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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                         :
RUSSELL DABNEY,                          :          No. 393 EDA 2019
                                         :
                        Appellant        :


    Appeal from the Judgment of Sentence Entered December 10, 2018,
             in the Court of Common Pleas of Delaware County
              Criminal Division at No. CP-23-CR-0001894-2018


BEFORE: BENDER, P.J.E., LAZARUS, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED JULY 11, 2019

      Russell Dabney appeals from the December 10, 2018 judgment of

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

entered a negotiated guilty plea to one count each of receiving stolen property,

possession of drug paraphernalia, and aggravated harassment by a prisoner.1

The trial court imposed an aggregate sentence of 15 to 30 months of

incarceration, followed by one year of probation. Douglas L. Smith, Esq., has

filed an Anders brief,2 with an accompanying petition, alleging that the appeal




1 18 Pa.C.S.A. §§ 3925(a), 35 P.S. § 780-113(a)(32), and 18 Pa.C.S.A.
§ 2703.1, respectively.

2See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009); Commonwealth v. McClendon, 434
A.2d 1185 (Pa. 1981).
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is frivolous. After careful review, we grant counsel’s petition to withdraw and

affirm the judgment of sentence.

      The trial court set forth the following:

            The incident that gave rise to [appellant’s] conviction
            took place on January 24, 2018. While driving a stolen
            motor vehicle[, appellant] led Darby Borough police
            officers on a lengthy vehicle chase. After [appellant]
            brought the stolen vehicle to a stop he fled on foot.
            He was eventually taken into custody and a stolen
            IPhone and drug paraphernalia were found in his
            possession. [Appellant] resisted arrest. At police
            headquarters EMS personnel from the Darby Fire
            Company were called to evaluate [appellant’s]
            condition. [Appellant] berated police officers,
            screamed obscenities and spit on an officer more than
            once. Eventually he was transported to Mercy
            Fitzgerald Hospital where he was treated for injuries
            that he sustained during the course of the foregoing
            incident.[Footnote 1]

                  [Footnote 1] The parties stipulated that
                  the facts set forth in the Affidavit of
                  Probable Cause constituted a sufficient
                  factual basis for the plea.

            [Appellant] pled guilty to [the aforementioned crimes
            and the trial court imposed the aforementioned
            sentence.] A motion to withdraw the guilty plea was
            filed post-sentence. The post-sentence motion was
            denied on January 9, 2019 and a timely Notice of
            Appeal was filed[].

            In response to an Order directing [appellant] to file a
            Concise Statement of Errors Complained of on Appeal
            [pursuant to Pa.R.A.P. 1925(b),] appellate counsel
            has stated his intention to file an Anders brief with
            the Superior Court.

Trial court opinion, 2/25/19 at 1-2 (additional footnotes omitted).




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      The trial court then filed a Rule 1925(a) opinion wherein it concluded

that following a review of the record and counsel’s statement of intention to

file an Anders brief, “further exposition regarding [appellant’s] conviction and

the sentence imposed is unnecessary.” (Id. at 2.)

      To withdraw under Anders, court-appointed counsel must satisfy

certain technical requirements.    First, counsel must “petition the court for

leave to withdraw and state that after making a conscientious examination of

the record, he has determined that the appeal is frivolous.” Commonwealth

v. Martuscelli, 54 A.3d 940, 947 (Pa.Super. 2012), quoting Santiago, 978

A.2d at 361. Second, counsel must file an Anders brief, in which counsel:

            (1) provide[s] a summary of the procedural history
            and facts, with citations to the record; (2) refer[s] to
            anything in the record that counsel believes arguably
            supports the appeal; (3) set[s] forth counsel’s
            conclusion that the appeal is frivolous; and
            (4) state[s] 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.        With respect to the briefing requirements,

“[n]either Anders nor McClendon requires that counsel’s brief provide an

argument of any sort, let alone the type of 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.”

Santiago, 978 A.2d at 359, 360. Finally, counsel must furnish a copy of the

Anders brief to his client and “advise[] him of his right to retain new counsel,


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proceed pro se or raise any additional points that he deems worthy of the

court’s attention, and attach[] to the Anders petition a copy of the letter sent

to the client.” Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa.Super.

2010) (citation omitted). “[If] counsel has satisfied the above requirements,

it is then this Court’s duty to conduct its own review of the trial court’s

proceedings and render an independent judgment as to whether the appeal

is, in fact, wholly frivolous.” Commonwealth v. Goodwin, 928 A.2d 287,

291 (Pa.Super. 2007) (en banc) (quotation marks and quotation omitted).

        Our review of Attorney Smith’s petition to withdraw, supporting

documentation, and Anders brief reveals that he has substantially complied

with all of the foregoing requirements. We note that counsel also furnished a

copy of the brief to appellant, advised him of his right to retain new counsel,

proceed pro se, and/or raise any additional points that he deems worthy of

this court’s attention,3 and attached to his petition to withdraw a copy of the

letter he sent to appellant as required under Commonwealth v. Millisock,

873 A.2d 748, 751 (Pa.Super. 2005). See Daniels, 999 A.2d at 594 (holding

that “[w]hile the Supreme Court in Santiago set forth the new requirements

for an Anders brief, which are quoted above, the holding did not abrogate the

notice requirements set forth in Millisock that remain binding legal

precedent.”). As Attorney Smith has complied with all of the requirements set

forth above, we conclude that counsel has satisfied the procedural


3   Appellant did not file a response.


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requirements of Anders. We, therefore, proceed to conduct an independent

review to ascertain whether the appeal is indeed wholly frivolous.

        Attorney Smith raises the following issues in the Anders brief:4

              [1.]   Whether [appellant] entered a plea of guilty that
                     was a knowing, voluntary and intelligent plea of
                     guilty?

              [2.]   Whether the aggregate sentence of 15-30
                     months [of] incarceration followed by 1 year
                     [of] consecutive     probation imposed on
                     [appellant] is harsh and excessive under the
                     circumstances?

Anders brief at 3 (full italics omitted).

        In considering the validity of a guilty plea colloquy, “[t]he 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. Prendes, 97 A.3d 337, 352 (Pa.Super. 2014) (citations

omitted), appeal denied, 105 A.3d 736 (Pa. 2014). Pursuant to Rule 590,

the sentencing court should inquire whether the defendant understands,

among other things, “the nature of the charges to which he or she is pleading

guilty[,]” and “the permissible range of sentences and/or fines” possible.

Pa.R.Crim.P. 590, Comment.             “[N]othing in   the   rule   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


4   We have reordered appellant’s issues for ease of disposition.


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proceedings.”    Commonwealth v. Bedell, 954 A.2d 1209, 1212-1213

(Pa.Super. 2008) (citation omitted), appeal denied, 964 A.2d 893 (Pa.

2009).

      Thereafter,

            [t]he 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.
            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.

Prendes, 97 A.3d at 352 (citations omitted). Accordingly, even if there is an

omission in the oral plea colloquy, “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. Yeomans, 24 A.3d 1044, 1047 (Pa.Super. 2011)

(citation omitted).

      Additionally, “a defendant is bound by the statements which he makes

during his plea colloquy.” Commonwealth v. Barnes, 687 A.2d 1163, 1167

(Pa. 1997) (citations omitted). As such, a defendant “may not assert grounds

for withdrawing the plea that contradict statements made when he pled

guilty,” and he cannot recant the representations he made in court when he

entered his guilty plea. Id. (citation omitted). Moreover, the law does not

require that a defendant be pleased with the outcome of his decision to plead



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guilty. The law only requires that a defendant’s decision to plead guilty be

made knowingly, voluntarily, and intelligently.       See Commonwealth v.

Moser, 921 A.2d 526, 528-529 (Pa.Super. 2007).

      Here, the record reflects that appellant read, completed, and signed a

thorough written guilty plea colloquy form, which is part of the certified record.

(Written guilty plea statement, 12/10/18.) On that form, appellant affirmed,

in writing, among other things, (i) that he understood the charges filed against

him and the maximum sentences that could be imposed for those crimes;

(ii) that he fully discussed the charges and possible defenses with his

attorney; (iii) that he was fully satisfied with his attorney’s representation and

advice; (iv) that his decision to plead guilty was his own decision; (v) that

no one used any pressure, force, or threats against him to induce him to plead

guilty; (vi) that no promises were made to induce his guilty plea; (vii) that he

committed the crimes to which he pled guilty; and (viii) that he had enough

time to fully discuss his case and decision to plead guilty with his lawyer and

that he understood and agreed with everything contained in the guilty plea

statement.5 (Id.)

      The record further reflects that the trial court conducted an oral guilty

plea colloquy. (Notes of testimony, 12/10/18.) Appellant acknowledged that

he was given sufficient time and opportunity to review the guilty plea




5 We note that appellant also executed a statement of post-sentence rights.
(Appellant’s statement of post-sentence rights, 12/10/18.)


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statement. (Id. at 9.) Appellant further acknowledged that he understood

everything in the guilty plea statement, that he initialed the 29 subparagraphs

contained in the statement, and that he executed the statement.          (Id.)

Appellant affirmed that no one forced or pressured him to accept the plea

agreement. (Id. at 10.) Appellant also affirmed that he was not under the

influence of drugs, alcohol, or any substance that would prevent him from

understanding the terms of the plea agreement.              (Id.)    Appellant

acknowledged that he understood the Commonwealth’s burden of proof but

desired to give up his right to trial and enter a guilty plea. (Id.) Appellant

declined the opportunity to ask his attorney any additional questions prior to

entering his guilty plea. (Id.)

      After thoroughly reviewing the record, we conclude that the totality of

the circumstances surrounding appellant’s entry of his negotiated guilty plea

discloses that appellant fully understood the nature and consequences of his

plea and that he knowingly and voluntarily decided to enter the plea.

      Appellant next challenges the discretionary aspects of his sentence.

            Challenges to the discretionary aspects of sentencing
            do not entitle an appellant to review as of right.
            Commonwealth v. Sierra, [752 A.2d 910, 912
            (Pa.Super. 2000)].      An appellant challenging the
            discretionary aspects of his sentence must invoke this
            Court’s jurisdiction by satisfying a four-part test:

                  [W]e 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


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                  sentencing or in a motion to reconsider
                  and modify sentence, see Pa.R.Crim.P.
                  [720]; (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.A. § 9781(b).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super. 2010) (citation

omitted; brackets in original).

      Here, appellant filed a timely notice of appeal and included a

Pa.R.A.P. 2119(f) statement in his brief.      In his post-sentence motion,

appellant only challenged the validity of his plea.       (Appellant’s motion

challenging validity of guilty plea, 12/17/18.) On appeal, however, appellant

claims his sentence is harsh and excessive.        (Appellant’s brief at 5-6.)

Because appellant did not give the trial court the opportunity to reconsider or

modify his sentence on the basis that the sentence was harsh and excessive,

appellant failed to properly preserve this specific discretionary sentencing

challenge for appeal.     See Commonwealth v. Mann, 820 A.2d 788

(Pa.Super. 2003) (stating issues that challenge discretionary aspects of

sentencing are generally waived if they are not raised during sentencing

proceedings or in post-sentence motion); accord Commonwealth v.

Lamonda, 52 A.3d 365, 371 (Pa.Super. 2012). See also Commonwealth

v. Reeves, 778 A.2d 691, 692-693 (Pa.Super. 2001) (finding waiver where

appellant “did not give the sentencing judge an opportunity to reconsider or

modify sentence” on any of the bases that appellant currently argues on


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appeal); Pa.R.A.P. 302(a) (“[i]ssues not raised in the lower court are waived

and cannot be raised for the first time on appeal”).

      Nevertheless, we will address this challenge because appointed counsel

has filed an Anders brief and a petition to withdraw. See Commonwealth

v. Lilley, 978 A.2d 995, 998 (Pa.Super. 2009) (addressing the appellant’s

discretionary sentencing challenge in light of counsel’s petition to withdraw,

despite the fact that his Pa.R.A.P. 2119(f) statement failed to cite what

particular provision of the Sentencing Code or what specific fundamental norm

the appellant’s sentence allegedly violated), citing Commonwealth v.

Hernandez, 783 A.2d 784, 787 (Pa.Super. 2001) (concluding that Anders

requires review of issues otherwise waived on appeal).

      Here, the issue presented in the Anders brief is that appellant’s

sentence is harsh and excessive. (Appellant’s brief at 5-6.) It is well settled,

however, that upon entry of a negotiated plea, “a defendant generally waives

all defects and defenses except those concerning the validity of the plea, the

jurisdiction of the trial court, and the legality of the sentence imposed.”

Commonwealth v. Boyd, 835 A.2d 812, 816 (Pa.Super. 2003) (citation and

quotation omitted).    “One who pleads guilty and receives a negotiated

sentence may not then seek discretionary review of that sentence.”

Commonwealth v. O’Malley, 957 A.2d 1265, 1267 (Pa.Super. 2008)

(citation omitted). Because appellant entered a guilty plea and received a

negotiated sentence, he may not seek discretionary review of that sentence.



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     We conclude that the record supports Attorney Smith’s assessment that

appellant’s appeal is wholly frivolous. Moreover, our independent review of

the entire record reveals no additional non-frivolous claims. Therefore, we

grant counsel’s petition to withdraw and affirm appellant’s December 10, 2018

judgment of sentence.

     Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 7/11/19




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