J-S17017-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                           Appellee

                      v.

 TODD A. MOWERY

                           Appellant                 No. 2002 MDA 2019


    Appeal from the Judgment of Sentence imposed November 13, 2019
           In the Court of Common Pleas of Lackawanna County
             Criminal Division at No: CP-35-CR-0000624-2018


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

MEMORANDUM BY STABILE, J.:                          FILED AUGUST 14, 2020

         Appellant, Todd A. Mowery, appeals from the judgment of sentence

imposed in the Court of Common Pleas of Lackawanna County on November

13, 2019.     Counsel has filed a brief and petition to withdraw pursuant to

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

Santiago, 978 A.2d 349 (Pa. 2009).        We deny counsel’s petition without

prejudice for the filing of a proper Anders petition and brief, or an advocate’s

brief.

         The factual and procedural background are not at issue.     Briefly, on

August 26, 2019, Appellant entered an open guilty plea to one count of simple

assault, a misdemeanor of the second degree carrying a maximum fine of

$5,000 and 2 years’ imprisonment.       Prior to the acceptance of the plea,

Appellant completed and signed a written guilty plea colloquy, which was
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supplemented by an oral colloquy on the record.         The colloquies informed

Appellant of the nature of the charges against him, the rights he was giving

up, and the maximum sentence for the crime.          Following these colloquies,

Appellant admitted to committing simple assault.

        On November 13, 2019, the trial court sentenced Appellant to 12 to 24

months’ incarceration.       After the trial court denied Appellant’s motion for

reconsideration, Appellant filed the instant appeal. In response to the trial

court’s order pertaining to the filing of a Pa.R.A.P. 1925(b) concise statement,

counsel filed a statement pursuant to Pa.R.A.P. 1925(c)(4), informing the trial

court of his intention to file an Anders brief instead of a concise statement

pursuant to Rule 1925(b).

        The Anders brief challenges the jurisdiction of the trial court to accept

Appellant’s guilty plea, the validity of the plea, and the legality of the

sentence.1 Before we address the merits of the challenge, however, we must



____________________________________________


1   In the brief, counsel notes that

        Appellant requested an appeal be fi[le]d because he believes his
        sentence was “harsh.” He maintains he was willing to participate
        in any programs necessary to address any perceived alcohol
        issues and that he should have been given an opportunity to
        establish any alcohol issues that he may have had were under
        control.

Anders Brief at 3. Thus, while Appellant asked counsel to challenge the
discretionary aspects of his sentence, counsel believed that such a challenge
was not possible given that Appellant had pled guilty. As explained below,
counsel is mistaken.

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consider the adequacy of counsel’s compliance with Anders and Santiago.

Our Supreme Court requires counsel to do the following.

      Prior to withdrawing as counsel on a direct appeal under Anders,
      counsel must file a brief that meets the requirements established
      by our Supreme Court in Santiago. The 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.

      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 his
      right to: (1) retain new counsel to pursue the appeal; (2) 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, 879–80 (Pa. Super. 2014).

      We note that the brief substantially complies with Anders/Santiago,

although counsel failed to provide citations to the record in the context of the

summary of the procedural history and facts, and omitted the requisite Rule

2119(f) statement when challenging the discretionary aspects of the sentence.

See, e.g., Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa. Super. 2009)

(“The Anders brief challenges discretionary aspects of Appellant’s sentence.

Appellant was required to set forth in his brief a concise statement of the


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reasons relied upon for allowance of appeal with respect to the discretionary

aspects of a sentence”) (citation and internal quotation marks omitted).

      We suspect the absence of a Rule 2119(f) statement is probably due to

counsel’s failure to recognize that, since the plea here was open, the law

permits a discretionary challenge to Appellant’s sentence. Counsel indicates

in his brief that, since Appellant pled guilty, Appellant’s reasons for challenging

the sentence are limited to three grounds: jurisdiction of the court, validity

of the plea, and legality of the sentence.      Had Appellant pled guilty to a

negotiated plea, counsel would be correct that any subsequent challenges

would be limited to these grounds.

      In Commonwealth v. Tirado, 870 A.2d 362 (Pa. Super. 2005),

      [w]e note[d] that while a guilty plea which includes sentence
      negotiation ordinarily precludes a defendant from contesting the
      validity of his or her sentence other than to argue that the
      sentence is illegal or that the sentencing court did not have
      jurisdiction, open plea agreements are an exception in which a
      defendant will not be precluded from appealing the discretionary
      aspects of the sentence.


Id. at 365, n.5. See also Commonwealth v. Guth, 735 A.2d 709, 710, n.3

(Pa. Super. 1999) (when the plea agreement is open, containing no bargain

for a specific or stated term of sentence, the defendant will not be precluded

from appealing the discretionary aspects of his sentence).

      A review of the plea Appellant entered on August 26, 2019 reveals that

while Appellant pled guilty to simple assault, the plea was silent as to any

sentence to be imposed. Indeed, the guilty plea form executed by Appellant


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merely stated the maximum sentence applicable under the statute but did not

provide any specifics as to the actual sentence to be imposed.          The plea

entered by Appellant, therefore, was open. As such, contrary to counsel’s

assertion, Appellant can challenge the discretionary aspects of his sentence.

See Tirado, supra; Guth, supra.

      Because counsel’s argument rests on a misunderstanding of the facts

and/or the law, we are constrained to deny his petition to withdraw without

prejudice to refile his petition. We therefore, direct that counsel file, within

thirty days of the date of this memorandum, either an advocate’s brief or a

compliant Anders brief and petition to withdraw. If counsel files an Anders

petition and brief, Appellant shall have thirty days after service of counsel’s

petition, letter, and brief to file a response in this Court either pro se or with

the benefit of private counsel. The Commonwealth may respond within thirty

days to any brief filed on behalf of Appellant.

      Petition to withdraw denied. Panel jurisdiction retained.




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