J. S27018/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,                :     IN THE SUPERIOR COURT OF
                                             :          PENNSYLVANIA
                                             :
                                             :
                    v.                       :
                                             :
DERIK L. KRAUSE,                             :
                                             :
                            Appellant        :     No. 1455 MDA 2015

                  Appeal from the Order Entered July 22, 2015
                In the Court of Common Pleas of Lebanon County
                 Criminal Division No.: CP-38-CR-0001715-2014

BEFORE: SHOGAN, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.:                                 FILED JUNE 07, 2016

        Appellant, Derik L. Krause, appeals from the trial court’s Judgment of

Sentence entered on July 22, 2015, in the Court of Common Pleas of

Lebanon County.          Appellant’s counsel, Elizabeth Judd, Esquire (“Attorney

Judd”) has filed a Brief and Petition to Withdraw pursuant to Anders v.

California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009).          We affirm the Judgment of Sentence and grant

Attorney Judd’s Petition to Withdraw.

        On June 8, 2015, Appellant entered an open guilty plea to Burglary,

Criminal Trespass, Possession of an Instrument of Crime, Resisting Arrest,

Loitering and Prowling at Night Time, Criminal Mischief, and Driving Under


*
    Former Justice specially assigned to the Superior Court.
J.S27018/16


the Influence.1   The Commonwealth stated the following facts during the

guilty plea hearing, to which Appellant pleaded guilty:

           This incident occurred September 29th, 2014,               at
      [Hobbeze], Incorporated, in North Lebanon Township.

                                    ***

            What had occurred is that he used a crowbar to get into
      the address of 1604 East Cumberland Street. It was a back door
      to the business. He was able to open the door, but did not enter
      that facility.

            He then was found heavily intoxicated -- by his vehicle --
      when the police arrived. There was a slight struggle when he
      refused to cooperate and get out of his vehicle at that point.

           Of course, the Loitering and Prowling deals with him being
      around the business.

             There is some testimony that he was sort of trying to enter
      different windows and doors. So he used a crowbar on a back
      door.

            As far as Resisting Arrest, they had to struggle to try to
      get him out of the car.

N.T. Guilty Plea Hearing, 6/8/15, at 6-7.

      On July 22, 2015, the trial court sentenced Appellant to an aggregate

term of 9 months to 2 years less one day of incarceration.

      Appellant filed a timely Notice of Appeal. Both Appellant and the trial

court complied with Pa.R.A.P. 1925.     On January 8, 2016, Attorney Judd

filed an Anders Brief and a Petition to Withdraw as counsel.

1
 18 Pa.C.S. § 3502(a)(3); 18 Pa.C.S. § 3503(a)(1)(ii); 18 Pa.C.S. § 907(a);
18 Pa.C.S. § 5104; 18 Pa.C.S. § 5506; 18 Pa.C.S. § 3304(a)(5); and 75
Pa.C.S. § 3802(e), respectively.


                                     -2-
J.S27018/16


      As a preliminary matter, we address Attorney Judd’s Petition to

Withdraw. Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005)

(“When faced with a purported Anders brief, this Court may not review the

merits of the underlying issues without first passing on the request to

withdraw.” (quotation and citation omitted)).

      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). By contrast, if counsel’s petition and
      brief satisfy Anders, we will then undertake our own review of
      the appeal to determine if it is wholly frivolous. If the appeal is
      frivolous, we will grant the withdrawal petition and affirm the
      judgment of sentence.        However, if there are non-frivolous
      issues, we will deny the petition and remand for the filing of an
      advocate’s brief.

Commonwealth v. Wrecks, 931 A.2d 717, 720–21 (Pa. Super. 2007)

(citations omitted).   Our Supreme Court has expounded further upon the

requirements of Anders:

      [I]n the Anders brief that accompanies court-appointed
      counsel’s petition to withdraw, counsel must: (1) provide a


                                     -3-
J.S27018/16


      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.

Commonwealth v. Santiago, supra at 361.

      We note that Attorney Judd has complied with all of the requirements

of Anders as articulated in Santiago. Additionally, Attorney Judd confirms

that she sent Appellant a copy of the Anders Brief, as well as a letter

explaining to Appellant that he has the right to proceed pro se or the right to

retain new counsel. See Commonwealth v. Daniels, 999 A.2d 590, 594

(Pa. Super. 2010) (describing notice requirements).            Attorney Judd

appended a copy of the letter to the Anders Brief as Exhibit F.

      Once “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.’” Commonwealth v. Flowers, 113 A.3d

1246, 1248 (Pa. Super. 2015) (quoting Santiago, supra at 355 n. 5).

      We now proceed to examine the issues counsel set forth in the Anders

Brief.2 Appellant first contends that the trial court “erred when it would not

permit [Appellant] to withdraw his guilty plea” after sentencing because his


2
  Appellant has not filed a response to Attorney Judd’s Anders Brief and
Petition to Withdraw.


                                     -4-
J.S27018/16


guilty plea was not knowing, intelligent, and voluntary.     Second, Appellant

argues that the trial court “erred when it ruled claims of ineffectiveness []

are not permitted on direct appeal[.]” Anders Brief at 4.

      The Honorable Charles T. Jones, Jr., sitting as the trial court, has

authored a comprehensive and well-reasoned Opinion, citing to the record

and relevant case law in addressing Appellant’s two claims on appeal. After

a careful review of the parties’ arguments and the record, we affirm on the

basis of the trial court’s Opinion and conclude that Appellant’s appeal is

wholly frivolous.     See Trial Court Opinion, filed 10/12/15, at 5-10

(concluding: (1) Appellant knowingly, intelligently, and voluntarily entered

his guilty plea as demonstrated by the written and oral guilty plea colloquy

and the transcripts of his guilty plea hearing and sentencing; Appellant’s

time credit claims did not constitute “manifest injustice” warranting post-

sentencing withdrawal of his guilty plea; and (2) Appellant may not raise his

premature ineffectiveness claims on direct review; he must wait until

collateral review).

      Having determined that the arguments addressed in the Anders Brief

are frivolous, it remains for this Court to conduct an independent

examination of the record to determine whether counsel could have raised

any non-frivolous arguments. Santiago, supra at 355 n.5.

      The record reflects that the trial court thoroughly examined Appellant

regarding his waiver of his right to trial by jury, his decision to plead guilty,



                                      -5-
J.S27018/16


and his agreement with the facts recited by the prosecutor. N.T. Guilty Plea

Hearing, 6/8/15, at 3-12.

       In addition, the sentencing transcript reveals that Appellant’s sentence

is legal and that his sentences fall within the standard guideline ranges.

N.T. Sentencing, 8/25/09, at 3, 7-11.       The trial court noted that it had

reviewed a pre-sentence investigation report, that it knew Appellant’s age,

education, and some facts about his background, and that Appellant had

committed the current offenses while on parole in another matter. Id. at 2,

4-7.   We do not discern any non-frivolous argument that could be raised

with regard to the sentencing proceeding.

       In summary, our independent review of the record confirms counsel’s

assertion that Appellant cannot raise any non-frivolous issues in this appeal.

Thus, we grant Attorney Judd’s Petition to Withdraw as counsel, and affirm

Appellant’s Judgment of Sentence.

       The parties are instructed to attach a copy of the trial court’s Opinion

to all future filings.

       Judgment of Sentence affirmed.       Petition to Withdraw as counsel

granted. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/7/2016

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                                                                                                       r J.._i:J
                                                                                      CLERK OF COURTS
                               IN THE COURT OF COMMON PLEAS                             LEBANON, PA
                         OF LEBANON COUNTY, PENNSYLV ANIAzGJS
                                                                                       0.LT 12 Prt l 21
                                                                                         1


                                          CRil\1INAL DIVISION

COMMONWEALTH OF
PENNSYLVANIA

      v.

DERIKKRAUSE,
Defendant


                                                    ORDER

AND NOW, this 12th day of Octoberber, 2015, after careful consideration of the record,
this Court enters the following Opinion to assist the Superior Court in determining
Defendant's Direct Appeal.
The Clerk of Courts of Lebanon County is hereby directed to transmit the record of this
case, together with this Order and Opinion, to the Superior Court of Pennsylvania for its
review, pursuant to the requirements of Pa.R.A.P. 1931.


                                BY THE COURT:




Cc:   District Attorney's Office (Becker) -;;;tL
      Elizabeth Judd, Esquirc-v-,
      Defendant - LCCF ·.iv
      Amanda C. Pipenberg, Law Clerk )"\...,,


           "'   PURSUANT TO Pa.RCrlm._P.114
                  All parties arr~ersb;2 notifi;9
                  1h!s date:    .D ' L   VS · }L__
                   c:.:irk of Courts, Lebanon, PA
                           ·-
                                                                          ENTERED & Fl:._.-:;:;
                                                                          CLERK OF COU -
                       IN THE COURT OF COMl\'lON PLEAS                      LEBMrnN.    p:rs
                     OF LEBANON COUNTY, PENNSYL VANL\lS O 1
                                                                     lu     CT 12 Pl11 l 21
                                 CRIMINAL DIVISION


COMMONWEAL TH OF
PENNSYLVANIA

      v.                                                   CP-38-CR~t 715-2014

DERIK KRAUSE,
Defendant




APPEARANCES:

David J. Arnold, Jr., Esquire                              For Commonwealth
District Attorney's Office

Elizabeth Judd, Esquire                                    For Defendant
Public Defender's Office




OPINION BY JONES, J.~
      Defendant has filed a Notice of Appeal to the Superior Court. Defendant did not file
Post-Sentence Motions in this matter. This Court did not have the opportunity to rule on
the issues presented by Defendant in his Concise Statement. The following Opinion
contains the findings of this Court on the issues raised by Defendant in his Direct Appeal.




                                             2
                          ···~~-·~~-~---------




   I.       FACTUAL HISTORY
         On or about September 29, 2014, Defendant entered Hobbeze, Inc. (herein the
Victim) located at 1604 East Cumberland Street, North Lebanon Township, Lebanon
County, Pennsylvania without permission with the intent to commit a crime therein.
Defendant used a crowbar to enter the premises. Defendant was also seen to be loitering
or prowling around the premises around the time of the Burglary. Defendant was dressed
in all black including a hooded sweatshirt with the hood up during this time.
         When law enforcement officers arrived, Defendant was hiding in his vehicle.
Defendant was laying in the back seat of the vehicle and the keys were in the ignition.
Defendant refused to exit the vehicle when he was asked to do so by police. Defendant
also refused to show his hands to police and police had to pry his hands from under his
person in order to place Defendant in handcuffs. While placing Defendant in handcuffs,
police noticed that Defendant's eyes were bloodshot and glassy, there was a strong odor of
alcohol on Defendant, and Defendant claimed that he did not understand what was going
on. A crowbar was found in the vehicle which was consistent with the damage done to the
premises of the Victim.


   II.      PROCEDURAL HISTORY
         Defendant was charged with the following on November 13, 2014:
         1. Burglary (Fl) under 18 Pa.C.S.A. § 3502(a)(3);
         2. Criminal Trespass (F2) under 18 Pa.C.S.A. § 3503 (a)(l)(ii);
         3. Possession of an Instrument of Crime (Ml) under 18 Pa.C.S.A. § 907(a);
         4. Resisting Arrest (M2) under 18 Pa.C.S.A § 5104;
         5. Loitering and Prowling at Night Time (M3) under 18 Pa.C.S.A. § 5506;
         6. Criminal Mischief (M3) under 18 Pa.C.S.A. § 3304(a)(5); and
         7. Driving Under the Influence of Alcohol (M) under 75 Pa.C.S.A. § 3802(e).


                                              3
                                                              ....._


Defendant entered a plea of guilty to all of the above charges on June 8, 2015. Defendant
was sentenced on July 22, 2015 to the following:
      Count 1: to pay the costs of prosecution, a fine of two hundred dollars ($200.00),
      and make restitution to Charles Polkinghorn in the amount of two thousand five
      hundred dollars ($2,500.00) and to Selective Insurance Company of America in the
      amount of one thousand three hundred seventy dollars ($1,370.00) and a term of
      imprisonment in the Lebanon County Correctional Facility (herein LCCF) for an
      indeterminate   period the minimum of which shall be nine (9) months and the
      maximum of which shall be two (2) years, less one (1) day;
      Count 2: merged with Count l;
      Count 3: to pay the costs of prosecution, a fine of two hundred dollars ($200.00),
      and a term of imprisonment in LCCF for an indeterminate period the minimum of
      which shall be three (3) months and the maximum of which shall be two (2) years
      less one (1) day to be served concurrently with Count I;
      Count 4: to pay the costs of prosecution, a fine of two hundred dollars ($200.00),
      and to be placed on probation for a period of two (2) years less one ( l ) day to be
      served concurrently with Counts I and 3;
      Count 5: to pay the costs of prosecution, a fine of two hundred dollars ($200.00),
      and to be placed on probation for a period of one (1) year to be served concurrently
      to Counts 1, 3, and 4;
      Count 6: to pay the costs of prosecution, a fine of two hundred dollars ($200.00),
      and to be placed on probation for a term of one (1) year to be served concurrently
      with Counts 1, 3, 4, and 5;
      Count 7: to pay the costs of prosecution, a fine of five hundred dollars ($500.00),
      and to be imprisoned at LCCF for an indeterminate period, the minimum of which
      shall be forty-eight (48) hours and the maximum of which shall be six (6) months to
     be served concurrently with Counts 1, 3, 4, 5, and 6.
                                            4




                                                      --··"···--
                            ·----
                                                                 ·----

       Defendant did not file Post-Sentence        Motions with this Court after sentencing.
Defendant did file a timely Notice of Direct Appeal to the Superior Court on August 21,
2015. This Court issued a Concise Statement Order on August 24, 2015. Defendant filed
a Concise Statement on September 14, 2015.


   III.   DISCUSSION
       Defendant's   Concise Statement raises two (2) issues. First, Defendant alleges that
his guilty plea was not knowing, intelligent, or voluntary. Second, Defendant alleges that
his attorney was ineffective in representing him.
      A. Plea
       The Rules of Criminal Procedure allow "at any time before the imposition              of
sentence, the court may, in its discretion, permit, upon motion of the defendant, or direct,
sua sponte, the withdrawal of a plea of guilty or nolo contendere and the substitution of a
plea of not guilty." Pa.R.Crim.P.591(a). "The standard for withdrawal of a guilty plea
after imposition of sentence is much higher; a 'showing of prejudice on the order of
manifest injustice is required before withdrawal is properly justified."' Muhammed, 794
A.2d 378, 383 (Pa.Super. 2002) (citing Commonwealth v. Carpenter,555 Pa. 434, 454
(1999); Commonwealthv. Shaffer, 498 Pa. 342, 346 (1982)). "A plea rises to the level
of manifest injustice when it is entered into involuntarily, unknowingly, or unintelligently."
Commonwealth v. Stork, 737 A.2d 789, 790 (Pa.Super. 1999) (citing Commonwealthv.
Kephart, 406 Pa.Super 321 (1991)).


      Once a defendant has entered a plea of guilty, it is presumed that he was aware
      of what he was doing, and the burden of proving involuntariness is upon him.
      Therefore) where the record clearly demonstrates that a guilty plea colloquy
      was conducted, during which it became evident that the defendant understood
      the nature of the charges against him, the voluntariness of the plea is
      established. A defendant is bound by the statements he makes during his plea


                                               5
•,   ••·••••,•s0o0o•oL•                         _

                                                                                                        ---·-·       .. -   .. __
                                                                                                                            _       .




                                 colloquy, and may not assert grounds for withdrawing the plea that contradict
                                 statements he made when he pled.

                          Commonwealth v. Stork, 737 A.2d 789, 790-91 (Pa.Super. 1999) (internal citations
                          omitted).
                                 A showing of manifest injustice is required after imposition of sentence since,
                                 at this the stage of the proceeding permitting the liberal standard enunciated
                                 in Forbes might encourage entrance of a plea as a 'sentencing testing device.'
                                 We note that disappointment by a defendant in the sentence actually imposed
                                 does not represent manifest injustice.
                          Muhammed, 794 A.2d at 383 (internal citations omitted).
                                 A court "must examine the guilty plea colloquy." Id. at 383.
                                 The colloquy must inquire into the following areas: 1) the nature of the
                                 charges; 2) the factual basis of the plea; 3) the right to trial by jury; 4) the
                                 presumption of innocence; 5) the permissible range of sentences; and 6) the
                                judge's authority to depart from any recommended sentence. This Court
                                evaluates the adequacy of the guilty plea colloquy and the voluntariness of the
                                 resulting plea by examining the totality of the circumstances surrounding the
                                 entry of that plea.

                          Id. at 3 83-84 (internal citations omitted).
                                Here, Defendant personally filed out a written guilty plea colloquy prior to entering
                          his plea before this Court. Defendant checked "yes," that he did understand the nature of
                          the charges against him; that his lawyer had explained to him all of the elements of each
                          charge; that he read a copy of the Criminal Information; that he committed the crimes to
                          which he was pleading guilty; that the decision to enter a guilty plea was his alone and that
                          he could not be forced to enter a guilty plea; and that his plea was being given freely and
                          voluntarily, without any force, threats, pressure) or intimidation.       Defendant checked the
                          answers himself,   initialed each   page, and signed the last page   of the written    colloquy.
                                This Court went through an oral colloquy as required by law. See Commonwealth
                          v. Persinger, 532 Pa. 317 (1992); Commonwealth v. Kulp, 476 Pa. 358 (1978);
                          Commonwealth v. Mendoza, 730 A.2d 503 (Pa.Super. 1999). Defendant's plea of guilty

                                                                           6
                          -._,__




would not have been accepted and entered as knowing, intelligent, and voluntary if this
Court was not satisfied that it was such. At a Hearing on Defendant's    Direct Appeal held
on September 22, 2015, this Court read to Defendant portions of the transcript for the
Guilty Plea. Defendant acknowledged during his guilty plea colloquy with the Court that
he understood what he was pleading guilty to and that he was entering an open plea. See
Guilty Plea Transcript; See Direct Appeal Hearing Transcript.           Defendant requested
that this Court give him a local sentence so that he could do work release. See Sentencing
Transcript.
       At the Hearing on Direct Appeal, Defendant's main contention was that he was
entitled to time credit on this docket number. This Court reviewed Defendant's sentence
and explained that Defendant was given credit for five (5) days which he was entitled in
this case. Defendant was incarcerated on other days for parole violations on another action
number around the same time he was incarcerated on these charges. The Court explained
to Defendant at Sentencing and the Hearing on Direct Appeal that Defendant was not
entitled to credit for those days on this action number as it would be double credit because
he was given credit for them on the other action number. The following exchange occurred
at sentencing:
       JUDD: ... He has been incarcerated for a period of time on this from
       September 30th to October 5th and then he was re-incarcerated on April 17th
       and is still in there today.
       COURT: When he was re-incarcerated on April              17th, he had been
       incarcerated on his second parole violation, right?
       JUDD: Yes, and we had -
       COURT: Just had bail revoked?
      JUDD: Yes, we did.
      COURT: I'm sure you went and talked to him about couldn't get double
      credit, not entitled to double credit, that kind of stuff.
      JUDD: I certainly did, Your Honor.

Sentencing Transcript, July 22, 2015,   pp 2-3.


                                             7
                          ---------------·                                    ······--·


                                                               ·1........-.




      DEFENDANT: So I'm only credited for the time from September 30th until
      October 5th, that's it?
      COURT: Yes. Do you know why?
      DEFENDANT: Why?
      COURT: Because you were on a parole violation. Okay. When I told you or
      whoever told you to follow the rules of parole and you decided not to follow
      the rules of parole and you get yourself incarcerated, I don't believe you
      deserve double credit for this offense and that offense.

Sentencing Transcript, July 22, 2015, p 11.
At the Hearing on Direct Appeal, the following exchange occurred:
      COURT: Nowhere in [the Guilty Plea Transcript] does anybody say anything
      about this time being credited. By that, I mean the time between April 17th
      and July 22nd, any of that time where bail was increased being credited both
      for the parole violation and for the new charge. But I guess to go to back to
      Attorney Becker's question, that is your real problem here. You did not get
      credit for that time both for your parole violation and for the new sentence; is
      that correct, Mr. Krause?
      DEFENDANT: Kind of, Your Honor. That time there she told me there's a
      chance that that wouldn't count, but the original time when I got the charge
      on September 29th, that that time would count until I bailed out because that
      was-
      COURT: But you did get that credit for that.
      DEFENDANT: I got five days credit. I was under the impression that at least
      the whole two months would count.
      COURT: Well, you just told me that she told you that you might not get credit
      for that time.
      DEFENDANT: I was talking about from April 17th to when I got sentenced.
      COURT: Right. And you didn't get credit for that time. The only time that
      you were in jail on this new charge was September 30th until October 5th.
      That's when you went to jail initially. I guess they picked you up on the 29th
      and actually got you into booking and had bail set by a judge on September
      30th. So from September 30th until October 5th I gave you credit for that
      time. And then I started the new sentence against the day I sentenced you,
      which was eight days before you were paroled on your other action number
     where you were serving the parole violation time, 226 of 2013.
             So that's basically your main problem here, that whenever bail was re-
     set on this action number, 1715. You wanted the time from April 17th when
     your bail was increased until July 22nd to count, but as I mentioned, you were

                                             8
                                         ..................                     _
                                                                  ...........



       already in jail on a parole violation. So you did get credit for that time period
       it just went to your parole violation on Action Number 226 of 2013. And
       when I started with sentencing, Attomey Judd said she did talk to you about
       the fact that you're not entitled to double credit, and you didn't ever jump up
       and down and say, hey, wait a minute. I was promised 1 would get credit for
       this.
Direct Appeal Hearing, September 22, 2015, pp 20-25.
       Essentially, Defendant argued that he should have been given credit on the sentence
in this case for time he spent in jail on parole violations on another action number. This
Court explained to Defendant at the Hearing that he was not entitled to credit for that time
on this action number because he had received credit for that time on the other action
number and was not entitled to double credit. Defendant stated at the Hearing that he
regretted entering a plea and now believed that maybe he should have gone to trial. See
Direct Appeal Hearing Transcript, September 22, 2015, p 26. Defendant's regret is not
sufficient to show manifest injustice. Defendant is not permitted to withdraw his plea after
sentencing simply because he has regrets and wants time credit for days spent incarcerated
on another matter.


      B. Ineffective Assistance of Counsel
      Pennsylvania Courts have consistently held that: "as a general rule, a petitioner
should wait to raise claims of ineffective assistance of trial counsel until collateral review."
Commonwealth v, Grant, 572 Pa. 48, 67 (2002). Defendant is still represented by plea
counsel in this matter. This Court finds that Defendant has raised the issue of ineffective
assistance of counsel prematurely.




                                                              9
   IV.   CONCLUSION
      For the reasons set forth above, this Court would deny Defendant's Direct Appeal.
An Order will be entered consistent with the foregoing.




                                           10
