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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                             :
                                               :
                                               :
    JOSEPH WOLFE                               :
                                               :
                       Appellant               :   No. 1961 EDA 2019

          Appeal from the Judgment of Sentence Entered May 8, 2019
      In the Court of Common Pleas of Wayne County Criminal Division at
                        No(s): CP-64-CR-0000019-2019


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

MEMORANDUM BY NICHOLS, J.:                                  FILED MAY 5, 2020

        Appellant Joseph Wolfe appeals from the judgment of sentence imposed

after he pled guilty driving under the influence of alcohol (DUI)–high rate of

alcohol 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.

        Briefly, Appellant was charged with multiple counts of DUI and

corruption of minors after he crashed his vehicle while he was intoxicated. At

the time of the accident, Appellant’s ten-year-old daughter and her twelve-

year-old friend were also in the car. On March 28, 2019, Appellant entered

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1   75 Pa.C.S. § 3802(b) and 18 Pa.C.S. § 6301(a)(1)(i), respectively.

2Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
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an open guilty plea to one count each of DUI–high rate of alcohol and

corruption of minors. On May 10, 2019, the trial court sentenced Appellant to

an aggregate term of twenty-five to ninety-two months’ incarceration,

consisting of nine to sixty months for DUI–high rate of alcohol and a

consecutive term of sixteen to thirty-two months for corruption of minors.3

Appellant did not file a timely post-sentence motion or a direct appeal.

        On June 12, 2019, Appellant filed a petition to file an appeal nunc pro

tunc.     On June 19, 2019, the trial court granted Appellant’s petition and

reinstated his direct appeal rights. On July 3, 2019, Appellant filed a timely

notice of appeal and a Pa.R.A.P. 1925(b) statement raising the following

issues:

        1. That the trial court abused its discretion in sentencing
           Appellant. That there is no legitimate reasoning for the [trial
           c]ourt’s sentence of [Appellant] in this matter, in that one
           sentence is at the lowest end of the standard range, and one
           sentence is at the highest end of the standard range.

        2. That the sentence Appellant received was an illegal sentence in
           that Appellant believes the [trial c]ourt miscalculated his prior
           record score.

Appellant’s Rule 1925(b) Statement, 7/3/19.

        The trial court filed a Rule 1925(a) opinion asserting that Appellant’s

sentencing claims were meritless.              See Trial Ct. Op., 8/1/19, at 3-4.


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3The trial court indicated that Appellant had a prior record score of four based
on a juvenile adjudication for burglary that occurred when Appellant was
seventeen years old.


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Specifically, the trial court explained that it reviewed Appellant’s PSI and the

relevant sentencing guidelines, but ultimately found that Appellant’s sentence

was proper because his “crimes and actions [were] especially egregious.” Id.

at 3; see also N.T. Sentencing Hr’g, 5/9/19, at 10-12. Further, the trial court

explained that Appellant’s PRS was a four due to his juvenile adjudication for

felony-one burglary in 2002. Trial Ct. Op. at 4.

        On October 11, 2019, 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, along with a letter advising

Appellant of his right to proceed pro se or with new, privately retained

counsel.4 Appellant has not filed a pro se response or a counseled brief with

new counsel.

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

        1. Did the trial court accept a valid guilty plea from [] Appellant
           in the underlying matter?

        2. Did the sentencing court commit any errors that would entitle
           [] Appellant to any relief?

Anders/Santiago Brief at 7.5

        “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.

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4   A copy of the letter is attached to counsel’s Anders/Santiago brief.

5   The Commonwealth did not file a brief.

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

requirements for petitioning to withdraw by (1) filing a petition for leave to

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).

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         Here, counsel has complied with the procedures for seeking withdrawal

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

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.6 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.

         Counsel first identifies an issue regarding the validity of Appellant’s

guilty plea. Anders/Santiago Brief at 11. Counsel notes that Appellant did

not raise “any issues regarding the voluntariness of his plea.”          Id. at 10.

Further, counsel explains that each of the six areas required by Pa.R.Crim.P.

590 “were included in [] Appellant’s written guilty plea colloquy, which was

executed and signed by [] Appellant prior to his guilty plea hearing.”         Id.

Counsel also states that at the plea hearing, “Appellant again acknowledged

on the record his understanding and acceptance of these six areas.” Id. at

11-12. Counsel suggests that Appellant’s plea colloquy was sufficient, and


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6Although the Anders/Santiago brief does contain citations to the record, it
does not impede our review.

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therefore, “the trial court properly accepted [] Appellant’s guilty plea.” Id. at

12.

        “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

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).

        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) (citation

omitted).       “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.”


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Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super. 2003) (citation

omitted).

     “[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-



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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

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

appeal.” Id. at 610 (citation omitted).

      Here, Appellant did not challenge his guilty plea during the plea colloquy

or in a post-sentence motion.         Consequently, any challenge to Appellant’s

guilty plea is waived.    See Lincoln, 72 A.3d at 609-10.            Further, even if

Appellant properly preserved his claim, no relief is due. As noted by counsel,

Appellant executed a written plea colloquy that covered the six areas set forth

in Pa.R.Crim.P. 590. See Written Plea Colloquy, 3/28/19, at 2-10. During

the oral colloquy, Appellant also confirmed that he understood his rights. See

N.T. Guilty Plea Hr’g, 3/28/19, at 7-10.             Appellant is bound by these

statements, which demonstrate that his plea was knowing, voluntary, and

intelligent. See Pollard, 832 A.2d at 523.

      Next,   counsel    identifies    Appellant’s   claim   that    the   trial   court

miscalculated his prior record score (PRS) under the Sentencing Guidelines.

Anders/Santiago Brief at 12. Specifically, counsel notes that the trial court

counted Appellant’s juvenile adjudication for burglary, which increased his PRS

from a zero to a four. Id. Appellant argues that his PRS was actually a zero,

as “his prior adjudication for a first-degree burglary should lapse.” Id. at 13.

However, counsel suggests that because               Appellant      “was adjudicated




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delinquent on a felony, and the offense occurred after his fourteenth []

birthday, the [trial c]ourt utilized the correct guidelines.” Id. at 13.

      Counsel also notes that because Appellant had a PRS of four, his

“sentence was therefore within the standard range.” Id. at 13-14. Counsel

adds that the trial court gave Appellant “the opportunity to argue for a more

lenient sentence” and also placed the reasons for its sentence on the record.

Id. at 14. In sum, counsel asserts that Appellant has “no arguable sentencing

claims.” Id.

      Appellant’s issues are challenges to the discretionary aspects of his

sentence. See Commonwealth v. Sanchez, 848 A.2d 977, 986 (Pa. Super.

2004) (holding that a miscalculation of the prior record score “constitutes a

challenge to the discretionary aspects” of a sentence (citation omitted)); see

also Commonwealth v. Keiper, 887 A.2d 317, 319 (Pa. Super. 2005)

(explaining that a “challenge to the calculation of the Sentencing Guidelines

raises a question of the discretionary aspects of a defendant’s sentence.”

(citations and quotation marks omitted)).

      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

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         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.

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

sentencing claims before the trial court. Therefore, they are waived. Id.

      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.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/05/2020


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