J-S32022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                             Appellee

                       v.

KATHRYN J. GARZA

                             Appellant                 No. 2664 EDA 2015


              Appeal from the Judgment of Sentence July 14, 2015
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0000529-2014


BEFORE: BOWES, J., MUNDY, J., and PLATT, J.*

MEMORANDUM BY MUNDY, J.:                                 FILED JUNE 21, 2016

        Appellant, Kathryn J. Garza, appeals from the July 14, 2015 judgment

of sentence of time served to 23 months’ imprisonment, following a plea of

nolo contendre to aggravated assault.1 With this appeal, Appellant’s counsel

has filed a petition to withdraw and an Anders2 brief, stating that the appeal

is wholly frivolous.        After careful review, we affirm and grant counsel’s

petition to withdraw.



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 2702(a)(3).
2
    Anders v. California, 386 U.S. 738 (1967).
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       The trial court has set forth the relevant factual and procedural history

as follows.

                     On November 5, 2013, a manager of a retail
              store contacted the Nether Providence Police
              Department advising that a white female, later
              identified as [Appellant], had loitered in the store for
              over two hours and then locked herself in the
              bathroom, refusing to come out.          Three officers
              arrived and encountered [Appellant], who began
              thrashing, kicking and attempting to bite them.
              They arrested her and charged her with various
              offenses.

                    Her court-appointed counsel petitioned that
              she be found incompetent to stand trial. On April 2,
              2014, th[e trial c]ourt concluded that she was,
              indeed, incompetent, so she was committed to the
              Norristown State Hospital for evaluation and
              treatment.

                    On July 14, 2015, [Appellant] appeared before
              th[e trial c]ourt and, after being found competent,
              entered a negotiated plea of nolo contendre to a
              charge of aggravated assault. Pursuant to the terms
              of the agreement, th[e trial c]ourt sentenced her to a
              term of confinement of time served to 23 months.

Trial Court Opinion, 10/9/15, at 1.

       Appellant did not file a post-sentence motion.      On August 13, 2015,

Appellant filed a timely notice of appeal.3

       In the Anders Brief, counsel has raised the following issue for our

review.
____________________________________________


3
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925. Counsel’s Rule 1925 statement noted its intent
to file an Anders brief. See generally Pa.R.A.P. 1925(c)(4).



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              Did the trial [c]ourt err in accepting the plea of nolo
              contendere because the plea was not voluntarily and
              understandingly tendered on the record?

Anders Brief at 3.

      “When presented with an Anders brief, this Court may not review the

merits of the underlying issues without first passing on the request to

withdraw.”     Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.

2010) (citation omitted). Additionally, an Anders brief shall comply with the

requirements set forth by our Supreme Court in Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009).

                     [W]e 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.

Id. at 361.

      Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.

2005), and its progeny, counsel seeking to withdraw on direct appeal must

also meet the following obligations to his or her client.

              Counsel also must provide a copy of the Anders
              brief to his client. Attending the brief must be a
              letter that advises the client of [her] right to: (1)
              retain new counsel to pursue the appeal; (2)

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            proceed pro se on appeal; or (3) raise any points
            that the appellant deems worthy of the court[’]s
            attention in addition to the points raised by counsel
            in the Anders brief.

Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (internal

quotation marks and citation omitted).     “Once 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), quoting

Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004). Further,

“this Court must 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)

(footnote and citation omitted).

      In this appeal, we conclude that counsel’s Anders brief complies with

the requirements of Santiago. First, counsel has provided a procedural and

factual summary of the case with references to the record. Anders Brief at

4-5. Second, counsel advances relevant portions of the record that arguably

support Appellant’s claims on appeal. Id. at 6-8. Third, counsel concluded,

“[b]ased on the foregoing argument, counsel believes this appeal is

frivolous.” Id. at 9. Lastly, counsel has complied with the requirements set

forth in Millisock. See Letter from Counsel to Appellant, dated 1/25/16. As




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a result, we proceed to conduct an independent review to ascertain if the

appeal is indeed wholly frivolous.

      “Initially, we note that, in terms of its effect upon a case, a plea of

nolo contendere is treated the same as a guilty plea.” Commonwealth v.

Miller, 748 A.2d 733, 735 (Pa. Super. 2000).        “Settled Pennsylvania law

makes clear that by entering a guilty plea, the defendant waives [her] right

to challenge on direct appeal all nonjurisdictional defects except the legality

of the sentence and the validity of the plea.” Commonwealth v. Lincoln,

72 A.3d 606, 609 (Pa. Super. 2013) (citation omitted), appeal denied, 87

A.3d 319 (Pa. 2014).     “Our law presumes that a defendant who enters a

guilty plea was aware of what he was doing. He bears the burden of proving

otherwise.” Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super.

2011) (citation omitted). “[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. Muhammad, 794 A.2d

378, 382 (Pa. Super. 2002).

                  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.
            Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i).        Failure to
            employ      either  measure     results   in     waiver.
            Historically, Pennsylvania courts adhere to this
            waiver principle because [i]t is for the court which
            accepted the plea to consider and correct, in the first
            instance, any error which may have been committed.




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Lincoln, supra at 609-610 (internal quotation marks and some citations

omitted).

        Instantly, our review of the record reveals that Appellant did not

object to her plea prior to or during the July 14, 2015 plea and sentencing

hearing. Further, Appellant did not file a post-sentence motion to withdraw

her plea.    As noted above, in order to preserve an issue related to the

validity of a guilty plea, a defendant must either object during the colloquy

or otherwise raise the issue at the guilty plea hearing, the sentencing

hearing, or through a post-sentence motion.        Lincoln, supra; accord

Commonwealth v. Tareila, 895 A.2d 1266, 1270 n.3 (Pa. Super. 2006);

see also Pa.R.A.P. 302(a) (stating, “[i]ssues not raised in the lower court

are waived and cannot be raised for the first time on appeal[]”).

Accordingly, Appellant has waived any challenge to the validity of her guilty

plea.

        Based on the foregoing, we conclude Appellant’s sole issue on appeal

is waived for lack of preservation.     In addition, we have reviewed the

certified record consistent with Flowers and have discovered no additional

arguably meritorious issues.    Accordingly, we grant counsel’s petition to

withdraw and affirm the trial court’s July 14, 2015 judgment of sentence.

        Judgment of sentence affirmed.     Petition to withdraw as counsel

granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/21/2016




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