J-S27038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                          IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                             Appellee

                       v.

ANTHONY CEDENO,

                             Appellant                        No. 1710 MDA 2015


            Appeal from the Judgment of Sentence August 31, 2015
                In the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-CR-0001060-2015

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

MEMORANDUM BY STEVENS, P.J.E.:                                FILED APRIL 07, 2016

       Appellant Anthony Cedeno (“Appellant”) appeals from the judgment of

sentence entered in the Court of Common Pleas of Berks County after he

entered an open guilty plea to one count each of retail theft, conspiracy to

commit retail theft, and possession of drug paraphernalia.1 Sentenced to a

standard    guideline       range   sentence   of   fifteen   months   to   six   years’

incarceration for retail theft, with a concurrent seven years’ probation for

conspiracy and a concurrent one year of probation for possession of drug

paraphernalia, Appellant contends his guilty plea was invalid and his

sentence the product of the court’s abuse in sentencing discretion.

Appointed counsel also seeks to withdraw from this appeal on the basis of
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1
  18 Pa.C.S.A. §§ 3929(a)(1), and 903(a)(1), and 35 P.S. § 780-113(a)(32),
respectively.



*Former Justice specially assigned to the Superior Court.
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frivolity in conformance with Anders v. California, 386 U.S. 738 (1967)

and Commonweatlh v. Santiago, 978 A.2d 349 (Pa. 2009).               We affirm

and grant counsel’s petition to withdraw.

      On March 24, 2015, Appellant was charged with the above-cited three

offenses as well as with one count of receiving stolen property. On August

31, 2015, he entered an open plea to the three offenses, in exchange for the

withdrawal of the receiving stolen property count, and the trial court

conducted a plea colloquy.    The guilty plea/sentencing notes of transcript

reveal that the court confirmed that Appellant understood the nature and

elements of his offenses, the presumption of his innocence and his right to a

jury trial, his right to file pretrial motions, the waiver of such rights when a

guilty plea is entered, and the limited rights upon which to challenge a guilty

plea or one’s sentence..    N.T. 8/31/15 at 3-4.    Appellant verified that he

prepared his written guilty plea with his attorney, he denied having any

questions about his written plea, and he expressed satisfaction with his

attorney. Id. at 5.

      The Commonwealth recited the facts upon which it based its charges,

and Appellant agreed the recitation was accurate.        Id. at 7.   The court

advised Appellant that the plea was an open plea, without a plea bargain or

plea agreement in place, and, as such, he could not withdraw his plea after

receiving sentence as he would be able to do if his plea were negotiated. Id.

at 8. Appellant conveyed his understanding of that as well. Id. The court

informed Appellant about the maximum sentences he could receive for each

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offense and explained they could be run consecutively, and Appellant

indicated he understood. Id. at 7-8. With that, Appellant pled guilty to the

three counts and proceeded to sentencing. Id. at 9.

         The standard range sentence given Appellant’s offense gravity and

prior record scores was twelve to eighteen months on the count of retail

theft.    Id. at 10-11.   The Commonwealth recommended an aggravated

range sentence of two to five years’ incarceration.     Id. at 11.   Reasons

offered to support this request were Appellant’s extensive criminal history,

his most recent sentence of 1½ to 4 years in prison for retail theft, his lack

of remorse, and a lack of amenability to rehabilitation. Id. at 11-12. The

Commonwealth also cited Appellant’s failure to accept an original offer of a

bottom-end, standard range sentence of one to five years, which the

Commonwealth opined was a generous offer considering the store security

cameras provided clear and undeniable video of Appellant’s involvement in

the theft.     Id.   Appellant’s co-conspirator had accepted this offer, the

Commonwealth related. Id.

         Appellant’s counsel asked for a mitigated range sentence of eleven

months to twenty-three months’ incarceration, citing a relapse into heroin

use caused by his father’s death, mental health issues, and successful

completion of a drug and alcohol out-patient treatment program. Id. at 14.

Appellant spoke on his own behalf and recounted a childhood of physical

abuse, being removed from his family by Children’s Services and placed in

various children’s homes where he claims he was sexually molested several

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times, and eventually becoming a run-away living in Atlantic City, New

Jersey. Id. at 17.

         As noted above, the court imposed a standard guideline range, state

sentence of fifteen months to six years’ incarceration. In so doing, the court

indicated that it had considered all of Appellant’s information—including his

presentence investigation report, statements of counsel, and Appellant’s

personal statement—and the potential benefit of state prison treatment

programs.      Id. at 18-19.     Following the court’s denial of post sentence

motions, this timely appeal followed.

         Counsel has filed with this court a petition to withdraw and an Anders

brief.    Thus, before we consider the substance of this appeal, we must

address counsel's compliance with Anders:

         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

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       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 clarified portions of the Anders procedure:

       Accordingly, we hold that in 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.

Santiago, 978 A.2d at 361.

       Based upon our examination of counsel's petition to withdraw and

Anders     brief,   we    conclude     that    counsel   has   satisfied   the   above

requirements.2      Therefore, we shall conduct an independent review of the

appeal to determine whether it is indeed wholly frivolous.

       Appellant raises the following two issues for our review:

       1. Whether the lower court erred in denying Appellant’s Motion
          to Withdraw his Guilty Plea, where Appellant’s guilty plea was
          not knowingly, voluntarily or intelligently done because
          Appellant was deprived of additional plea negotiations as he
          was not present for call of the list on August 27, 2015, and
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2
 Appellant has not filed a pro se response raising any additional points for
our consideration.




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         therefore could only enter an open plea in the above
         captioned matter.

      2. Whether the sentencing court abused its discretion when it
         sentenced Appellant to a greater period of confinement than
         that which was consistent with the protection of the public,
         the gravity of the offense as it relates to the impact on the
         victim and on the community, and Appellant’s rehabilitative
         needs.

Appellant’s brief at 6.

      Our standard of review for post-sentence motions to withdraw guilty

pleas is well-settled:

      after the court has imposed a sentence, a defendant can
      withdraw his guilty plea “only where necessary to correct a
      manifest injustice.” Commonwealth v. Starr, 450 Pa. 485,
      490, 301 A.2d 592, 595 (1973). “[P]ost-sentence motions for
      withdrawal are subject to higher scrutiny since courts strive to
      discourage the entry of guilty pleas as sentencing-testing
      devices.”    Commonwealth v. Kelly, 5 A.3d 370, 377
      (Pa.Super. 2010), appeal denied, 613 Pa. 643, 32 A.3d 1276
      (2011). If the appellant knows the only possible sentence he
      can get for the crime to which he pled guilty, then any pre-
      sentence motion to withdraw the plea is akin to a post-sentence
      motion to withdraw the plea, and the “manifest injustice”
      standard     will   apply   to   the    pre-sentence      motion.
      Commonwealth v. Lesko, 502 Pa. 511, 517, 467 A.2d 307,
      310 (1983).
            To be valid, a guilty plea must be knowingly, voluntarily
      and intelligently entered. Commonwealth v. Pollard, 832
      A.2d 517, 522 (Pa.Super. 2003). “[A] manifest injustice occurs
      when a plea is not tendered knowingly, intelligently, voluntarily,
      and understandingly.” Commonwealth v. Gunter, 565 Pa. 79,
      84, 771 A.2d 767, 771 (2001). The Pennsylvania Rules of
      Criminal Procedure mandate 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, 765 (Pa.Super .2002) (citing Pa.R.Crim.P. 590).
      Under Rule 590, the court should confirm, inter alia, that a
      defendant understands: (1) the nature of the charges to which

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     he is pleading guilty; (2) the factual basis for the plea; (3) he is
     giving up his right to trial by jury; (4) and the presumption of
     innocence; (5) he is aware of the permissible ranges of
     sentences and fines possible; and (6) the court is not bound by
     the terms of the agreement unless the court accepts the plea.
     Commonwealth v. Watson, 835 A.2d 786 (Pa.Super. 2003).
     The reviewing Court will evaluate the adequacy of the plea
     colloquy and the voluntariness of the resulting plea by examining
     the totality of the circumstances surrounding the entry of that
     plea.     Commonwealth v. Muhammad, 794 A.2d 378
     (Pa.Super. 2002). Pennsylvania law presumes a defendant who
     entered a guilty plea was aware of what he was doing, and the
     defendant bears the burden of proving otherwise. Pollard,
     supra.

Commonwealth v. Prendes, 97 A.3d 337, 352-53 (Pa.Super. 2014).

     There is no indication in the record before us that Appellant’s

counseled written and oral pleas were involuntary. The record suggests that

the Commonwealth had offered its negotiated plea sometime before August

27, 2015, which would have given Appellant the opportunity to accept the

plea at any time prior to the August 27th deadline.      Moreover, Appellant

clearly had the opportunity to explain to the court that but for the prison’s

failure to transport him to his scheduled court appearance on August 27,

2015, he would have accepted the Commonwealth’s plea offer on that date.

He did not avail himself of this opportunity.   Instead, he verified with the

court that he understood every aspect to his open plea, chose to enter an

open plea, asked for a mitigated range sentence with a top end of twenty-

five months’ less time than what the Commonwealth offered, and presented

his case in mitigation. Without any suggestion in this record that Appellant

was truly denied an opportunity to accept the Commonwealth’s negotiated



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plea   offer,   we    conclude     that   Appellant   voluntarily,   knowingly,   and

intelligently entered his open plea.           We, therefore, discern no manifest

injustice associated with his plea that would permit him to withdraw it.

       Appellant next contends that the court’s standard range sentence

represents an abuse of sentencing discretion.3

       Our standard of review in an appeal from the discretionary aspects of

a sentence is well settled:

             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. An abuse of
       discretion is more than just an error in judgment and, on appeal,
       the trial court will not be found to have abused its discretion
       unless the record discloses that the judgment exercised was
       manifestly unreasonable, or the result of partiality, bias or ill-
       will.

Commonwealth v. McNabb, 819 A.2d 54, 55 (Pa.Super. 2003). However,

there is no absolute right to appeal the discretionary aspects of a sentence.

Commonwealth v. Reyes, 853 A.2d 1052, 1055 (Pa.Super. 2004).                       To

reach the merits of a discretionary sentencing issue, we conduct a four-part

analysis to determine: (1) whether appellant filed a timely notice of appeal;

(2) whether the issue was properly preserved at sentencing or in a motion to

reconsider and modify sentence; (3) whether appellant's brief contains a
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3
   Appellant’s guilty plea does not preclude him from challenging the
discretionary aspects of his sentence because there was no agreement as to
the sentence he would receive. See Commonwealth v. Hill, 66 A.3d 359,
363 (Pa.Super. 2013) (holding that defendant may challenge discretionary
aspects of sentence on appeal where open guilty plea is entered).



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concise statement of the reasons relied upon for allowance of appeal with

respect to the discretionary aspects of a sentence pursuant to Pa.R.A.P.

2119(f); and (4) whether there is a substantial question that the sentence

appealed     from     is   not    appropriate    under   the   Sentencing   Code.

Commonwealth v. Mastromarino, 2 A.3d 581, 585 (Pa.Super. 2010).

       Here, Appellant clearly satisfies the first three requirements to

obtaining our discretionary review, and his claim that his standard range

sentence is excessive, as the trial court failed to consider mitigating factors

and all relevant factors under 42 Pa.C.S.A. § 9721(b), raises a substantial

question.    See Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa.Super.

2012) (stating that failure “to consider relevant sentencing criteria, including

the protection of the public, the gravity of the underlying offense and the

rehabilitative needs” of the defendant raised a substantial question);

Commonwealth v. Perry, 883 A.2d 599, 602 (Pa.Super. 2005) (stating

that an excessiveness sentence claim, in conjunction with an assertion that

the court did not consider mitigating factors, raised a substantial question). 4




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4
  Even if Appellant failed to raise a substantial question, Anders requires
that we examine the merits of Francis's claims to determine whether his
appeal is, in fact, “wholly frivolous” in order to rule upon counsel's request to
withdraw. See Commonwealth v. Wilson, 578 A.2d 523, 525 (Pa.Super.
1990) (stating that discretionary aspects of sentencing claims raised in an
Anders brief must be addressed on appeal, despite procedural violations).




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     In conducting merits review of Appellant’s claim that his standard

range sentence is excessive because of the trial court’s failure to consider

properly his mitigating circumstances, his rehabilitative needs, and the

threat he posed to public safety, we find guidance in the following

precedent:

     As we indicated in Commonwealth v. Moury, 992 A.2d 162,
     171 (Pa.Super. 2010), where the sentencing court imposed a
     standard-range sentence with the benefit of a pre-sentence
     report, we will not consider the sentence excessive. In those
     circumstances, we can assume the sentencing court “was aware
     of relevant information regarding the defendant's character and
     weighed those considerations along with mitigating statutory
     factors.” Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12,
     18 (1988); see also Commonwealth v. Tirado, 870 A.2d 362,
     368 (Pa.Super. 2005) (if sentencing court has benefit of pre-
     sentence investigation, law expects court was aware of relevant
     information regarding defendant's character and weighed those
     considerations along with any mitigating factors). Moreover, we
     can reverse a standard-range sentence only if the sentence is
     clearly unreasonable when viewed in light of the four statutory
     factors outlined in 42 Pa.C.S. § 9781(d). Commonwealth v.
     Walls, 592 Pa. 557, 926 A.2d 957, 963–964 (2007); see also
     Commonwealth v. Macias, 968 A.2d 773 (Pa.Super. 2009).
     Section 9781(d) provides that when we review this type of
     question, we have regard for:

             (1) The nature and circumstances of the offense and the
             history and characteristics of the defendant.

             (2) The opportunity of the sentencing court to observe the
             defendant, including any presentence investigation.

             (3) The findings upon which the sentence was based.

             (4) The guidelines promulgated by the commission.

     Walls, supra at 963. Furthermore, “rejection of a sentencing
     court's imposition of sentence on unreasonableness grounds


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      [should] occur infrequently, whether the sentence is above or
      below the guidelines ranges.” Macias, supra at 777 (quoting
      Walls, supra at 964).

Commonwealth v. Corley, 31 A.3d 293, 298 (Pa.Super. 2011).

      The court openly stated that it considered arguments of counsel,

Appellant’s statement, and Appellant’s presentence investigation report in

formulating its standard range sentence.      In that regard, it heard that

Appellant had four retail theft convictions in the previous seven years,

including the most recent in 2012 for which he was sentenced to serve one

and one-half to four years’ incarceration.    N.T. at 9-10.   The court also

specifically referenced Appellant’s “very hard life,” as well as his need for

drug rehabilitation services and attendance in shoplifting offender classes

available in state prison.   Id. at 18-20.   As the record demonstrates the

court considered the seriousness of Appellant’s crime, the protection of the

public, and his mitigating circumstances at the sentencing hearing, we

decline to find the standard range sentence imposed was excessive.

      Judgment of sentence is AFFIRMED. Counsel’s petition to withdraw is

granted.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/7/2016


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