-2016


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.

MEMORANDUM BY GANTMAN, P.J.:                             FILED JANUARY 03, 2019

       Appellant, Justin Fowler, appeals from the judgment of sentence entered

in the Allegheny County Court of Common Pleas, following his negotiated

guilty plea to four counts of simple assault, two counts of terroristic threats,

and one count each of resisting arrest and criminal mischief.1 We affirm.

       The relevant facts and procedural history of this case are as follows. On

October 30, 2016, Appellant engaged in a drunken confrontation with his

mother and stepfather.         Appellant attacked his stepfather, punching him

multiple times. When Appellant’s mother attempted to intervene, Appellant

punched her in the face. Appellant also damaged his mother’s vehicle. When

police arrived on the scene, Appellant remained unruly and attempted to hit,

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1  18 Pa.C.S.A.       §§    2701(a)(1),        2706(a)(1),   5104,   and   3304(a)(5),
respectively.
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bite, kick, and spit on the officers. After a brief struggle, the officers placed

Appellant under arrest.

      On January 26, 2017, the Commonwealth charged Appellant with four

counts of simple assault, two counts each of aggravated assault of a police

officer and terroristic threats, and one count each of aggravated assault and

criminal mischief.   On November 7, 2017, Appellant entered a negotiated

guilty plea to four counts of simple assault, two counts of terroristic threats,

and one count each of resisting arrest and criminal mischief. In exchange,

the Commonwealth agreed to withdraw one aggravated assault count against

Appellant’s stepfather, to reduce the aggravated assaults against the police

officers to simple assaults, and with those amendments Appellant would plead

guilty to the amended information. There was also an explicit agreement on

the sentence for a total term of five years’ probation plus conditions and

restitution.

      On the same day, the court sentenced Appellant to the agreed-upon

aggregate term of five years’ probation plus conditions and restitution.

Appellant timely filed a post-sentence motion to withdraw his guilty plea on

November 13, 2017, which the court denied on November 16, 2017.               On

December 8, 2017, Appellant filed a timely notice of appeal. On January 29,

2018, the court ordered Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). In lieu of a concise

statement, counsel filed a Rule 1925(c)(4) statement on February 20, 2018,


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of her intent to file an Anders2 brief. On September 6, 2018, counsel filed an

application to withdraw and an Anders brief in this Court.

        As a preliminary matter, counsel seeks to withdraw her representation

pursuant to Anders, supra and Commonwealth v. Santiago, 602 Pa. 159,

978 A.2d 349 (2009). Anders and Santiago require counsel to: (1) petition

the Court for leave to withdraw, certifying that after a thorough review of the

record, counsel has concluded the issues to be raised are wholly frivolous; (2)

file a brief referring to anything in the record that might arguably support the

appeal; and (3) furnish a copy of the brief to the appellant and advise him of

his right to obtain new counsel or file a pro se brief to raise any additional

points the appellant deems worthy of review. Santiago, supra at 173-79,

978 A.2d at 358-61.          Substantial compliance with these requirements is

sufficient.   Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.

2007). After establishing that counsel has met the antecedent requirements

to withdraw, this Court makes an independent review of the record to confirm

that the appeal is wholly frivolous. Commonwealth v. Palm, 903 A.2d 1244,

1246 (Pa.Super. 2006). See also Commonwealth v. Dempster, 187 A.3d

266 (Pa.Super. 2018) (en banc).

        In Santiago, supra, our Supreme Court addressed the briefing

requirements where court-appointed appellate counsel seeks to withdraw



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2   Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

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representation:

         Neither Anders nor [Commonwealth v. McClendon, 495
         Pa. 467, 434 A.2d 1185 (1981)] requires that counsel’s brief
         provide an argument of any sort, let alone the type of
         argument that counsel develops in a merits brief. To repeat,
         what the brief must provide under Anders are references
         to anything in the record that might arguably support the
         appeal.

                                  *     *   *

         Under Anders, the right to counsel is vindicated by
         counsel’s examination and assessment of the record and
         counsel’s references to anything in the record that arguably
         supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

         [I]n 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.

Id. at 178-79, 978 A.2d at 361.

      Instantly, Appellant’s counsel has filed a petition to withdraw.      The

petition states counsel conducted a conscientious review of the record and

determined the appeal is wholly frivolous. Counsel also supplied Appellant

with a copy of the brief and a letter explaining Appellant’s right to retain new

counsel or to proceed pro se to raise any additional issues Appellant deems

worthy of this Court’s attention.     In the Anders brief, counsel provides a


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summary of the facts and procedural history of the case. Counsel’s argument

refers to relevant law that might arguably support Appellant’s issues. Counsel

further states the reasons for her conclusion that the appeal is wholly

frivolous.   Therefore, counsel has substantially complied with the technical

requirements of Anders and Santiago.

      Appellant has not responded to the Anders brief pro se or with newly

retained private counsel. Counsel raises the following issue on Appellant’s

behalf:

          DID THE TRIAL COURT ERR IN FAILING TO GRANT THE
          MOTION TO WITHDRAW THE GUILTY PLEA?

(Anders Brief at 4).

      Appellant contends the trial court should have granted his post-sentence

motion to withdraw his guilty plea because his plea was not knowingly,

intentionally, or voluntarily entered, due to his lack of food and sleep.

Appellant concludes he is entitled to some form of relief. We disagree.

      As a general rule, the entry of a guilty plea constitutes a waiver of all

defects and defenses except lack of jurisdiction, invalidity of the plea, and

legality of the sentence. Commonwealth v. Main, 6 A.3d 1026 (Pa.Super.

2010). “We have recognized the importance of the plea bargaining process

as a significant part of the criminal justice system.”      Commonwealth v.

Byrne, 833 A.2d 729, 735 (Pa.Super. 2003). Further,

          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

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         days of sentencing. Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i).
         Failure to employ either measure results in waiver.
         Commonwealth v. Tareila, 895 A.2d 1266, 1270 n.3
         (Pa.Super. 2006). Historically, Pennsylvania courts adhere
         to this waiver principle because “[i]t is for the court which
         accepted the plea to consider and correct, in the first
         instance, any error which may have been committed.”
         Commonwealth v. Roberts, [352 A.2d 140, 141
         (Pa.Super. 1975)] (holding that common and previously
         condoned mistake of attacking guilty plea on direct appeal
         without first filing petition to withdraw plea with trial court
         is procedural error resulting in waiver; stating, “(t)he swift
         and orderly administration of criminal justice requires that
         lower courts be given the opportunity to rectify their errors
         before they are considered on appeal”; “Strict adherence to
         this procedure could, indeed, preclude an otherwise costly,
         time consuming, and unnecessary appeal to this court”).

Commonwealth v. Lincoln, 72 A.3d 606, 609-10 (Pa.Super. 2013), appeal

denied, 624 Pa. 688, 87 A.3d 319 (2014) (holding defendant failed to preserve

challenge to validity of guilty plea where he did not object during plea colloquy

or file post-sentence motion to withdraw plea).

      “[A] defendant who attempts to withdraw a guilty plea after sentencing

must demonstrate prejudice on the order of manifest injustice before

withdrawal is justified.” Commonwealth v. Pantalion, 957 A.2d 1267, 1271

(Pa.Super. 2008). “A plea rises to the level of manifest injustice when it was

entered into involuntarily, unknowingly, or unintelligently.”      Id. (quoting

Commonwealth v. Muhammad, 794 A.2d 378, 383 (Pa.Super. 2002)). The

Pennsylvania Rules of Criminal Procedure mandate that pleas are taken in

open court and the court must conduct an on-the-record colloquy to ascertain

whether a defendant is aware of his rights and the consequences of his plea.


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Commonwealth v. Hodges, 789 A.2d 764 (Pa.Super. 2002). Specifically,

the court must affirmatively demonstrate a defendant understands: (1) the

nature of the charges to which he is pleading guilty; (2) the factual basis for

the plea; (3) his right to trial by jury; (4) the presumption of innocence; (5)

the permissible ranges of sentences and fines possible; and (6) that the judge

is not bound by the terms of the agreement unless he accepts the agreement.

Commonwealth v. Watson, 835 A.2d 786 (Pa.Super. 2003). This 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. Muhammad, supra. A guilty plea will be deemed valid if

an examination of the totality of the circumstances surrounding the plea shows

that the defendant had a full understanding of the nature and consequences

of his plea such that he knowingly and intelligently entered the plea of his own

accord. Commonwealth v. Rush, 909 A.2d 805 (Pa.Super. 2006).

      Pennsylvania law presumes a defendant who entered a guilty plea was

aware of what he was doing and bears the burden of proving otherwise.

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

who decides to plead guilty is bound by the statements he makes while under

oath, “and he may not later assert grounds for withdrawing the plea which

contradict the statements he made at his plea colloquy.” Id. at 523. “Our

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




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his decision to plead guilty, only that his decision be voluntary, knowing and

intelligent.” Id. at 524.

      Additionally, with respect to negotiated plea agreements:

         [W]here the guilty plea agreement between the
         Commonwealth and a defendant contains a negotiated
         sentence, …and where that negotiated sentence is accepted
         and imposed by the court, a defendant is not allowed to
         challenge the discretionary aspects of the sentence.
         Commonwealth v. Reichle, [589 A.2d 1140 (Pa.Super.
         1991)]. We stated, “If either party to a negotiated plea
         agreement believed the other side could, at any time
         following entry of sentence, approach the judge and have
         the    sentence     unilaterally altered,   neither   the
         Commonwealth nor any defendant would be willing to enter
         into such an agreement.” Id. at 1141.

         We find the reasoning of Reichle particularly pertinent in
         this case. Appellant entered a negotiated guilty plea and
         now seeks to avoid a specific term negotiated as part of that
         arrangement. If we allowed him now to avoid the term, it
         “would undermine the designs and goals of plea bargaining,”
         and “would make a sham of the negotiated plea process.”
         [Id.]

Byrne, supra (some internal citations and quotation marks omitted).

      Instantly, on November 7, 2017, Appellant executed a written guilty

plea colloquy fully communicating his decision to plead guilty. In the written

colloquy, Appellant acknowledged the voluntariness of his plea, the existence

of the plea agreement, and his responsibility for the charged crimes. Appellant

also recognized the rights he was relinquishing by pleading guilty, including

his right to a trial by judge or jury, his right to ensure the Commonwealth met

its burden of proof, and his limited appeal rights.

      On the same day, Appellant engaged in an oral guilty plea colloquy

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before the court. During the oral colloquy, Appellant affirmed his decision to

plead guilty and acknowledged his understanding of the plea agreement, his

sentence, and his appeal rights. Under the totality of these circumstances,

Appellant entered a knowing, voluntary, and intelligent guilty plea following

adequate written and oral colloquies.     See Rush, supra; Muhammad,

supra. Further, the court imposed an agreed-upon sentence of five years’

probation. Allowing Appellant to renege on the plea bargain at this juncture

would run afoul of the concept of negotiated plea agreements. See Byrne,

supra; Reichle, supra.     Therefore, the court properly denied Appellant’s

post-sentence motion to withdraw his guilty plea. Following our independent

review of the record, we conclude the appeal is wholly frivolous.        See

Dempster, supra; Palm, supra. Accordingly, we affirm the judgment of

sentence and grant counsel’s petition to withdraw.

      Judgment of sentence affirmed.      Counsel’s petition to withdraw is

granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/3/2019




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