J-S05022-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               IN THE SUPERIOR COURT OF
                                                 PENNSYLVANIA


                 v.

STEVE BETTENCOURT

                      Appellant                No. 1213 MDA 2016


          Appeal from the Judgment of Sentence April 4, 2016
             In the Court of Common Pleas of Berks County
           Criminal Division at No(s): CP-06-CR-003201-2014


COMMONWEALTH OF PENNSYLVANIA               IN THE SUPERIOR COURT OF
                                                 PENNSYLVANIA


                 v.

STEVEN EDWARD BETTENCOURT

                      Appellant                No. 1214 MDA 2016


          Appeal from the Judgment of Sentence April 4, 2016
             In the Court of Common Pleas of Berks County
          Criminal Division at No(s): CP-06-CR-0004543-2015


COMMONWEALTH OF PENNSYLVANIA               IN THE SUPERIOR COURT OF
                                                 PENNSYLVANIA


                 v.

STEVEN EDWARD BETTENCOURT


                      Appellant                No. 1215 MDA 2016
J-S05022-17


              Appeal from the Judgment of Sentence April 4, 2016
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0000128-2015


BEFORE: BENDER, P.J.E., PANELLA, J., and PLATT, J.

MEMORANDUM BY PANELLA, J.                               FILED MARCH 10, 2017

        In these consolidated appeals, Appellant, Steve Bettencourt, appeals

from the judgment of sentence entered April 4, 2016, in the Court of

Common Pleas of Berks County. In addition, Appellant’s court-appointed

counsel, Roarke Thomas Aston, Esquire, has filed an application to withdraw

as counsel pursuant to Anders v. California, 386 U.S. 738 (1967), and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After careful

review, we affirm the judgment of sentence and grant counsel’s petition to

withdraw.

        The relevant facts and procedural history are as follows. Appellant

entered a negotiated guilty plea at three separate dockets to two counts of

burglary, and one count each of attempted burglary, receiving stolen

property,    prohibited     offensive    weapons,   possession   of   a   controlled

substance, and possession of drug paraphernalia.1 In exchange for the plea,

the Commonwealth agreed to drop all other charges stemming from

Appellant’s commission of a series of burglaries. The trial court imposed the
____________________________________________



    Retired Senior Judge assigned to Superior Court.
1
 18 Pa.C.S.A. §§ 3502(a)(2); 901(a); 3925(a); and 908(a); 35 P.S. § 780-
113(a)(16) and 113(a)(32), respectively.



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agreed-upon aggregate sentence of five to ten years’ incarceration, plus a

total of $27,541.81 in restitution. After the period for timely filing a post-

sentence motion passed, Appellant filed a motion requesting permission to

file a post-sentence motion nunc pro tunc. The court granted Appellant’s

motion, held a hearing on the merits of Appellant’s post-sentence motion,

and ultimately denied Appellant relief. Appellant timely filed a notice of

appeal. Counsel filed a Rule 1925(c)(4) statement of intent to file an Anders

brief in lieu of the court-ordered Rule 1925(b) statement.

     The Pennsylvania Supreme Court has previously set forth the steps a

court-appointed attorney must take when seeking to withdraw from

representing an appellant on direct appeal:

     [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
     arguably believes 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 at 361.

     Attorney Aston has substantially complied with all of the requirements

of Santiago. Attorney Aston verified he sent a copy of his Anders brief and

a letter to Appellant, explaining that Appellant may proceed pro se or else

retain new counsel. Attorney Aston attached a copy of the letter to his

petition. See Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super.


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2010); Commonwealth v. Millisock, 873 A.2d 748, 749 (Pa. Super.

2005). Appellant did not file a response.

      In his Anders brief, counsel identified two appealable issues. The first

pertains to Appellant’s guilty plea. Appellant contends the court should have

permitted him to withdraw the plea after sentencing.

      “We begin with the principle that a defendant has no absolute right to

withdraw a guilty plea; rather, the decision to grant such a motion lies within

the sound discretion of the trial court.” Commonwealth v. Pollard, 832

A.2d 517, 522 (Pa. Super. 2003) (citation omitted). A trial court can only

grant a post-sentence motion to withdraw a guilty plea upon a showing of

prejudice   that   amounts   to   “manifest   injustice.”   Commonwealth    v.

Muhammad, 794 A.2d 378, 383 (Pa. Super. 2002) (citation omitted). “A

plea rises to the level of manifest injustice when it was entered into

involuntarily, unknowingly, or unintelligently.” Id. (citation omitted).

      In order for a guilty plea to be constitutionally valid, the guilty
      plea colloquy must affirmatively show that the defendant
      understood what the plea connoted and its consequences. This
      determination is to be made by examining the totality of the
      circumstances surrounding the entry of the plea. A plea of guilty
      will not be deemed invalid if the circumstances surrounding the
      entry of the plea disclose that the defendant had a full
      understanding of the nature and consequences of his plea and
      that he knowingly and voluntarily decided to enter the plea.

Commonwealth v. Rush, 909 A.2d 805, 808 (Pa. Super. 2006) (citation

omitted). “Our law presumes that a defendant who enters a guilty plea was




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aware of what he was doing. He bears the burden of proving otherwise.” Id.

(citation omitted).

      Instantly, the trial court recounted the circumstances surrounding the

plea as follows:

      This court conducted an oral guilty plea colloquy, and [Appellant]
      also signed a written Statement Accompanying [Appellant’s]
      Request to Enter a Guilty Plea in each docket; these were
      submitted on the record. He acknowledged committing the facts
      placed on the record by the Commonwealth corresponding to the
      counts to which he entered guilty pleas. He stated that he
      understood what he was doing (and this court so found), and
      that he was knowingly and voluntarily entering guilty pleas; he
      was not coerced into doing so. [Appellant] did not contest that
      his prior record score was a 3. He told the court he was satisfied
      with the representation provided him by the attorney at the
      guilty plea and sentencing hearing. [Appellant] was offered the
      opportunity to make a statement to the court prior to
      sentencing, and he did. His attorney also provided relevant
      information.

Trial Court Opinion, filed 9/12/16, at 2-3.

      Appellant did not attempt to withdraw his guilty plea by motion prior

to this appeal. Appellant halfheartedly argued during his post-sentence

motion hearing that he did not fully understand his plea; however, that

contention is belied by the evidence on the record and recounted in the trial

court’s   opinion   showing   otherwise.   Appellant   carries   the   burden   of

establishing that his guilty plea was not knowing or voluntary in order to

show circumstances that would merit withdrawal. Appellant has failed to do

so, and we find no evidence on the record that would support this position.

      Appellant also argued during his post-sentence motion hearing, and


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obliquely on appeal, that the trial court improperly set the award of

restitution. “An appeal from an order of restitution based upon a claim that a

restitution order is unsupported by the record challenges the legality, rather

than the discretionary aspects, of sentencing.” Commonwealth v. Kinnan,

71 A.3d 983, 986 (Pa. Super. 2013) (citation omitted). “The determination

as to whether the trial court imposed an illegal sentence is a question of law;

our standard of review in cases dealing with questions of law is plenary.”

Commonwealth v. Stradley, 50 A.3d 769, 772 (Pa. Super. 2012) (citation

omitted).

      While it is true that the practice of plea bargaining is looked
      upon with favor, the integrity of our judicial process demands
      that certain safeguards be stringently adhered to so that the
      resultant plea as entered by a defendant and accepted by the
      trial court will always be one made voluntarily and knowingly,
      with a full understanding of the consequences to follow. Most
      pertinent … is the requirement that when counsel for both sides
      enter into a plea agreement, the terms of that agreement must
      be stated in open court.

Commonwealth v. Kroh, 654 A.2d 1168, 1172 (Pa. Super. 1995) (citations

omitted). Where the language of a plea agreement sets out its terms with

specificity, the agreement controls. See id.

      The record negates any assertion that Appellant’s plea with respect to

restitution was unknowing or involuntary. Appellant and the Commonwealth

agreed to the amount of restitution imposed. See N.T., Guilty Plea and

Sentencing Hearing, 4/4/16 at 18. The Commonwealth provided extensive

information regarding the basis for the restitution, including the value of


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property taken from each burglarized household. See id., at 6-9. Appellant

admitted he was pleading guilty because he committed the stated crimes,

and entered his guilty plea. See id., at 10-11. The Commonwealth dismissed

several charges in light of Appellant entering the guilty plea. See id., at 13-

14. The court read the terms of the plea into the record at the time it

sentenced Appellant and imposed restitution. See id., at 20-23.

      Accordingly, to the extent Appellant argues the order of restitution is

not supported by the record, we reject this argument. We find Appellant’s

contentions regarding withdrawal of his guilty plea to be without merit;

consequently, Appellant is due no relief on this claim.

      The second issue identified by counsel is a challenge to the

discretionary aspects of the sentence. “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, 1028 (Pa. Super. 2010) (citation omitted). An appellant may not

challenge the discretionary aspects of his sentence when his negotiated plea

included the terms of his sentence. See Commonwealth v. Baney, 860

A.2d 127, 131 (Pa. Super. 2004).

      When a negotiated plea includes sentencing terms (or, more
      properly, the Commonwealth’s commitment to recommend a
      certain sentence), the defendant’s knowing and voluntary
      acceptance of those terms rightly extinguishes the ability to
      challenge a sentence the defendant knew was a proper
      consequence of his plea.

Commonwealth v. Eisenberg, 98 A.3d 1268, 1276 (Pa. 2014).


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      Instantly, the trial court imposed the recommended sentence that

Appellant negotiated with the Commonwealth. Thus, Appellant received

precisely the sentence for which he bargained, and cannot challenge the

discretionary aspects of that sentence. Accordingly, we find Appellant’s

second issue likewise merits no relief.

      After examining the issues contained in the Anders brief and

undertaking a thorough and independent review of the record, we agree with

counsel’s assessment that this appeal is wholly frivolous.

      Judgment of sentence affirmed. Permission to withdraw as counsel

granted.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/10/2017




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