J-S01023-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JUSTIN ALEXANDER MARTINEZ                  :
                                               :
                       Appellant               :   No. 1141 MDA 2018

          Appeal from the Judgment of Sentence Entered July 10, 2017
    In the Court of Common Pleas of York County Criminal Division at No(s):
                           CP-67-CR-0007871-2016


BEFORE: PANELLA, P.J., MURRAY, J., and PELLEGRINI*, J.

MEMORANDUM BY MURRAY, J.:                           FILED FEBRUARY 05, 2019

        Justin Alexander Martinez (Appellant) appeals from the judgment of

sentence imposed after he pled guilty to persons not to possess a firearm.1

Additionally, Appellant’s counsel, Christopher D. Moore, Esquire (Counsel),

seeks to withdraw from representation pursuant to Anders v. California, 386

U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa.

2009).     Upon review, we grant Counsel’s petition to withdraw and affirm

Appellant’s judgment of sentence.

        Appellant entered a negotiated guilty plea to persons not to possess a

firearm on July 10, 2017. That same day, the trial court sentenced Appellant

to 4½ to 9 years in a state correctional institution. No direct appeal was filed.

On February 5, 2018, Appellant filed a petition for post-conviction relief,

____________________________________________


1   18 Pa.C.S.A. § 6105(a)(1).


*Retired Senior Judge assigned to the Superior Court.
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seeking to have his post-sentence rights reinstated, which the court granted

on June 27, 2018. On July 3, 2018, Appellant filed a post-sentence motion to

withdraw his guilty plea. Following a hearing, the trial court denied Appellant’s

motion. This timely appeal followed. Both Appellant and the trial court have

complied with Pennsylvania Rule of Appellate Procedure 1925. On November

27, 2018, Counsel filed an Anders brief, in which he argues that Appellant’s

appeal is frivolous and requests permission from this Court to withdraw as

counsel.2

       At the outset, we note that 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.
____________________________________________


2 Counsel did not file a separate petition to withdraw, but rather set forth his
withdrawal request in his Anders brief. While this is satisfactory, we note our
preference that counsel file a separate petition to withdraw.               See
Commonwealth v. Fischetti, 669 A.2d 399, 400 (Pa. Super. 1995)
(“Although we believe the more desirable practice would be to submit a
separate withdrawal request to the court, we . . . treat counsel’s [request] in
the brief as such a request.”); see also Commonwealth v. Green, 513 A.2d
1008, 1010 (Pa. Super. 1986).

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      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).

      Additionally, there are requirements as to precisely what an Anders

brief must contain:

      [T]he 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 349, 361 (Pa. 2009).         When faced with a purported

Anders brief, we may 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 satisfied the above requirements, it is then this

Court’s duty to conduct its own review of the trial court’s proceedings to

determine whether there are any other non-frivolous issues that the appellant




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could raise on appeal. Commonwealth v. Dempster, 187 A.3d 266, 272

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

      Instantly, we conclude that Counsel has complied with the requirements

outlined above. Counsel has filed a petition with this Court stating that after

reviewing the record, he finds this appeal to be wholly frivolous.             In

conformance with Santiago, Counsel’s brief includes summaries of the facts

and procedural history of the case, and discusses the issues he believes might

arguably support Appellant’s appeal. See Anders Brief at 7-10. Counsel’s

brief sets forth his conclusion that the appeal is frivolous and includes citation

to relevant authority.   Id. Finally, Counsel has attached to his petition to

withdraw the letter that he sent to Appellant, which enclosed Counsel’s

petition and Anders brief. Counsel’s letter advised Appellant 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.

      Counsel’s Anders brief raises one issue for our review: “Whether the

[t]rial [c]ourt abused its discretion in denying Appellant’s [m]otion to

[w]ithdraw his [g]uilty [p]lea?”      Anders Brief at 4 (suggested answer

omitted).

      With regard to Appellant’s guilty plea, 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 guilty pleas:


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            [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 (Pa. Super. 2009) (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, [ ] 712 A.2d 749, 751 ([Pa.]1998)
      (citation omitted).

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

      Appellant argues that his guilty plea was not knowing, voluntary, and

intelligent. Specifically, Appellant contends that he did not commit the crime

to which he pled guilty and that “after his plea agreement he was reviewing

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discovery that he had not had or not realized he had before or that he had not

been provided or reviewed,” which “would have changed his decision to enter

into the plea agreement and taken the matter to trial. . . .” Motion to Withdraw

Plea, 7/3/18, at ¶ 4-5.

      Based on our review of the certified record, including Appellant’s written

colloquy and the transcript of his guilty plea, we conclude that Appellant’s

guilty plea was knowing, voluntary, and intelligent. The record reflects that

the trial court informed Appellant of the nature of the charges to which he

pled guilty, the factual basis for the plea, his right to trial by jury, the

presumption of innocence, the sentences, and that the court was accepting

the negotiated sentence. N.T., 7/10/17, at 2-8; Guilty Plea Colloquy, 7/10/17,

at 3-11.

      Importantly, during the oral colloquy, Appellant indicated that he was

not forced into pleading guilty, and that he was satisfied with counsel’s

representation.   N.T., 7/10/17, at 5, 7.     Appellant acknowledged that he

decided to exchange his rights, including the right to defend the charges

brought against him, for a favorable sentence of 4½ to 9 years of

incarceration, where, if convicted following a jury trial, Appellant would have

faced up to 12 years of incarceration. Id. at 4-5. Appellant stated that he

understood the ramifications of pleading guilty and that he was entering his

plea on his own volition. Id. at 5-6.




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        By asserting his innocence to the charges he pled guilty to, Appellant

implies that his responses to the plea colloquies were untruthful. A defendant

who elects to plead guilty “is bound by the statements he makes in open court

while under oath and he may not later assert grounds for withdrawing the plea

which     contradict   the   statements   he   made   at   his   plea   colloquy.”

Commonwealth v. Turetsky, 925 A.2d 876, 881 (Pa. Super. 2007)

(quotations and citations omitted). “A criminal defendant who elects to plead

guilty has a duty to answer questions truthfully.” Id. Because “[a] defendant

is bound by the statements which he makes during his plea colloquy[,]”

Commonwealth v. Orlando, 156 A.3d 1274, 1281 (Pa. Super. 2017),

Appellant cannot now propose that his guilty plea was not entered into

voluntarily, knowingly, or intelligently. For these reasons, we conclude that

the trial court did not err in denying Appellant’s motion to withdraw his guilty

plea.

        Finally, our independent review of the proceedings reveals no other non-

frivolous issues that Appellant could raise on appeal. See Dempster, 187

A.3d at 272.      Thus, we grant Counsel’s petition to withdraw and affirm

Appellant’s judgment of sentence.

        Petition to withdraw granted. Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/05/2019




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