J-S58038-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

ERIC JAMES LOPEZ

                            Appellant                No. 591 WDA 2014


            Appeal from the Judgment of Sentence March 11, 2014
                In the Court of Common Pleas of Potter County
             Criminal Division at No(s): CP-53-CR-0000011-2013


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                    FILED DECEMBER 22, 2014

        Appellant, Eric James Lopez, appeals the judgment of sentence

entered in the Potter County Court of Common Pleas, following his

negotiated guilty plea to one count of simple assault and one count of

recklessly endangering another person (“REAP”).1        We affirm and grant

counsel’s petition to withdraw.

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

Appellant entered into a plea agreement on March 6, 2014, on charges

arising from an incident on December 9, 2012, in which Appellant pushed

the victim to the ground and struck her repeatedly in the face. The victim

____________________________________________


1
    18 Pa.C.S.A. §§ 2701(a), 2705.


_________________________

*Retired Senior Judge assigned to the Superior Court.
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suffered a broken nose, broken jaw, broken cheekbone, and numerous

lacerations and abrasions.        The trial court, however, later determined that

the sentence the Commonwealth had recommended actually exceeded the

statutory maximum sentence. Subsequently, the court allowed Appellant to

revoke the earlier plea and enter a new negotiated and binding plea

agreement.      Appellant entered the new plea on March 11, 2014, to one

count of simple assault and one count of REAP.          The new plea agreement

specifically provided that Appellant would not receive credit for time served.

Counsel explained the provisions of the plea agreement to Appellant, and the

court reiterated them when Appellant entered his new plea.           At the plea

hearing, Appellant stated on the record that he understood the plea

agreement and wished to proceed with it. The court imposed the agreed-

upon sentence immediately following the plea proceedings.2

       Appellant timely filed notice of appeal on April 7, 2014. On April 10,

2014, the court ordered Appellant to file a Rule 1925(b) statement. On April

16, 2014, the court ordered Appellant to file a corrective Rule 1925(b)

statement.     On April 22, 2014, Appellant’s counsel filed a Rule 1925(c)(4)

statement of his intent to file an 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.
____________________________________________


2
  Counsel filed a petition with the trial court to withdraw as counsel on April
1, 2014, which the court denied on April 9, 2014.



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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)).

       In Santiago, supra, our Supreme Court addressed the briefing

requirements where court-appointed appellate counsel seeks to withdraw

representation:

          Neither Anders nor McClendon[3] requires that counsel’s
          brief provide an argument of any sort, let alone the type of
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3
    Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).



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         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, counsel filed a petition for leave to withdraw representation.

The petition states counsel reviewed the record and determined the appeal is

wholly frivolous.   Counsel indicates he notified Appellant of the withdrawal

request. Counsel also supplied Appellant with a copy of the brief and a letter

explaining Appellant’s right to proceed pro se or with new privately retained

counsel to raise any additional points or arguments that Appellant believes

have merit. In his Anders brief, counsel provides a short summary of the

facts and procedural history of the case with reference to the record.

Counsel also refers to evidence in the record that may arguably support the

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appeal, and he provides citations to sentencing law. Counsel also states the

reasons for his conclusion that the appeal is wholly frivolous. Thus, counsel

has complied with the requirements of Anders and Santiago.

     As Appellant has filed neither a pro se brief nor a counseled brief with

new privately retained counsel, we review this appeal on the basis of the

issues raised in the Anders brief:

        WHETHER AN APPLICATION TO WITHDRAW AS COUNSEL
        SHOULD    BE   GRANTED    WHERE  COUNSEL    HAS
        INVESTIGATED THE POSSIBLE GROUNDS OF APPEAL AND
        FINDS THE APPEAL FRIVOLOUS?

        WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY
        IMPOSING [A] SENTENCE THAT DID NOT GIVE CREDIT
        FOR TIME SERVED?

(Anders Brief at 4).

     Appellant argues his sentence should be reduced with proper credit for

time served.   Appellant claims he is entitled to nearly fifteen months of

credit for time he spent incarcerated on the offenses. Appellant concludes

the trial court erred in failing to give Appellant the credit he claims he

deserves. We disagree.

     As a general rule, the entry of a guilty plea constitutes a waiver of all

defects and defenses except lack of jurisdiction, invalidity of the plea, and

illegality of the sentence.     Commonwealth v. Main, 6 A.3d 1026

(Pa.Super. 2010).      “We have recognized the importance of the plea

bargaining process as a significant part of the criminal justice system.”

Commonwealth v. Byrne, 833 A.2d 729, 735 (Pa.Super. 2003). “We are

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aware of no authority that provides an impediment to a defendant’s express,

knowing, and voluntary waiver of a statutory right if that waiver is key in

obtaining a bargained-for exchange from the Commonwealth.” Id. at 736.

Case law supports the conclusion that a defendant can waive his right to

credit for time served as part of a negotiated plea bargain. Id.

        In the instant case, Appellant entered a negotiated and binding guilty

plea.   The record makes clear Appellant understood the terms of the plea

agreement, which included no credit for time served.      Appellant made no

claim that his plea was unknowing, involuntary, or unintelligent.    Because

the sentence imposed was lawful, we see no reason to disturb it.

Accordingly, we affirm and grant counsel’s petition to withdraw.

        Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/22/2014




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