J-S20034-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    QUINCY MICHAEL PATRICK                     :
                                               :
                       Appellant               :      No. 1725 MDA 2017

            Appeal from the Judgment of Sentence August 21, 2017
               In the Court of Common Pleas of Luzerne County
             Criminal Division at No(s): CP-40-CR-0000765-2016


BEFORE: GANTMAN, P.J., OTT, J., and KUNSELMAN, J.

MEMORANDUM BY GANTMAN, P.J.:                             FILED JUNE 15, 2018

        Appellant, Quincy Michael Patrick, appeals from the judgment of

sentence entered in the Luzerne County Court of Common Pleas, following his

open guilty plea to possession with intent to deliver (“PWID”).1 We affirm.

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

           After [a hearing] and a colloquy of [Appellant] to ascertain
           the voluntariness of his plea, [the court] accepted his plea
           to count one of the Information, PWID, on June 29, 2017.
           A presentence investigation (“PSI”) was ordered to be
           completed by the Luzerne County Adult Probation and
           Parole Department prior to sentencing.

           [Appellant] was sentenced following [a hearing] on August
           21, 2017. At said hearing, upon review of the PSI and the
           presentations of counsel, [the court] determined that a
           standard range sentence was appropriate. [The court] then
____________________________________________


1   35 P.S. § 780-113(a)(30).
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          sentenced [Appellant] to a minimum of nineteen (19)
          [months’] to a maximum of forty (40) [months’]
          incarceration to be served in a state correctional
          institution.[2] [Appellant] was given credit for serving four
          hundred and twenty-two (422) days of incarceration prior
          to sentencing.

          On August 29, 2017, [Appellant] filed Post Sentence Motions
          which were denied by Order of Court on October 10, 2017.
          [Appellant] filed a timely Notice of Appeal on November 6,
          2017.   Thereafter, on November 8, 2017, [the court]
          ordered [Appellant] to file a Concise Statement of Errors
          Complained of on Appeal pursuant to Pa.R.A.P. 1925(b) and
          requested the Commonwealth respond thereto.

          [Appellant’s] Concise Statement of [Errors] Complained of
          on Appeal pursuant to Pa.R.A.P. 1925(b)[3] was filed and
          received by the [c]ourt on November 21, 2017. In said
          document, [Attorney Amanda Young] indicated that there
          are no non-frivolous issues which can be raised on appeal
          and further indicated her intent to file an Anders Brief with
          [this Court].

(Trial Court Opinion, filed December 14, 2017, at 1-2) (internal citations and

footnotes omitted). On November 27, 2017, Attorney John Sobota entered

his appearance on behalf of Appellant and Attorney Young withdrew her

representation.      On February 2, 2018, Attorney Robert Buttner replaced

Attorney Sobota as appellate counsel and filed an Anders brief and an



____________________________________________


2 With an offense gravity score (“OGS”) of six (6) and a prior record score
(“PRS”) of four (4), the standard minimum sentence range for Appellant’s
PWID conviction was fifteen (15) to twenty-one (21) months’ imprisonment.
204 Pa.Code § 303.16(a).

3 Counsel called this document a Rule 1925(b) statement, but the substance
of the document demonstrates counsel filed a statement of intent to file an
Anders brief pursuant to Pa.R.A.P. 1925(c)(4).

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application to withdraw as counsel in this Court.     Appellant filed pro se a

supplemental brief in response to counsel’s Anders Brief.

      As a preliminary matter, appellate counsel seeks to withdraw his

representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.

1396, 18 L.Ed.2d 493 (1967) 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 the antecedent requirements have been met,

this Court must then make an independent evaluation of the record to

determine whether the appeal is, in fact, wholly frivolous.” Commonwealth

v. Palm, 903 A.2d 1244, 1246 (Pa.Super. 2006) (quoting Commonwealth

v. Townsend,       693   A.2d 980, 982      (Pa.Super. 1997)).       See also

Commonwealth v. Dempster, 2018 PA Super 121 (filed May 8, 2018) (en

banc).

      In Santiago, supra, our Supreme Court addressed the briefing


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requirements, where court-appointed appellate counsel seeks to withdraw

representation:

          Neither Anders nor McClendon[4] 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, appellate counsel filed a petition for leave to withdraw. The

petition states counsel performed a conscientious review of the record and

concluded the appeal is wholly frivolous. Counsel also supplied Appellant with

a copy of the withdrawal petition, the brief, and a letter explaining Appellant’s


____________________________________________


4   Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).

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right to proceed pro se or with new privately-retained counsel to raise any

additional points Appellant deems worthy of this Court’s attention.            In his

Anders brief, counsel provides a summary of the facts and procedural history

of the case. Counsel refers to facts in the record that might arguably support

the issues raised on appeal and offers citations to relevant law. The brief also

provides counsel’s reasons for concluding that the appeal is frivolous. Thus,

counsel has substantially complied with the requirements of Anders and

Santiago.

      In addition to counsel’s Anders brief, Appellant has filed a pro se brief

with this Court. In general, when examining most non-Anders cases, this

Court will not review pro se briefs filed by appellants who have had the benefit

of appellate counsel.     Commonwealth v. Nischan, 928 A.2d 349, 353

(Pa.Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).

            However, Anders specifically contemplates that, after
            counsel files the Anders brief, an appellant may file a pro se
            brief. Indeed, …part of counsel’s duty under Anders is to
            advise the appellant of the right to raise points in addition to
            those in counsel’s Anders brief. Thus, when conducting an
            Anders review, this Court will consider not only the brief
            filed by counsel but also any pro se appellate brief.

            If this Court receives a petition to withdraw and a brief, both
            submitted in accord with Anders, and if we are satisfied that
            counsel has complied with the three technical Anders
            requirements, we will then undertake our own independent
            examination of the issues raised in the Anders brief and in
            any pro se brief to determine whether we agree with
            counsel’s assessment that the appeal before us is frivolous.
            If, after our review, we determine that the appeal is
            frivolous, then we will grant counsel’s petition to withdraw
            and we will affirm the judgment of sentence. However, if it

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           appears that there are non-frivolous issues, we will deny the
           petition to withdraw and remand the case with directions that
           counsel file an advocate’s brief. An advocate’s brief must
           contain fully developed arguments supporting the appellant’s
           position. After the filing thereof, the Commonwealth will
           have the opportunity to submit a responsive brief. Upon
           receipt of the advocate’s brief and the Commonwealth’s
           response, we will then decide the merits of the case.

Id. at 353-354 (citations omitted). Because Appellant has exercised his right

to file a pro se brief, we will review his issue as well.

      Appellant raises the following issues for our review:

         WHETHER THE IMPOSITION OF A 19-MONTH TO 40-MONTH
         SENTENCE IN A STATE CORRECTIONAL INSTITUTION IS
         HARSH AND EXCESSIVE WHEN APPELLANT TOOK
         RESPONSIBILITY BY PLEADING GUILTY; THE OFFENSE
         GRAVITY SCORE WAS INCORRECT; THE TRIAL COURT
         FAILED TO CONSIDER THAT [APPELLANT] IS A FATHER;
         AND APPELLANT ARGUED THAT THE DRUGS IN QUESTION
         WERE NOT IN PLAIN VIEW[?]

(Anders Brief at 2).

         [DID] THE TRIAL COURT [HAVE] ILL-WILL OR BIAS BY
         DIMINISHING [APPELLANT’S] CHARACTER[,] FACTS OF THE
         CIRCUMSTANCES[,] AND THE OFFENSE AT [SENTENCING,]
         AND WAS THERE [AN ACTUAL] FACTUAL BASIS FOR THE
         PLEA?

(Appellant’s Pro Se Supplemental Brief at 2, unpaginated).

      In his first issue, Appellant argues the court imposed a manifestly

excessive sentence. Specifically, Appellant asserts the court used an OGS of

six (6), when the correct OGS should have been five (5). Appellant complains

the court failed to consider Appellant’s taking responsibility for his actions by

pleading guilty and Appellant’s desire to take care of his children as mitigating


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factors. As presented, Appellant challenges the discretionary aspects of his

sentence.5     See Commonwealth v. Williams, 151 A.3d 621 (Pa.Super.

2016) (stating claim that sentencing court used incorrect OGS challenges

discretionary aspects of sentencing); Commonwealth v. Lutes, 793 A.2d

949 (Pa.Super. 2002) (stating claim that sentence is manifestly excessive

challenges discretionary aspects of sentencing); Commonwealth v. Cruz-

Centeno, 668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa. 653, 676

A.2d 1195 (1996) (stating allegation court ignored mitigating factors

challenges discretionary aspects of sentencing).

         Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910

(Pa.Super. 2000). Prior to reaching the merits of a discretionary sentencing

issue:

           [W]e conduct 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, Pa.R.A.P. 2119(f); and (4) whether
           there is a substantial question that the sentence appealed
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5 “[W]hile a guilty plea which includes sentence negotiation ordinarily
precludes a defendant from contesting the validity of his...sentence other than
to argue that the sentence is illegal or that the sentencing court did not have
jurisdiction, open plea agreements are an exception in which a defendant will
not be precluded from appealing the discretionary aspects of the sentence.”
Commonwealth v. Tirado, 870 A.2d 362, 365 n.5 (Pa.Super. 2005)
(emphasis in original). “An ‘open’ plea agreement is one in which there is no
negotiated sentence.” Id. at 363 n.1. Here, Appellant’s guilty plea included
no negotiated sentence.

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         from is not appropriate under the Sentencing Code, 42
         Pa.C.S.A. § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).

      When appealing the discretionary aspects of a sentence, an appellant

must invoke this Court’s jurisdiction by including in his brief a separate concise

statement demonstrating a substantial question as to the appropriateness of

the sentence under the Sentencing Code. Commonwealth v. Mouzon, 571

Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P. 2119(f). “The requirement that an

appellant separately set forth the reasons relied upon for allowance of appeal

furthers the purpose evident in the Sentencing Code as a whole of limiting any

challenges to the trial court’s evaluation of the multitude of factors impinging

on the sentencing decision to exceptional cases.”           Commonwealth v.

Phillips, 946 A.2d 103, 112 (Pa.Super. 2008), cert. denied, 556 U.S. 1264,

129 S.Ct. 2450, 174 L.Ed.2d 240 (2009) (quoting Commonwealth v.

Williams, 562 A.2d 1385, 1387 (Pa.Super. 1989) (en banc)) (emphasis in

original) (internal quotation marks omitted).

      “The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.”       Commonwealth v. Anderson, 830

A.2d 1013, 1018 (Pa.Super. 2003). A substantial question exists “only when

the appellant advances a colorable argument that the sentencing judge’s

actions were either: (1) inconsistent with a specific provision of the Sentencing

Code; or (2) contrary to the fundamental norms which underlie the sentencing

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process.” Sierra, supra at 912-13. An allegation that the sentencing court

failed to consider certain mitigating factors, absent more, does not raise a

substantial question for our review. Commonwealth v. Rhoades, 8 A.3d

912, 918-19 (Pa.Super. 2010), appeal denied, 611 Pa. 651, 25 A.3d 328

(2011), cert. denied, 565 U.S. 1263, 132 S.Ct. 1746, 182 L.Ed.2d 536 (2012).

A claim that the sentencing court applied the incorrect OGS, however, does

raise a substantial question for our review. Commonwealth v. Lamonda,

52 A.3d 365, 371 (Pa.Super. 2012), appeal denied, 621 Pa. 677, 75 A.3d 1281

(2013).

      Our standard of review concerning the discretionary aspects of

sentencing is as follows:

          Sentencing is a matter vested in the sound discretion of the
          sentencing judge, and a sentence will not be disturbed on
          appeal absent a manifest abuse of discretion. In this
          context, an abuse of discretion is not shown merely by an
          error in judgment. Rather, the appellant must establish, by
          reference to the record, that the sentencing court ignored
          or misapplied the law, exercised its judgment for reasons of
          partiality, prejudice, bias or ill will, or arrived at a manifestly
          unreasonable decision.

Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa.Super. 2005), appeal

denied, 586 Pa. 723, 890 A.2d 1057 (2005).

      Instantly, Appellant raised this issue in a post-sentence motion and filed

a timely notice of appeal. Appellant, however, did not set forth a separate

statement of reasons for review under Rule 2119(f) in his appellate brief,

which ordinarily waives a discretionary-aspects-of-sentencing issue, unless


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the Commonwealth fails to object to the omission. See Commonwealth v.

Saranchak, 544 Pa. 158, 675 A.2d 268 (1996) (stating court may overlook

appellant’s failure to provide Rule 2119(f) statement when appellee fails to

object, if substantial question is evident from appellant’s brief; boilerplate

assertions do not qualify as substantial questions regarding discretionary

aspects of sentencing). But see Commonwealth v. Lilley, 978 A.2d 995,

998 (Pa.Super. 2009) (noting Anders requires review of issues otherwise

waived on appeal to determine their merit in order to rule on counsel’s request

to withdraw).

      Here, the Commonwealth declined to file an appellate brief and did not

object to the omission of the Rule 2119(f) statement in Appellant’s brief.

Therefore, we may overlook the omission if Appellant has raised a substantial

question in his brief. See Saranchak, supra. Moreover, counsel filed an

Anders brief, so we would review the issue in any event. Appellant’s assertion

that the sentencing court did not consider mitigating factors and imposed an

excessive sentence, however, does not raise a substantial question.       See

Rhoades, supra. On the other hand, Appellant’s claim that the sentencing

court used the incorrect OGS does raise a substantial question for our review.

See Lamonda, supra.

      A person is guilty of PWID if he intentionally manufactures or delivers a

controlled substance.   35 P.S. § 780-113(a)(30).      The OGS for a PWID

conviction with less than one (1) gram of heroin is six (6). 204 Pa.Code §


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303.15. The standard minimum sentencing range for an offense with an OGS

of six (6) and a defendant with a PRS of four (4) is fifteen (15) to twenty-one

(21) months’ imprisonment. 204 Pa.Code § 303.16(a).

      Here, Appellant pled guilty to PWID of 0.92 grams of heroin under 35

P.S. § 780-113(a)(30), which is less than one gram and carries a OGS of six

(6). The court correctly applied an OGS of six (6) when it sentenced Appellant.

See 204 Pa.Code § 303.15.         Further, the court sentenced Appellant to

nineteen (19) to forty (40) months’ imprisonment, which is within the

standard sentencing range. See 204 Pa.Code § 303.16(a). Thus, the OGS

challenge to the discretionary aspects of the sentence fails.

      In his pro se issue, Appellant avers he was not making excuses at

sentencing for why the drugs were in his apartment; he was stating the drugs

found in his home were not actually in plain view, when his parole officer

searched his residence. Appellant complains his parole officer removed the

drugs from containers and put them in plain view.        Appellant contends he

would not have allowed his parole agent into his residence with drugs in plain

view, because that would be asking to go to jail.       Appellant claims these

assertions call into question the factual basis for his guilty plea. Appellant is

upset that the factual basis for the guilty plea caused the court to apply an

unreasonable sentence.       Appellant also complains the Commonwealth

assumed Appellant was just making up excuses, which led to ill will and bias

at sentencing. As a result of these errors, Appellant concludes his sentence


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is unreasonable and his guilty plea lacked an accurate factual basis.        We

cannot agree.

      “Where an appellant fails to challenge his guilty plea in the trial court,

he may not do so on appeal.” Commonwealth v. Tareila, 895 A.2d 1266,

1270 n.3 (Pa.Super. 2006). An appellant must either object at the sentence

colloquy or otherwise raise an issue related to the guilty plea at the sentencing

hearing or through a post-sentence motion in order to preserve it for appeal

purposes. Id. Here, Appellant did not challenge his guilty plea during his

guilty plea colloquy or at the sentencing hearing.      Appellant also failed to

challenge the guilty plea in his counseled post-sentence motion. Therefore,

Appellant’s challenge to the factual basis of his guilty plea is waived for

purposes of appeal. See id.

      Moreover, “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 be

taken in open court, and require the court to conduct an on-the-record

colloquy to ascertain whether a defendant is aware of his rights and the

consequences of his plea.      Commonwealth v. Hodges, 789 A.2d 764


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(Pa.Super. 2002). Specifically, the record must affirmatively demonstrate a

defendant understood: (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 entry of that plea. Muhammad, supra.

      “[B]efore accepting a plea of guilty, the trial court must satisfy itself that

there is a factual basis for the plea.” Commonwealth v. Fluharty, 632 A.2d

312, 315 (Pa.Super. 1993) (quoting Commonwealth v. Maddox, 450 Pa.

406, 409-10, 300 A.2d 503, 505 (1973)).          The factual basis requirement,

however, does not mandate that the defendant must admit every element of

his crimes. Fluharty, supra.

         In this respect, the United States Supreme Court has held:

            [W]hile most pleas of guilty consist of both a waiver
            of trial and an express admission of guilt, the latter
            element is not a constitutional requisite to the
            imposition of criminal penalty. An individual accused
            of    crime    may     voluntarily,   knowingly,   and
            understandingly consent to the imposition of a prison
            sentence even if he is unwilling or unable to admit his
            participation in the acts constituting the crime.

            Nor can we perceive any material difference between
            a plea that refuses to admit commission of the
            criminal act and a plea containing a protestation of

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              innocence when, as in the instant case, a defendant
              intelligently concludes that his interests require entry
              of a guilty plea and the record before the judge
              contains strong evidence of actual guilt.

           North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160,
           167, 27 L.Ed.2d 162, 171 (1970). See Commonwealth v.
           Cottrell, 433 Pa. 177, 179, 249 A.2d 294, 295 (1969)
           (“[W]here there is significant evidence of guilt…and the
           accused, after adequate consultation with his counsel,
           decides to plead guilty, that plea is not rendered invalid
           merely because the accused is unable or unwilling to detail
           the occurrence in court.”).

           It would appear, therefore, that a defendant may knowingly
           and voluntarily enter a guilty plea as a matter of strategy or
           expedience even though he…is unable or unwilling to admit
           guilt.

Fluharty, supra at 315.         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 his decision to plead guilty, only that his decision

be voluntary, knowing and intelligent.” Id. at 524.

      Here, the court conducted Appellant’s guilty plea hearing on June 29,

2016. The Commonwealth provided the factual basis for Appellant’s plea as

follows:

           On February [9], 2016, the Office of State Parole was

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           searching [Appellant’s] residence in Kingston. He was on
           parole at that time. During that time the agent discovered
           [Appellant] to be in possession of .92 grams of heroin under
           the circumstances indicating an intent to deliver, including
           having scales and packaging material and not having
           paraphernalia commonly used to ingest heroin.

(N.T. Guilty Plea Hearing, 6/29/17, at 5). The record makes clear Appellant

understood the nature of the charges against him, the factual basis for the

plea, his right to trial by jury, the presumption of innocence, the permissible

ranges of sentences and fines possible, and the court was not bound by the

terms of the agreement unless the court accepted the agreement.           See

Watson, supra. Following independent review of the record, we conclude

the appeal is otherwise 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: 06/15/2018




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