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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                    v.                         :
                                               :
                                               :
    PEDRO DOMENA                               :
                                               :
                             Appellant         :   No. 1857 EDA 2019

       Appeal from the Judgment of Sentence Entered October 19, 2016
    In the Court of Common Pleas of Montgomery County Criminal Division
                      at No(s): CP-46-CR-0007559-2013


BEFORE: NICHOLS, J., McCAFFERY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY NICHOLS, J.:                                FILED JULY 01, 2020

        Appellant Pedro Domena appeals from the judgment of sentence

imposed after he pled guilty to rape, involuntary deviate sexual intercourse

by forcible compulsion, false imprisonment, and corruption of minors.1

Appellant’s counsel has filed a petition to withdraw and an Anders/Santiago2

brief. We affirm and grant counsel’s petition to withdraw.

        By way of background,

        [o]n December 18, 2013, [the Commonwealth filed a criminal
        information] charging Appellant with 143 different counts ranging
        from rape to indecent exposure, all of which related to Appellant’s
        abuse of Mother and her two minor daughters. [Trial was
____________________________________________
1 18 Pa.C.S. §§ 3121(a)(2), 3123(a)(2), 2903(a), and 6301(a)(1)(ii),
respectively.

2Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
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        scheduled to begin o]n May 16, 2016 . . . instead, as the jury was
        about to enter the courtroom [for voir dire], Appellant requested
        to enter a guilty plea.[3] Appellant completed a written guilty plea
        colloquy and addendum colloquy for sexual offenders, each
        confirming Appellant understood his rights and was making a
        knowing, intelligent, and voluntary waiver of his right to a trial
        and entry into an open guilty plea.[fn1], [4] [That] same day,
        Appellant entered an open guilty plea to [rape, IDSI, false
        imprisonment, and corruption of minors]. All remaining counts
        were nolle prossed. The [trial c]ourt ordered [a] pre-parole
        investigation (PPI), pre-sentence investigation (PSI) report,
        psychosexual evaluation, and sexually violent predator (SVP)
        assessments and sentencing was deferred. Appellant waived the
        90-day rule on the record. On September 15, 2016, Appellant’s
        sentencing and SVP hearings were scheduled for October 19,
        2016.
             [fn1]The guilty plea was open but had negotiated terms,
             including a cap on Appellant’s minimum sentence of fifteen
             (15) years’ imprisonment. At sentencing, the [trial c]ourt
             in its discretion imposed a sentence that ran the maximum
             years consecutively on each count.

Trial Ct. Suppl. Op., 12/12/19, at 1-3 (some footnotes omitted, formatting

altered).




____________________________________________
3On the day Appellant was scheduled for trial, Appellant was represented by
Patrick McMenamin, Esq. (trial counsel), who was appointed to represent
Appellant on November 10, 2015.

Prior to trial counsel’s appointment, Appellant was represented by two other
attorneys: Vincent Cirillo, Esq., who entered his appearance on behalf of
Appellant on February 10, 2014, and Hindi Kranzel, Esq., who entered her
appearance on November 6, 2015.

4During the colloquy, Appellant confirmed that no one “forced, threatened, or
coerced” him to plead guilty and that he was pleading guilty on his own free
will. See Guilty Plea Hr’g at 11-12.


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        On October 18, 2016, the day before sentencing, the trial court docketed

two pro se filings by Appellant.5                    First, Appellant asserted that he had

“irreconcilable differences” with trial counsel and requested that the trial court

appoint        new       counsel        on     his   behalf.    See   Pro   Se   Mot.   for

Ineffective/Appointment of Counsel, 10/18/16, at 1. In support of his claim,

Appellant argued that trial counsel forced him to enter a guilty plea, failed to

adequately communicate with Appellant or his family, and refused to file a

suppression motion or hire a private investigator. Id. at 1-3.

        Appellant also sought to withdraw his guilty plea, asserting that he was

innocent and that his plea was not knowing, voluntary, and intelligent. See

Pro Se Mot. to Withdraw Guilty Plea, 10/18/16, at 2. Appellant argued that

his plea was entered “under coercion and extreme mental and emotional

duress because he was frightened and confused in that he is not educated or

aware in the matters of applicable law, rules of criminal procedure and rules

of evidence.” Id.

        At the outset of the sentencing hearing on October 19, 2016, the trial

court addressed Appellant’s pro se filings.6 In denying Appellant’s motion for

____________________________________________
5 The trial court indicated that although the clerk of courts docketed
Appellant’s pro se filings on October 18, 2016, the trial court did not receive
a copy of Appellant’s motions until an hour and a half before the sentencing
hearing.

6 The trial court explained that it “had the opportunity to conference with
counsel” regarding Appellant’s pro se motions.       N.T. Sentencing Hr’g,
10/19/16, at 3. Further, the trial court explained that “[w]hile the [c]ourt
does not generally permit hybrid representation and will only take motions


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new counsel, the trial court explained to Appellant that he was “entitled to

competent counsel, not counsel of [his] choice” and noted that trial counsel

was “an experienced, skilled criminal defense attorney who has represented

[Appellant] well in [his] case.” N.T. Sentencing Hr’g at 4.

        The trial court then allowed trial counsel to supplement Appellant’s

motion to withdraw his guilty plea. Trial counsel indicated that “as [Appellant]

sets forth in the motion, he is innocent of all charges and, therefore, he would

like to withdraw the plea and proceed to trial.”              Id.   In response, the

Commonwealth argued that Appellant had failed to make “a plausible or

colorable claim of innocence.” Id. at 5.             Specifically, the Commonwealth

referred to Appellant’s PPI evaluation, in which he admitted to threatening and

engaging in sexual intercourse with his victims. Id. Thereafter, the trial court

denied Appellant’s motion.

        The trial court then proceeded with Appellant’s SVP and sentencing

hearing. Id. at 6. Ultimately, the trial court determined that Appellant was

an SVP and sentenced Appellant to an aggregate term of fifteen to fifty-seven

years’ imprisonment. Id. at 59.

        On October 28, 2016, Mark Kevin Wray, Esq. (Attorney Wray) entered

his appearance on Appellant’s behalf. On November 1, 2016, Appellant filed

an untimely post-sentence motion.               Appellant subsequently filed a timely

notice of appeal and a court-ordered Pa.R.A.P. 1925(b) statement. The trial

____________________________________________

filed by counsel, based on the nature of these motions, the [c]ourt will address
them.” Id.

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court issued a Rule 1925(a) opinion asserting that Appellant’s claims were

meritless.       Appellant’s appeal was ultimately dismissed by this Court after

Appellant failed to file a brief.

        On March 27, 2018, the trial court docketed Appellant’s pro se request

for appointed counsel. The trial court appointed Andrew Joseph Levin, Esq.

(Attorney Levin) to represent Appellant.                  Appellant filed a Post Conviction

Relief Act7 (PCRA) petition requesting that the trial court reinstate his direct

appeal rights nunc pro tunc.                   On June 3, 2019, the trial court reinstated

Appellant’s direct appeal rights.8

        On June 13, 2019, Attorney Levin filed a motion to withdraw and

requested that the trial court appoint counsel on Appellant’s behalf. Appellant

filed a timely notice of appeal on July 1, 2019. On August 26, 2019, the trial

court granted Attorney Levin’s motion to withdraw and appointed Bonnie-Anne

Keagy, Esq. (counsel) to represent Appellant.

        Appellant filed a motion with this Court requesting that we remand the

matter for the filing of a new Rule 1925(b) statement. On November 4, 2019,

we granted Appellant’s motion and ordered the trial court to file a

supplemental Rule 1925(a) opinion addressing Appellant’s claims. See Order,



____________________________________________
7   42 Pa.C.S. §§ 9541-9546.

8The trial court did not reinstate Appellant’s right to file post-sentence
motions.



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11/4/19. Appellant subsequently filed a Rule 1925(b) statement,9 and the

trial court issued a supplemental Rule 1925(a) opinion asserting that

Appellant’s issues were meritless.

        On appeal to this Court, counsel filed an Anders/Santiago brief and a

separate petition to withdraw. Counsel’s withdrawal petition indicates that

she sent a copy of the Anders brief to Appellant, and also includes a copy of

the letter she sent to Appellant advising him of his right to proceed pro se or

with new, privately retained counsel. Appellant has not filed a pro se response

or a counseled brief with new counsel.

        Counsel’s Anders/Santiago brief identifies the following issue:

        Is the record devoid of any issue having arguable merit and is
        Appellant’s appeal wholly frivolous?

Anders/Santiago Brief at 4 (full capitalization omitted).10

        “When faced with a purported Anders brief, this Court may not review

the merits of any possible underlying issues without first examining counsel’s

request to withdraw.” Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa.

Super. 2008) (citation omitted).               Counsel must comply with the technical

requirements for petitioning to withdraw by (1) filing a petition for leave to
____________________________________________
9 Therein, Appellant argued that (1) the trial court erred by denying
Appellant’s pro se motion to withdraw his guilty plea and by failing to conduct
an on-the-record colloquy concerning Appellant’s reasons for the withdrawal;
and (2) the trial court erred by denying Appellant’s motion for new counsel
and by allowing trial counsel to represent Appellant at sentencing in light of
Appellant’s allegations of ineffectiveness.        Appellant’s Rule 1925(b)
Statement, 11/20/19, at 1-2.

10   The Commonwealth did not file a brief.

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withdraw stating that after making a conscientious examination of the record,

counsel has determined that the appeal would be frivolous; (2) providing a

copy of the brief to the appellant; and (3) advising the appellant that he has

the right to retain private counsel, proceed pro se, or raise additional

arguments that the appellant considers worthy of the court’s attention. See

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en

banc).

      Additionally, counsel must file a brief that meets the requirements

established by the Pennsylvania Supreme Court in Santiago, namely:

      (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.

      Only after determining that counsel has satisfied these technical

requirements, may this Court “conduct an independent review of the record

to discern if there are any additional, non-frivolous issues overlooked by

counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super.

2015) (citations and footnote omitted); accord Commonwealth v. Yorgey,

188 A.3d 1190, 1197 (Pa. Super. 2018) (en banc).

      Here, counsel has complied with the procedures for seeking withdrawal

by filing a petition to withdraw, sending Appellant a letter explaining his

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appellate rights, and supplying Appellant with a copy of the Anders/Santiago

brief.       See   Goodwin,      928   A.2d   at   290.     Moreover,    counsel’s

Anders/Santiago brief complies with the requirements of Santiago.

Counsel includes a summary of the relevant factual and procedural history,

refers to the portions of the record that could arguably support Appellant’s

claims, and sets forth the conclusion that the appeal is frivolous. Accordingly,

we conclude that counsel has met the technical requirements of Anders and

Santiago, and we will proceed to address the issues raised in the

Anders/Santiago brief.

                   Pre-Sentence Motion to Withdraw Guilty Plea

         Counsel first identifies Appellant’s claim that the trial court abused its

discretion by denying Appellant’s pre-sentence motion to withdraw his guilty

plea. Anders/Santiago Brief at 19. Counsel explains that the trial court

properly rejected Appellant’s motion to withdraw his plea, as Appellant made

“no plausible demonstration of innocence.” Id. at 26. Counsel notes that

although Appellant claimed that he was innocent, he never made “any claim

as to what facts [from the plea colloquy] were not true. Rather, his pro se

motion states that he was ‘frightened and confused’ at the time of his plea.”

Id. at 25. Further, counsel states that although Appellant asserted that he

was coerced and threatened into pleading guilty, the trial court determined

that Appellant’s claims were not credible. Id. at 25-26.




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      We review a trial court’s ruling on a pre-sentence motion to withdraw a

guilty plea for an abuse of discretion. Commonwealth v. Elia, 83 A.3d 254,

261 (Pa. Super. 2013). Our Supreme Court has held that “[t]he proper inquiry

on consideration of such a withdrawal motion is whether the accused has

made some colorable demonstration, under the circumstances, such that

permitting withdrawal of the plea would promote fairness and justice.”

Commonwealth v. Carrasquillo, 115 A.3d 1284, 1292 (Pa. 2015); see also

Pa.R.Crim.P. 591(A) (stating that “[a]t any time before the imposition of

sentence, the court may, in its discretion, permit . . . the withdrawal of a

plea”).

      “[A] defendant’s innocence claim must be at least plausible to

demonstrate, in and of itself, a fair and just reason for presentence withdrawal

of a plea.” Carrasquillo, 115 A.3d at 1292 (citation omitted); see also

Commonwealth v. Baez, 169 A.3d 35, 39-40 (Pa. Super. 2017) (finding the

defendant’s claim of innocence implausible where he “offered a bald claim that

he was innocent that was unaccompanied by assertions that he had defenses

to the charges”).

      Further, Pennsylvania courts have “issued clear holdings that the denial

of such a motion is proper where the evidence before the court belies the

reason offered.”    Commonwealth v. Tennison, 969 A.2d 572, 578 (Pa.

Super. 2009) (citation omitted); see also Commonwealth v. Culsoir, 209

A.3d 433, 438-39 (Pa. Super. 2019) (finding no “fair and just reason” for the


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trial court to grant the defendant’s pre-sentence motion to withdraw his guilty

plea where the defendant “baldly recant[ed] his representations made under

oath to the court”); see also Baez, 169 A.3d at 41 (finding no abuse of

discretion by the trial court because the guilty plea colloquy refuted the

defendant’s position).

      Here, the trial court addressed Appellant’s claims as follows:

      Appellant failed to make a colorable demonstration that [his] claim
      of innocence was at least plausible to demonstrate a fair and just
      reason to withdraw his plea before sentencing.            The plea
      [withdrawal] would not promote justice and fairness given that
      (A) it was received by the [trial c]ourt only one day before
      sentencing, (B) the Commonwealth had already prepared its case
      and was ready for trial on the date he decided to enter into the
      open guilty plea, and (C) Appellant had numerous months before
      sentencing to withdraw his plea. Appellant filed his pro se motions
      just one day before sentencing, and the trial court’s chambers only
      received the filings approximately an hour and a half prior to the
      commencement of the SVP and sentencing hearings. The timing
      of Appellant’s pro se motions appears to this [c]ourt as a mere
      effort to delay or disrupt the [c]ourt from proceeding with
      sentencing.

Trial Ct. Suppl. Op. at 11-12.

      Additionally, one of the issues raised in the pro se motion to
      withdraw the guilty plea was that . . . the plea was made under
      coercion and extreme mental and emotional distress because
      [Appellant] was frightened and confused, and that he is not
      educated or aware in matters of applicable law.

      That claim is not credible. On the day the guilty plea was entered,
      this [c]ourt was ready to proceed to a jury trial. The jury was
      lined up outside the room. We were ready to start picking the
      jury. We put the jury in another courtroom and went through an
      extensive colloquy. And the [c]ourt has very specific recollections
      not only of the extensive colloquy, but [Appellant’s] demeanor at
      the time, which was one of repeated smiles and almost jolliness,
      to the point that the [c]ourt found it disturbing.


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      This was not a situation where he in any way looked fearful or
      coerced. And there were numerous questions and the [c]ourt
      made it very clear that we were ready to proceed to trial, the jury
      was here, and that he had no obligation -- there was no way he
      was being forced to plead guilty, and everyone was ready to
      proceed to trial.

      This was his own choice. It was made knowingly, voluntarily, and
      intelligently. It was accepted on that day as a result of the
      colloquy that was conducted, both written and oral. And the
      motion to withdraw the guilty plea is denied.

N.T. Sentencing Hr’g at 6-7.

      Based on our review of the record, we discern no abuse of discretion by

the trial court in denying Appellant’s pro se motion to withdraw his plea. See

Elia, 83 A.3d at 261. As noted by the trial court, granting Appellant’s motion

to withdraw the plea “would not promote justice and fairness.” See Trial Ct.

Supp. Op. at 11. Appellant’s bald assertion of innocence, without more, did

not establish a fair and just reason for him to withdraw his plea.          See

Carrasquillo, 115 A.3d at 1292; see also Baez, 169 A.3d at 39. Further,

the record supports the trial court’s credibility finding that Appellant was not

forced or coerced into pleading guilty.        See Tennison, 969 A.2d at 578.

Accordingly, Appellant is not entitled to relief on this issue.

                      Request for New Appointed Counsel

      Counsel next identifies Appellant’s claim that the trial court erred by

denying his pro se motion to appoint new counsel. Anders/Santiago Brief

at 32. Counsel refers to Appellant’s argument that “the trial court should not

have permitted [trial] counsel to continue with his representation at the

SVP/sentencing hearing.”       Id. at 32.      Counsel clarifies that Appellant’s


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assertion is “not that [trial counsel] was actually ineffective” but that “the trial

court erred by not replacing an attorney whose [effectiveness] had been

challenged by Appellant.”      Id. at 33.      Counsel also notes that Appellant

believes “an error took place” when the trial court failed to conduct “on-record

proceedings regarding Appellant’s claims.” Id. at 34. Nonetheless, counsel

asserts that Appellant’s argument regarding irreconcilable differences with

trial counsel are belied by the record. Id.

      “A motion for change of counsel by a defendant for whom counsel has

been appointed shall not be granted except for substantial reasons.”

Pa.R.Crim.P. 122(C). “To satisfy this standard, a defendant must demonstrate

that he has an irreconcilable difference with counsel that precludes counsel

from representing him. The decision of whether to appoint new counsel lies

within the sound discretion of the trial court.” Commonwealth v. Spotz,

756 A.2d 1139, 1150 (Pa. 2000) (citations omitted).

      We have held that a strained relationship with counsel, a difference of

opinion in trial strategy, a lack of confidence in counsel’s ability, or brevity of

pretrial communications do not necessarily establish irreconcilable differences.

See Commonwealth v. Floyd, 937 A.2d 494, 497-98, 500 (Pa. Super.

2007).

      Further, our Supreme Court has stated that “[n]either the Rules of

Criminal Procedure nor our case law requires a defendant be afforded a

hearing every time he requests a change of counsel.” Commonwealth v.


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Keaton, 45 A.3d 1050, 1071 (Pa. 2012) (concluding that the trial court did

not abuse its discretion in denying the defendant’s motion to change appointed

counsel without a hearing because the trial court found that there was no

reason that the defendant’s counsel was incapable of zealous representation).

      Here, in his pro se motion, Appellant alleged that he had irreconcilable

differences with trial counsel based on the following claims: (1) trial counsel

only visited Appellant three times in six months and failed to communicate

with Appellant’s family; (2) trial counsel did not “go over [the] case with

[Appellant] in full detail”; (3) trial counsel failed to file a suppression motion

or hire a private investigator as requested by Appellant; (4) trial counsel failed

to subpoena the previous Assistant District Attorney handling Appellant’s case,

who allegedly refused to prosecute the case due to insufficient evidence; (5)

trial counsel “failed to negotiate a plea” and instead coerced Appellant into

entering an open plea; (6) trial counsel moved for an independent psychiatric

evaluation that was not beneficial to Appellant; and (7) trial counsel failed to

inform Appellant that he was pleading guilty to false imprisonment. See Pro

Se Mot. for Ineffective/Appointment of Counsel at 1-3.

      In its Rule 1925(a) opinion, the trial court explained:

      It is the opinion of the [trial c]ourt that Appellant’s request for trial
      counsel’s withdrawal was merely an attempt to delay and interfere
      with sentencing. The tardiness of the request indicates to the
      [trial c]ourt that it was not made in good faith. Further, it was
      unduly burdensome for the [trial c]ourt to appoint new counsel on
      the eve of sentencing. This would have been highly prejudicial to
      the Commonwealth, which was ready to present facts in support
      of its recommended sentence against Appellant. Further, it would

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      have been a waste of judicial resources to postpone sentencing,
      appoint new counsel, and reschedule the imposition of sentence.

Trial Ct. Suppl. Op. at 13-14.        Further, the trial court concluded that

Appellant’s claim that trial counsel forced him to plead guilty was not credible.

See N.T. Sentencing Hr’g at 6.

      Based on our review of the record, we discern no abuse of discretion by

the trial court. See Spotz, 756 A.2d at 1150. In his pro se motion, Appellant

made several claims to support his request for new counsel. However, as

noted by the trial court, Appellant’s claims relating to trial counsel’s

representation in connection with his guilty plea were not credible. See N.T.

Sentencing Hr’g at 6.   Further, Appellant’s remaining issues, even if true, did

not rise to the level of irreconcilable differences warranting new counsel. See

Floyd, 937 A.2d at 500; see also Commonwealth v. Brown, 18 A.3d 1147,

1158 (Pa. Super. 2011) (noting that a defendant need not consent to every

tactical decision of counsel, but has authority over whether to plead guilty,

waive a jury, testify, or appeal). As such, the trial court did not err by denying

Appellant’s request without conducting a hearing. See Keaton, 45 A.3d at

1071. Therefore, Appellant is not entitled to relief on this claim.

      Next, counsel addresses the “four grounds for appeal that remain

following the entry of a guilty plea.”        Anders/Santiago Brief at 39.

Specifically, counsel refers to claims that “(1) the plea was not entered

knowing, intelligently, or voluntarily, (2) the offense did not occur in

Montgomery County and thus the court has no jurisdiction to hear the case,


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(3) the sentence is illegal as it exceeds the maximum sentence allowable by

law, [and] (4) that counsel was ineffective during his trial/plea stewardship.”

Id. at 39-40. We address each issue separately.

                            Validity of Guilty Plea

      First, counsel identifies Appellant’s earlier claim that his plea was not

knowing, voluntary, and intelligent. Id. at 41.       However, counsel explains

that Appellant’s claim is belied by his own statements during the guilty plea

colloquy. Id. Specifically, during the colloquy, Appellant “indicated that he

was pleading guilty to the charges recited by the prosecutor on the record.”

Id. Further, Appellant “indicated that he [had] not been forced, threatened,

or coerced to plead guilty” and that “he was pleading guilty [on] his own free

will.” Id. Appellant also stated that he “understood that [it] was an open

plea with no agreement on the sentence except as to the cap on the minimum

sentence of fifteen years.” Id. Finally, Appellant signed a written colloquy

and an addendum relating to his requirements as a sex offender. Id. Counsel

explains that “[t]he entire record indicates that Appellant was aware of what

he was doing, and that the plea was knowing, intelligent and voluntary.” Id.

      “A valid plea colloquy must delve into six areas: 1) the nature of the

charges, 2) the factual basis of the plea, 3) the right to a jury trial, 4) the

presumption of innocence, 5) the sentencing ranges, and 6) the plea court’s

power to deviate from any recommended sentence.”           Commonwealth v.

Reid, 117 A.3d 777, 782 (Pa. Super. 2015) (citations and quotation marks


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omitted). “To determine a defendant’s actual knowledge of the implications

and rights associated with a guilty plea, a court is free to consider the totality

of the circumstances surrounding the plea.” Commonwealth v. Allen, 732

A.2d 582, 588-89 (Pa. 1999).

       Initially, we note that by entering a guilty plea, a defendant “waives the

right to challenge on [direct] appeal all non-jurisdictional defects except the

legality of the sentence and the validity of the plea.” Commonwealth v.

Luketic, 162 A.3d 1149, 1159 (Pa. Super. 2017) (citation omitted and some

formatting altered). Further, when the defendant enters an open plea, he

retains the right to challenge the discretionary aspects of his sentence. Id.

       Although not constitutionally mandated, a proper plea colloquy ensures

that   a   defendant’s    guilty   plea   is   truly   knowing   and   voluntary.

Commonwealth v. Maddox, 300 A.2d 503, 504 (Pa. 1973). “Furthermore,

nothing in [Pa.R.Crim.P. 590] precludes the supplementation of the oral

colloquy by a written colloquy that is read, completed, and signed by the

defendant and made a part of the plea proceedings.” Commonwealth v.

Bedell, 954 A.2d 1209, 1212-13 (Pa. Super. 2008) (citation omitted); see

also Pa.R.Crim.P. 590 cmt. “A person who elects to plead guilty is bound by

the statements he makes in open court while under oath and he may not later

assert grounds for withdrawing the plea which contradict the statements he

made at his plea colloquy.” Commonwealth v. Pollard, 832 A.2d 517, 523

(Pa. Super. 2003) (citation omitted).


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     “[T]he law does not require that a defendant be pleased with the

outcome of his decision to plead guilty.     The law requires only that a

defendant’s decision to plead guilty be made knowingly, voluntarily, and

intelligently.” Commonwealth v. Jabbie, 200 A.3d 500, 506 (Pa. Super.

2018) (citation omitted).

     Although no absolute right to withdraw a guilty plea exists in
     Pennsylvania, the standard applied differs depending on whether
     the defendant seeks to withdraw the plea before or after
     sentencing. When a defendant seeks to withdraw a plea after
     sentencing, he must demonstrate prejudice on the order of
     manifest injustice. [A] defendant may withdraw his guilty plea
     after sentencing only where necessary to correct manifest
     injustice. Thus, post-sentence motions for withdrawal are subject
     to higher scrutiny since the courts strive to discourage the entry
     of guilty pleas as sentence-testing devices.

     Manifest injustice occurs when the plea is not tendered knowingly,
     intelligently, voluntarily, and understandingly. In determining
     whether a plea is valid, the court must examine the totality of
     circumstances surrounding the plea. 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.

Commonwealth v. Hart, 174 A.3d 660, 664-65 (Pa. Super. 2017) (citations

and quotation marks omitted).

     “A defendant wishing to challenge the voluntariness of a guilty plea on

direct appeal must either object during the plea colloquy or file a motion to

withdraw the plea within ten days of sentencing. Failure to employ either

measure results in waiver.” Commonwealth v. Lincoln, 72 A.3d 606, 609-

10 (Pa. Super. 2013) (citations omitted). Likewise, “a request to withdraw a

guilty plea on the grounds that it was involuntary is one of the claims that



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must be raised by motion in the trial court in order to be reviewed on direct

appeal.” Id. at 610 (citation omitted). Further, “any issues not raised in a

Rule 1925(b) statement will be deemed waived.” Commonwealth v. Hill, 16

A.3d 484, 494 (Pa. 2011) (citation omitted).

      Here, although Appellant filed a pro se motion to withdraw his plea prior

to sentencing, he did not file a timely post-sentence motion to withdraw his

plea. Further, Appellant did not raise this specific issue in his Rule 1925(b)

statement. Therefore, it is waived. See id. Nonetheless, even if not waived,

we agree with the trial court’s thorough analysis and conclusion that

Appellant’s plea was knowing, voluntary, and intelligent. See Trial Ct. Op.,

9/13/19, at 8-15. Therefore, we affirm on that basis.

                              Jurisdictional Issue

      Next, counsel notes that although Appellant is eligible to raise an issue

relating to jurisdiction, he “agreed that the criminal incidents occurred in

Montgomery County.”      Anders/Santiago Brief at 41.       Therefore, counsel

suggests that a jurisdictional claim would be meritless. Id.

      A guilty plea “constitutes a waiver of jurisdiction over the person of the

defendant.” Commonwealth. v. Little, 314 A.2d 270, 272 (Pa. 1974).

However, subject matter jurisdiction cannot be waived. Id. Challenges to a

court’s subject matter jurisdiction is a question of law and, therefore, our

standard of review is de novo. Commonwealth v. Jones, 929 A.2d 205, 211

(Pa. 2007). There are two requirements for subject matter jurisdiction as it


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relates to criminal defendants: 1) the competency of the court to hear the

case; and 2) the provision of specific and formal notice to the defendant of

the crimes charged. Id. at 211-12 (citation omitted).

      Here, the Montgomery County Court of Common Pleas, Criminal

Division, was competent to hear Appellant’s case, which involved violations of

the Pennsylvania Crimes Code occurring in Montgomery County.               See

Commonwealth v. Kohler, 811 A.2d 1046, 1050 (Pa. Super. 2002) (holding

that a county court of common pleas has jurisdiction over offenses that take

place within its borders). Further, the record reflects that Appellant received

specific and formal notice of the charges when the Commonwealth filed the

criminal complaint and criminal information and again when Appellant

participated in the guilty plea colloquy. See Criminal Compl., 9/9/13; Criminal

Information, 12/18/13; N.T. Guilty Plea Hr’g at 7-23. Finally, as noted by

counsel, Appellant specifically acknowledged that he committed the crimes in

Pottstown, Montgomery County.          See N.T. Guilty Plea Hr’g at 12-17.

Therefore, the trial court had jurisdiction over Appellant’s case, and he is not

entitled to relief on this claim.

                                Sentencing Claims

      Next, counsel identifies Appellant’s claim that his sentence was

“excessive” because “the standard guideline range called for a sentence of

seven to eight and one-half years and the imposed sentence greatly exceed[s]

that number.” Anders/Santiago Brief at 43. Counsel notes that this issue


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relates to the discretionary aspects of Appellant’s sentence. Id. However,

counsel explains that Appellant waived this issue by failing to raise it in a post-

sentence motion. Id.

      Initially, we note that an allegation that a sentence is excessive is a

challenge to the discretionary aspects of sentencing. See Commonwealth

v. Ahmad, 961 A.2d 884, 886 (Pa. Super. 2008).

      Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to review as of right. An appellant challenging
      the discretionary aspects of his sentence must invoke this Court’s
      jurisdiction by satisfying a four-part test:

         We 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 . . . ; (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 from is not
         appropriate under the Sentencing Code, 42 Pa.C.S.[ ] §
         9781(b).

Commonwealth v. Tukhi, 149 A.3d 881, 888 (Pa. Super. 2016) (citation

omitted).   “Issues not presented to the sentencing court are waived and

cannot be raised for the first time on appeal.” Commonwealth v. Malovich,

903 A.2d 1247, 1251 (Pa. Super. 2006) (citation omitted).

      In Tukhi, counsel filed an Anders/Santiago brief, which raised an issue

relating to the discretionary aspects of the defendant’s sentence. Tukhi, 149

A.3d at 888.    The Tukhi Court held that the defendant waived the issue

because he failed to preserve it at the sentencing hearing or in a post-sentence

motion. Id.


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      Here, like the defendant in Tukhi, Appellant failed to preserve any

sentencing claims before the trial court. Therefore, as noted by counsel, any

such claims are waived. Id.

      Counsel also identifies a claim relating to the legality of Appellant’s

sentence. Anders/Santiago Brief at 42. However, counsel states that “the

sentences imposed on the various counts to which Appellant pled guilty were

all within the statutory maximums permitted by law.” Id. Further, counsel

explains that the trial court’s “minimum sentence imposed did not exceed the

fifteen year minimum that had been negotiated.”      Id.   Therefore, counsel

suggests that Appellant’s claim is meritless.

      “If no statutory authorization exists for a particular sentence, that

sentence is illegal and subject to correction.” Commonwealth v. Infante,

63 A.3d 358, 363 (Pa. Super. 2013) (citation omitted). Issues relating to the

legality of a sentence are questions of law. Commonwealth v. Diamond,

945 A.2d 252, 256 (Pa. Super. 2008). Therefore, our “standard of review is

de novo and our scope of review is plenary.” Id. (citation omitted).

      Section 1103 of the Pennsylvania Crimes Code provides, in relevant

part, as follows:

      Except as provided in 42 Pa.C.S. § 9714 (relating to sentences for
      second and subsequent offenses), a person who has been
      convicted of a felony may be sentenced to imprisonment as
      follows:

         (1) In the case of a felony of the first degree, for a term
         which shall be fixed by the court at not more than 20 years.


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         (2) In the case of a felony of the second degree, for a term
         which shall be fixed by the court at not more than ten years.

         (3) In the case of a felony of the third degree, for a term
         which shall be fixed by the court at not more than seven
         years.

18 Pa.C.S. § 1103.

      Instantly, the trial court sentenced Appellant to ten to twenty years’

imprisonment for rape and two to twenty years’ imprisonment for IDSI, both

of which are first-degree felonies. See N.T. Sentencing Hr’g at 59. The trial

court also sentenced Appellant to two to ten years’ imprisonment for false

imprisonment, a second-degree felony. Id. Finally, the trial court sentenced

Appellant to one to seven years’ imprisonment for corruption of minors, a

third-degree felony.   Id.   These sentences do not exceed the respective

statutory maximums for felonies of the first, second, or third degree. See 18

Pa.C.S. § 1103(1)-(3).       Therefore, the sentencing court had statutory

authority to impose Appellant’s sentence, and Appellant is not entitled to relief

on this claim.


                             Appellant’s SVP Status

      Counsel also raises an issue relating to Appellant’s SVP status.

Anders/Santiago Brief at 45.           Relying on this Court’s decision in

Commonwealth v. Butler, 173 A.3d 1212, 1213 (Pa. Super. 2017), counsel

notes that Appellant may have a claim that his SVP hearing was

unconstitutional. Id. However, while Appellant’s appeal was pending, our

Supreme Court issued its decision in Commonwealth v. Butler, ___ A.3d

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___, 2020 WL 1466299, at *1 (Pa. filed Mar. 26, 2020), holding that the

“registration, notification, and counseling” requirements applicable to SVPs

does “not constitute criminal punishment” and, as such, the “procedure for

designating individuals as SVPs . . . remains constitutionally permissible”).

Therefore, because it is clear that Appellant is not entitled to relief based on

the constitutionality of his SVP status hearing, we decline to address this issue

on appeal.


                            Ineffectiveness Claims

      Lastly, counsel notes that Appellant “may be able to make a claim under

the PCRA as to the ineffectiveness of first appellate counsel [(Attorney Wray)]

for failing to preserve [Appellant’s] sentencing claims.”     Anders/Santiago

Brief at 44. However, counsel notes that any claims relating to ineffective

assistance of trial counsel or prior appellate counsel should be raised

“following the conclusion of the instant appeal in a properly filed [PCRA

petition].” Id. at 40.

      Generally, a criminal defendant may not assert claims of ineffective

assistance of counsel on direct appeal. See Commonwealth v. Holmes, 79

A.3d 562, 577-80 (Pa. 2013). Instead, such claims are to be deferred to PCRA

review. Id. However, our Supreme Court has recognized three exceptions to

the general rule. In Holmes, the Supreme Court held that a trial court has

discretion to address ineffectiveness claims on direct review in cases where

(1)   there   are   extraordinary   circumstances    in   which   trial   counsel’s



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ineffectiveness is apparent from the record and “meritorious to the extent that

immediate consideration best serves the interests of justice[;]” or (2) “there

is good cause shown” and the defendant knowingly and expressly waives his

entitlement to seek subsequent PCRA review of his conviction and sentence.

Holmes, 79 A.3d at 599. More recently, our Supreme Court adopted a third

exception, which requires “trial courts to address claims challenging trial

counsel’s performance where the defendant is statutorily precluded from

obtaining subsequent PCRA review.” Commonwealth v. Delgros, 183 A.3d

352, 361 (Pa. 2018).

      Here, the record does not indicate that extraordinary circumstances

exist, or that Appellant waived his right to PCRA review. See Holmes, 79

A.3d at 599. Further, Appellant is not statutorily barred from seeking PCRA

relief. See Delgros, 183 A.3d at 361. Because none of the exceptions apply,

Appellant’s ineffectiveness claims cannot be considered on direct appeal.

      Moreover, our independent review of the record does not reveal any

additional, non-frivolous issues preserved in this appeal. See Flowers, 113

A.3d at 1250. Accordingly, we affirm the judgment of sentence and grant

counsel’s petition to withdraw.

      Judgment of sentence affirmed. Petition to withdraw granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/1/20




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