J-S45018-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                 v.                            :
                                               :
                                               :
    CARLOS RIVERA                              :
                                               :
                       Appellant               :   No. 161 EDA 2019

       Appeal from the Judgment of Sentence Entered September 4, 2015
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0000283-2014


BEFORE:      BENDER, P.J.E., MURRAY, J., and PELLEGRINI, J.*

MEMORANDUM BY MURRAY, J.:                                FILED AUGUST 28, 2019

        Carlos Rivera (Appellant) appeals from the judgment of sentence

imposed after he pled guilty to third-degree murder, five counts of

endangering the welfare of children (EWOC), three counts of simple assault,

aggravated assault, and related charges.1 Additionally, Appellant’s counsel,

Stephen     T.    O’Hanlon,    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 affirm Appellant’s judgment of sentence and grant Counsel’s petition to

withdraw.




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 2502(c), 4304(a)(1), 2701(a), 2702(a).
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        Due to our disposition, we need not restate the horrific facts underlying

Appellant’s convictions. Appellant entered an open guilty plea on June 11,

2015.     On September 4, 2015, the trial court sentenced Appellant to an

aggregate term of 30 to 60 years in a state correctional institution. Appellant

filed an untimely post-sentence motion to reconsider his sentence on October

2, 2015, which the trial court denied by operation of law on February 4, 2016.

No direct appeal was filed.

        On March 2, 2016, Appellant filed a pro se petition for post-conviction

relief seeking to have his direct appeal rights reinstated nunc pro tunc. Gary

Sanford Server, Esquire, was appointed as counsel, but was subsequently

permitted to withdraw after filing a Turner/Finley2 no-merit letter.

Thereafter, the PCRA court appointed Counsel, who filed an amended PCRA

petition on June 14, 2018. On January 11, 2019, the PCRA court granted

Appellant’s petition and reinstated his direct appeal rights nunc pro tunc.

        This timely appeal followed.           On January 15, 2019, the trial court

ordered Appellant to file a concise statement of errors complained of on appeal

pursuant to Rule 1925 of the Pennsylvania Rules of Appellate Procedure.

Counsel complied, filing a statement pursuant to Pa.R.A.P. 1925(c)(4),

indicating his intention to file an Anders brief on appeal. On March 11, 2019,

Counsel petitioned for leave to withdraw with this Court.



____________________________________________


2 Commonwealth v. Turner, 544 A.2d 927 (Pa.                            1988),   and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).

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      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.

      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


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      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 presented 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 a review of the trial court proceedings to determine

whether there are any other non-frivolous issues that the appellant 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 filed a petition with this Court stating that after

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

to Withdraw as Counsel, 3/11/19, at ¶ 3. 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 5-14. Counsel’s brief sets forth his conclusion

that the appeal is frivolous and includes citation to relevant authority. Id. at

8-14. 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




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counsel and to raise any additional issues that he deems worthy of this Court’s

consideration.

      Counsel’s Anders brief lists two issues that, according to Appellant,

possess arguable merit:

      1. Appellant’s plea counsel forced Appellant into taking a plea by
         forecasting a prospective sentence and Appellant’s plea was
         not, therefore, voluntary.

      2. Appellant should have been allowed to withdraw his plea after
         the imposition of sentence and Appellant told plea counsel that
         he wanted to motion to withdraw his plea after the imposition
         of sentence.

Pa.R.A.P. 1925(c)(4) Statement, 2/1/19.

      Both of Appellant’s issues challenge the validity of his guilty plea.

      “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).



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

      Importantly, we have explained:

      In order to preserve an issue related to a guilty plea, an appellant
      must either “object[ ] at the sentence colloquy or otherwise raise
      [ ] the issue at the sentencing hearing or through a post-sentence
      motion.” Commonwealth v. D'Collanfield, 805 A.2d 1244,
      1246 (Pa. Super. 2002). See Pa.R.Crim.P. 720(A)(1),
      (B)(1)(a)(i); see also Pa.R.A.P. 302(a) (“Issues not raised in the
      lower court are waived and cannot be raised for the first time on
      appeal.”).

Commonwealth v. Monjaras-Amaya, 163 A.3d 466, 468–69 (Pa. Super.

2017).

      Here, Appellant never filed a post-sentence motion seeking to withdraw

his guilty plea.   Additionally, the transcript of the sentencing proceedings

reveals that Appellant did not challenge his guilty plea during sentencing. See

N.T., 9/4/15, at 237-40. Thus, Appellant has waived his claims challenging

the validity of his guilty plea. See Monjaras-Amaya, 163 A.3d at 468-69.

Counsel is correct that raising this issue on appeal would be frivolous.

      Moreover, even if Appellant had properly preserved his challenges to his

guilty plea, we would conclude that the claims are frivolous. 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 guilty plea.

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N.T., 6/11/15, at 5-58; Written Guilty Plea Colloquy, 6/11/15, at 1-3.

Therefore, there is no support for Appellant’s claim that his guilty plea was

not knowing, voluntary or intelligent.

      Finally, after conducting our own independent review of the record, we

have determined that there are no issues of merit and agree with Counsel’s

assessment that Appellant’s direct appeal is frivolous. See Dempster, 187

A.3d at 272. We thus find this appeal wholly frivolous and permit Counsel to

withdraw.

      Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/28/19




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