J-S65021-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JULIE CUTTLER,

                            Appellant                 No. 39 WDA 2016


         Appeal from the Judgment of Sentence of December 10, 2015
              In the Court of Common Pleas of Crawford County
             Criminal Division at No(s): CP-20-CR-0000539-2015


BEFORE: LAZARUS, OLSON AND PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                         FILED OCTOBER 28, 2016

        Appellant, Julie Cuttler, appeals from the judgment of sentence

entered on December 10, 2015, following her nolo contendere plea to retail

theft.1 In this direct appeal, Appellant’s court-appointed counsel filed both a

petition to withdraw as counsel and an accompanying brief pursuant to

Anders v. California, 386 U.S. 738 (1967) and Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009). We conclude that Appellant’s counsel

complied with the procedural requirements necessary for withdrawal.

Moreover, after independently reviewing the record, we conclude that the

instant appeal is wholly frivolous. We therefore grant counsel’s petition to

withdraw and affirm Appellant’s judgment of sentence.

____________________________________________


1
    18 Pa.C.S.A. § 3929.



*Retired Senior Judge assigned to the Superior Court.
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       We briefly summarize the facts and procedural history of this case as

follows. On November 5, 2015, Appellant pled nolo contendere to one count

of retail theft. The plea resulted from an incident at the Walmart in Vernon

Township, Pennsylvania on April 20, 2015.        Video surveillance captured

Appellant checking out items in a self-service line. However, Appellant did

not scan two bags of dog food, which were still in her cart.              The

Commonwealth charged Appellant with retail theft as a second-degree

misdemeanor. On November 5, 2015, Appellant pled nolo contendere to the

offense.     Appellant had a prior summary retail theft conviction.        On

December 10, 2015, the trial court sentenced Appellant to two years of

probation, a fine of $300.00, and $42.94 in restitution to Walmart.      This

timely appeal resulted.2

       “When presented with an Anders brief, [we] 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), citing Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.
____________________________________________


2
   Counsel filed a timely statement of intent to file an Anders brief pursuant
to Pa.R.A.P. 1925(c)(4). On February 17, 2016, the trial court filed an
opinion pursuant to Pa.R.A.P. 1925(a). The trial court determined that at
the “hearing appointing appellate counsel, [] Appellant advised [the c]ourt
that she [was] appealing her judgment of sentence because she [was]
innocent of the crime of retail theft, graded as a second degree
misdemeanor, to which she entered a plea of nolo contendere.” Trial Court
Opinion, 2/17/2016, at 1. The trial court ultimately denied Appellant relief,
relying upon its reasoning as set forth in its sentencing order for accepting
Appellant’s plea. Id.



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2007) (en banc). We must first determine whether counsel completed the

necessary     procedural   requirements     for   withdrawing    as   counsel.

Commonwealth v. Washington, 63 A.3d 797, 800 (Pa. Super. 2013).

Court-appointed counsel must satisfy certain requirements to withdraw

under Anders.

       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; second,
       he must file a brief referring to any issues in the record of
       arguable merit; and third, he must furnish a copy of the brief to
       the [appellant] and advise [her] of [her] right to retain new
       counsel or to [her]self raise any additional points [s]he deems
       worthy of [our] attention.

Commonwealth v. Martuscelli, 54 A.3d 940, 947 (Pa. Super. 2012),

quoting Santiago, 978 A.2d at 361. In the submitted Anders brief, 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.

Washington, 63 A.3d at 800, quoting Santiago, 978 A.2d at 361.




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       If counsel meets these requirements, it is then our responsibility “to

make a full examination of the proceedings and make an independent

judgment to decide whether the appeal is wholly frivolous.” Santiago, 978

A.2d at 355 n.5, citing Commonwealth v. McClendon, 434 A.2d 1185,

1187 (Pa. 1981).         Counsel will be permitted to withdraw if both the

procedural and substantive requirements are satisfied.               In addition, we

“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 the case at bar, we find counsel has

sufficiently met all the above requirements.3                We now turn to an

examination of the Anders brief.

       While the statement of the question involved asks this Court to find

the appeal frivolous and to allow counsel to withdraw, counsel’s Anders

brief refers exclusively to the validity of Appellant’s nolo contendere plea,

recognizing that Appellant “was not certain if she wanted to plea[d.]”

Appellant’s Brief at 4, 7. The Anders brief also cites law solely pertaining to
____________________________________________


3
  Appellant has not responded to the petition to withdraw as counsel. Upon
review, we conclude that counsel complied with the requirements of
Santiago: (1) counsel provided the procedural history and facts; (2)
counsel did not expressly identify an issue that arguably supported the
appeal, but cited law and facts regarding the validity of the plea; (3) counsel
concluded there were “no meritorious issues,” but we read that as the
appeal is “wholly frivolous;” and (4) counsel explained why the appeal is
frivolous.



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tendering a knowing, intelligent, and voluntary plea. Id. at 7-9. Because

Appellant also advised the court that she was appealing her judgment of

sentence because she was innocent, we conclude that a challenge to the

validity of Appellant’s plea is the crux of this appeal.

       This Court has previously determined:

        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. Additionally, a
        written plea colloquy that is read, completed and signed by
        the defendant and made part of the record may serve as
        the defendant's plea colloquy when supplemented by an
        oral, on-the-record examination.

        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 [her] plea and that [s]he knowingly
        and voluntarily decided to enter the plea.          Our law
        presumes that a defendant who enters a guilty plea was
        aware of what [s]he was doing. [S]he bears the burden of
        proving otherwise. The entry of a negotiated plea is a
        strong indicator of the voluntariness of the plea. Moreover,
        the law does not require that the defendant be pleased with
        the outcome of [her] decision to enter a plea of guilty: All
        that is required is that [her] decision to plead guilty be
        knowingly, voluntarily and intelligently made.

Commonwealth v. Reid, 117 A.3d 777, 782–783 (Pa. Super. 2015)

(internal citations, quotations and original brackets omitted).

      Here, while there is no written colloquy contained in the certified

record, the trial court conducted an on-the-record oral colloquy and

examined the six required areas of inquiry, as delineated above, prior to


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accepting Appellant’s plea.    N.T., 11/5/2015, at 9-11.       Upon review, we

conclude Appellant had a full understanding of the nature and consequences

of her plea and knowingly and voluntarily decided to enter it.     Accordingly, a

challenge to the validity of her plea does not entitle Appellant to relief.

      Moreover, after an independent review of the entire record, we see

nothing that might arguably support this appeal. The appeal is, therefore,

wholly frivolous.    Accordingly, we affirm Appellant’s judgment of sentence

and grant counsel’s petition for leave to withdraw appearance.

      Petition for leave to withdraw as counsel granted.            Judgment of

sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/28/2016




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