J-S51020-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ANTHONY ANUSHIEM

                            Appellant                No. 3060 EDA 2014


            Appeal from the Judgment of Sentence August 27, 2014
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0002832-2014


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                       FILED DECEMBER 07, 2015

        Anthony Anushiem appeals from the judgment of sentence entered in

the Court of Common Pleas of Delaware County, following his negotiated

guilty plea to simple assault1 and possession of an instrument of crime.2

Anushiem’s appellate counsel seeks to withdraw from representation

pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967),

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




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 2701(a)(3).
2
    18 Pa.C.S.A. § 907(a).
J-S51020-15



review, we affirm Anushiem’s judgment of sentence and grant counsel’s

petition to withdraw.3

       The trial court summarized the relevant procedural facts and history of

this case as follows:

       On August 27, 2014, Anthony Anushiem (hereinafter referred to
       as “Appellant”) entered into a negotiated guilty plea, and was
       sentenced by the undersigned in the above-captioned matter as
       follows: Count 1, Simple Assault, “time served to 23 months,
       time served being the period of 4/25/14 to 8/27/14. You are to
       stay away from the victim. That is no contact with the victim or
       any residence that she is living at. Forfeit the key and cell
       phone and payment of court costs. On Count 4, Possession
       Instrument of Crime . . . one year probation. That sentence is
       concurrent to Count 1.” . . . On September 4, 2014, the
       Appellant filed a “Post-Sentence Motion to Withdraw Guilty Plea.”
       A Hearing was held on the Motion, and on September 29, 2014,
       an Order was entered denying Appellant’s “Motion to Withdraw
       Guilty Plea.” On October 27, 2014, Appellant filed a timely
       Notice of Appeal.       The Court directed Appellant to file a
       statement of matters complained of on appeal. In response, on
       November 18, 2014, counsel for Appellant filed a statement of
       intent to file an Anders brief with the Superior Court pursuant to
       Pa.R.A.P. 1925(c)(4). Counsel’s statement of intent eliminates
       this Court’s duty to file an opinion under Pa.R.A.P. 1925(a),
       since this Court plays no role in evaluating the Anders brief.
       Commonwealth v. McBride, 957 A.2d 752, 758 (Pa. Super.
____________________________________________


3
  On August 24, 2015, Anushiem filed a pro se motion to assert additional
matters on appeal. He attached to that motion a petition for post conviction
collateral relief, raising claims of ineffectiveness of counsel as well as other
claims for which Anushiem may be entitled to relief under the Post
Conviction Relief Act. 42 Pa.C.S.A. §§ 9541-9546. We deny this motion
without prejudice to Anushiem’s right to raise these issues on collateral
review. See Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002),
reargument denied, clarified 821 A.2d 1246 (Pa. 2003) (“We now hold that,
as a general rule, a petitioner should wait to raise claims of ineffective
assistance of trial counsel until collateral review.”).



                                           -2-
J-S51020-15


      2008) (“If counsel files a statement of intent to file an Anders
      brief pursuant to Rule 19259(c)(4), a trial court opinion is not
      necessary and the trial court record shall be certified and
      transmitted . . . to this court.”).

Trial Court Opinion, 12/1/2014.

      Counsel has filed a petition to withdraw and brief pursuant to Anders

and Santiago. There are particular mandates that counsel seeking to

withdraw pursuant to Anders must follow. These mandates 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). We have 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 pro se or raise any additional points
      worthy of this Court’s attention.

      If counsel does not fulfill the aforesaid technical requirements of
      Anders, this Court will deny the petition to withdraw and
      remand the case with appropriate instructions (e.g., directing
      counsel either to comply with Anders or file an advocate’s brief
      on Appellant’s behalf).

Id. (citations omitted).

      Further, the Anders brief that accompanies counsel’s petition to

withdraw must:


                                     -3-
J-S51020-15


          (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. When faced with a purported Anders brief, we

do not review the merits of the underlying issues without first deciding

whether    counsel   has    properly   requested    permission    to   withdraw.

Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa. Super. 2008)

(citation omitted). If counsel has met these obligations, “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 354 n.5.

      Here, counsel has complied with the requirements outlined above.

Counsel has filed a petition with this Court stating that after a thorough

review of the case, counsel “had found a complete lack of issues that might

be raised on appeal and . . . believes this appeal to be wholly frivolous.”

Petition to Withdraw as Counsel, 2/19/15, ¶ 2-3. Counsel has filed a brief

setting forth one issue that might arguably support an appeal, see Anders

Brief, at 3-4, and sets forth his conclusion that the appeal is frivolous, citing

to the relevant portions of the record. See id. at 4-5.     Finally, counsel has

attached to his petition the letter that he sent to Anushiem, which enclosed


                                       -4-
J-S51020-15



counsel’s petition and Anders brief and advised Anushiem of his right to

proceed pro se or with private counsel and to raise any additional issues that

he deems worthy of this Court’s consideration. Petition to Withdraw as

Counsel, 2/19/15, Appendix A.

      Counsel raises the following issue: whether Anushiem’s claim that

counsel was not prepared to represent him at trial and his apprehensions

about his attorney should have been addressed during the guilty plea

colloquy?

      Counsel states the issue is frivolous since Anushiem’s allegations of

counsel’s unpreparedness were vague at best. Trial counsel stated that he

was, in fact, ready to represent Anushiem at trial. See N.T. Jury Selection,

8/26/14, at 99-100. Despite Anushiem’s statement that he did not think his

attorney was ready to represent him at trial, when faced with the court’s

refusal to delay the trial any further, Anushiem entered his plea. Tellingly,

he raised no “concerns” about his counsel during the guilty plea colloquy.

See   Guilty    Plea   Hearing,   8/27/14,   at   3-16.   Additionally,   Anushiem

acknowledged that counsel reviewed the six-page plea statement with him,

line by line.     Finally, the plea agreement was reached after “lengthy

negotiations.” Id. at 3, 13.

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

sentencing must demonstrate prejudice on the order of manifest injustice

before withdrawal is justified. A plea rises to the level of manifest injustice

when it was entered into involuntarily, unknowingly, or unintelligently.”

                                       -5-
J-S51020-15



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

See also Pa.R.Crim.P. 590(A)(3).

      Here, Anushiem entered a negotiated guilty plea.     He pled guilty to

simple assault and PIC in exchange for the prosecutor’s agreement to

recommend a sentence        of time    served (124   days) to   23   months’

imprisonment for simple assault and a concurrent term of one year

probation for PIC.

      Prior to accepting a defendant’s guilty plea, the trial court must

determine that defendant’s guilty plea is voluntarily and understandingly

tendered. Pa.R.Crim.P. 590(a)(3). Here, the court accepted that plea after

a full colloquy, and imposed the recommended sentence. N.T. Guilty Plea

Colloquy, 8/27/14, at 6-11. The record makes clear Anushiem understood

the terms of the plea agreement and voluntarily and intelligently entered

into it.   Anushiem also signed and initialed each paragraph of a six-page

written guilty plea statement, which, as noted above, his counsel reviewed

with him.     See Guilty Plea Statement, 9/5/14.     From our review of the

record, it appears that Anushiem’s concerns regarding his attorney’s

readiness for trial was more a function of his attempt to delay the trial. We

find no manifest injustice. Muhammad, supra.

      Accordingly, we affirm the judgment of sentence and grant counsel’s

petition to withdraw.

      Judgment of sentence affirmed. Motion to withdraw granted.




                                      -6-
J-S51020-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/7/2015




                          -7-
