J-S85034-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
           v.                            :
                                         :
JOHN FABIO MARTINEZ,                     :
                                         :
                   Appellant             :          No. 1511 EDA 2015

           Appeal from the Judgment of Sentence April 24, 2015
           in the Court of Common Pleas of Philadelphia County,
            Criminal Division, No(s): CP-51-CR-0007483-2014

BEFORE: PANELLA, RANSOM and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                      FILED January 20, 2017

     John Fabio Martinez (“Martinez”) appeals from the judgment of

sentence imposed following his negotiated guilty pleas to one count each of

criminal mischief and stalking, and two counts of contempt of order or

agreement.1     See 18 Pa.C.S.A. §§ 3304(a)(5), 2709.1(a)(1); 23 Pa.C.S.A.

§ 6114(a).       Additionally, Jill Heilman, Esquire (“Attorney Heilman”),

Martinez’s counsel, has filed a Petition to Withdraw as counsel and an

accompanying brief pursuant to Anders v. California, 386 U.S. 738, 744

(1967).   We grant Attorney Heilman’s Petition to Withdraw, and affirm

Martinez’s judgment of sentence.




1
  Martinez was charged on three separate dockets. Martinez pled guilty to
criminal mischief and one count of contempt for violation of order or
agreement on January 30, 2015. Sentencing was deferred for consolidation.
At the sentencing hearing on April 24, 2015, Martinez pled guilty to the
remaining charges.
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      In its Opinion, the trial court set forth the relevant facts underlying

this appeal as follows:

      On April 27, 2014, at approximately 4:30 a.m.[,] in the area of
      303 Magee Ave[nue] in the City and County of Philadelphia, []
      Patricia Martinez [(“Patricia”)] observed [Martinez] outside her
      home standing next to her car. When [Patricia] later inspected
      her car, all four tires had been slashed and the exterior of the
      vehicle had been keyed. At the time, there was an active
      Protection from Abuse ([“]PFA[”]) order in place against
      [Martinez].

      On December 25, 2014, … [Patricia] observed [Martinez] walking
      around her home ominously. She later received [F]acebook
      messages from [Martinez] stating that he was going to kill
      himself. On that date, there was a PFA order in place against
      [Martinez].

      On January 28, 2015, [Patricia] again saw [Martinez] outside her
      home…. She asked him to leave and went inside her home.
      [Martinez] refused to leave and continued banging on the rear
      door of the home. Eventually, [Martinez] shattered the glass
      door.

Trial Court Opinion, 12/18/15, at 1-2.

      On April 24, 2015, Martinez was sentenced to a total of four years of

probation—three years of reporting probation, followed by one year of non-

reporting probation, if Martinez completes the first three years without

incident. Martinez was also ordered to pay $2,163 in restitution.

      Martinez, through counsel, filed a timely Notice of Appeal and a court-

ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on

appeal.   Martinez subsequently filed a Supplemental Concise Statement.




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Attorney Heilman filed a Statement of Intent to File an Anders/McClendon2

Brief seeking to withdraw as counsel.

       In the Anders Brief, the following questions are presented for our

review:

       I. Were [Martinez’s] guilty pleas in this matter made knowingly
       and voluntarily?

       II. Was [Martinez’s] total sentence of 4 years [of] probation
       imposed by the lower court illegal or excessive?

Anders Brief at 3. Martinez did not file a separate pro se brief, nor did he

retain alternate counsel for this appeal.

       We must first determine whether Attorney Heilman has complied with

the dictates of Anders in petitioning to withdraw from representation. See

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

banc) (stating that “[w]hen 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.”) (citation omitted). Pursuant to

Anders, when an attorney believes that an appeal is frivolous and wishes to

withdraw as counsel, he or she must

       (1) petition the court for leave to withdraw stating that after
       making a conscientious examination of the recording and
       interviewing the defendant, counsel has determined the appeal
       would be frivolous, (2) file a brief referring to any issues in the
       record of arguable merit, and (3) furnish a copy of the brief to
       defendant and advise him of his right to retain new counsel or to
       raise any additional points that he deems worthy of the court’s


2
    Commonwealth v. McClendon, 424 A.2d 1185 (Pa. 1981).


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      attention. The determination of whether the appeal is frivolous
      remains with the [appellate] court.

Commonwealth v. Burwell, 42 A.2d 1077, 1083 (Pa. Super. 2012)

(citations omitted).

      Additionally, the Pennsylvania Supreme Court has determined that a

proper Anders brief 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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

      Here, Attorney Heilman has complied with the requirements set forth

in Anders by indicating that she has conscientiously examined the record

and determined that an appeal would be frivolous.              Further, Attorney

Heilman provided a letter to Martinez, informing him of Attorney Heilman’s

intention to withdraw and advising Martinez of his rights to retain counsel,

proceed pro se, and file additional claims.       Finally, Attorney Heilman’s

Anders Brief meets the standards set forth in Santiago. Attorney Heilman

provided a factual summary of Martinez’s case, with support for Attorney

Heilman’s conclusions that Martinez’s guilty pleas were made knowingly and

voluntarily, and that the trial court did not err or abuse its discretion by

imposing   Martinez’s   sentence,   rendering   his   appeal   wholly   frivolous.



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Because Attorney Heilman has complied with the procedural requirements

for withdrawing from representation, we will independently review the record

to determine whether Martinez’s appeal is, in fact, wholly frivolous.

      In his first claim, Martinez challenges the validity of his guilty pleas.

Anders Brief at 11-14.

            Our law is clear that to be valid, a guilty plea must be
      knowingly, voluntarily and intelligently entered. There is no
      absolute right to withdraw a guilty plea, and the decision as to
      whether to allow a defendant to do so is a matter within the
      sound discretion of the trial court. To withdraw a plea after
      sentencing, a defendant must make a showing of prejudice
      amounting to “manifest injustice.” A plea rises to the level of
      manifest injustice when it was entered into involuntarily,
      unknowingly, or unintelligently. A defendant’s disappointment in
      the sentence imposed does not constitute “manifest injustice.”

Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa. Super. 2008)

(citation 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); see also Pa.R.Crim.P. 1007

(stating that any objections related to the validity of a plea agreement must

be raised in a post-sentence motion).

      Here, Martinez did not object during his plea colloquies or file a motion




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to withdraw his pleas, and therefore, this claim is waived.3 See Lincoln, 72

A.3d at 611. Thus, a challenge to the voluntariness of Martinez’s guilty plea

would be wholly frivolous.

      In his second claim, Martinez contends that the trial court abused its

discretion in imposing an excessive sentence.        Anders Brief at 14-15.

Martinez also claims that his sentence is illegal. Id.

      Initially, “[u]pon entry of a guilty 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). Martinez

3
  Even if we could consider the merits of this claim, we would conclude that
Martinez entered into his negotiated plea knowingly, intelligently, and
voluntarily. See generally Commonwealth v. Pollard, 832 A.2d 517, 524
(Pa. Super. 2003) (stating that “[t]he desire of an accused to benefit from a
plea bargain is a strong indicator of the voluntariness of his plea.”). Here,
Martinez completed three Written Guilty Plea Colloquy forms, which advised
him that the judge is not bound the by terms of the plea agreement, as well
as his right to a jury trial and the presumption of innocence. Additionally,
during the January 30, 2015 guilty plea hearing, and the April 24, 2015
sentencing hearing, the trial court conducted oral colloquies on the record,
during which Martinez acknowledged that he reviewed the Written Guilty
Plea Colloquy forms with his attorney; he understood the nature of charges
against him; he understood the maximum sentences he could receive for
each charge; and he agreed to the facts underlying each charge. See N.T.,
1/30/15, at 4-6; N.T., 4/24/15, at 9-17; see also Commonwealth v.
Morrison, 878 A.2d 102, 108 (Pa. Super. 2005) (en banc) (stating that a
written colloquy may be made part of the record of plea proceedings, if it is
supplemented by some oral examination on the record) (citing Pa.R.Crim.P.
590, cmt.); Commonwealth v. Rush, 909 A.2d 805, 808 (Pa. Super. 2006)
(stating that “[w]here the record clearly demonstrates that a guilty plea
colloquy was conducted, during which it became evident that the defendant
understood the nature of the charges against him, the voluntariness of the
plea is established.”) (citation omitted).



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challenges, in part, the discretionary aspects of his sentence.    “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). Therefore, to the extent that Martinez

challenges the discretionary aspects of his sentence, his claim is waived.

See id.   Moreover, even if Martinez had the right to seek a discretionary

appeal in this case, he failed to object to his sentence during sentencing or

file a post-sentence motion. Thus, he preserved no issues for discretionary

review.   See Commonwealth v. Malovich, 903 A.2d 1247, 1251 (Pa.

Super. 2006) (stating that in order to preserve a challenge to the

discretionary aspects of sentencing, an appellant must raise the issue at

sentencing or in a post-sentence motion). Accordingly, any challenge to the

discretionary aspects of Martinez’s sentence would be wholly frivolous.

      However, a challenge to the legality of a sentence, even where

imposed pursuant to a negotiated plea bargain, cannot be waived.          See

Commonwealth v. Langston, 904 A.2d 917, 921 n.2 (Pa. Super. 2006);

see also Boyd, 835 A.2d at 816. “If no statutory authorization exists for a

particular sentence, that sentence is illegal and subject to correction.”

Commonwealth v. Rivera, 95 A.3d 913, 915 (Pa. Super. 2014) (citation

omitted). “Issues relating to the legality of a sentence are questions of law.

Our standard of review over such questions is de novo and our scope of




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review is plenary.”   Commonwealth v. Wolfe, 106 A.3d 800, 802 (Pa.

Super. 2014) (citations, brackets and ellipses omitted).

      Here, Martinez was sentenced to a total of four years of probation.

Martinez was subject to the following maximum prison terms for his

charges: five years for stalking, a misdemeanor of the first degree; two

years for criminal mischief, a misdemeanor of the second degree; and six

months for contempt for violation of order or agreement, as defined by 23

Pa.C.S.A. § 6114(b)(2). See 18 Pa.C.S.A. § 106(b). Martinez received two

years of probation for criminal mischief, one year of probation for stalking,

and six months of probation for each count of contempt for violation of order

or agreement. Because Martinez was sentenced to a total term of probation

that does not exceed the applicable statutory maximum prison terms, his

sentence is legal. See 42 Pa.C.S.A. § 9754(a) (providing that “[i]n imposing

an order of probation the court shall specify at the time of sentencing the

length of any term during which the defendant is to be supervised, which

term may not exceed the maximum term for which the defendant could be

confined”); see also Commonwealth v. Crump, 995 A.2d 1280, 1284 (Pa.

Super. 2010) (stating that “a defendant cannot be given a term of probation

which exceeds the statutory maximum.”).

      Further, our independent examination of the record indicates that

there are no other claims of arguable merit. See Anders, 386 U.S. at 744-




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45. Accordingly, we conclude that Martinez’s appeal is wholly frivolous, and

Attorney Heilman is entitled to withdraw as counsel.

     Petition to Withdraw as counsel granted; judgment of sentence

affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/20/2017




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