J-S29011-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                          Appellee

                     v.

JOSE GARCIA,

                          Appellant                    No. 2932 EDA 2018


    Appeal from the Judgment of Sentence Entered September 11, 2018
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0001603-2017


BEFORE: BENDER, P.J.E., LAZARUS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                      FILED JANUARY 15, 2020

      Appellant, Jose Garcia, appeals from the judgment of sentence of two

years’ probation, imposed after he entered a negotiated guilty plea for

possession of a controlled substance, 35 P.S. § 780-113(a)(16). Appellant

challenges whether he knowingly, intelligently, and voluntarily entered his

guilty plea. Furthermore, Appellant’s counsel, Jessica C. Mann, Esq., seeks to

withdraw her representation of Appellant pursuant to Anders v. California,

386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009). We grant Attorney Mann’s petition to withdraw and affirm Appellant’s

judgment of sentence.

      The trial court set forth the relevant facts as follows:
      On September 11, 2018, [Appellant] entered into a negotiated
      guilty plea for two (2) years of reporting probation on the charge
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       of … possession of a controlled substance.[1,2]          The [c]ourt
       specifically advised [Appellant] that before he would be allowed to
       enter the proffered negotiated guilty plea,2 the record needed to
       be clear that [Appellant] understood what he was doing and
       understood the rights he was giving up to proceed by way of a
       negotiated guilty plea.         Thereafter, [the Commonwealth]
       specifically colloquyed [sic] [Appellant] regarding his competency,
       the rights he would be giving up, as well as the consequential
       effects of his plea, and in pertinent parts[,] the following
       transpired:

          [The Commonwealth]: You also understand if you’re on
          probation or parole, this could violate that?

          [Attorney Humble]: My client’s on parole right now, that’s
          why we’re taking the misdemeanor negotiated offer. He’s
          been advised of that.

          [Appellant]: Yeah, my parole is maxed out.

          [The Commonwealth]: Do you understand that if you are
          under supervision … you understand [that] this could violate
          that?

          [Appellant]: Yes.

          [The court]: So you’ve had that conversation with your
          attorney? You do understand this could be a violation?

          [Appellant]: Yes[, m]a’am.


____________________________________________


1 To support the plea, the Commonwealth related that, on November 17, 2016,
Philadelphia police officers “received information from a confidential informant
in reference to … illegal sales [of] narcotics from … inside the residence of
2642 East Mayfield Street in Philadelphia County. The person associated with
these sales was a Hispanic male named Jose, approximately 30 years old.”
N.T., 9/11/2018, at 16. After further investigations, police “served a search
warrant on [the] 2642 East Mayfield Street [residence] associated with
[Appellant], and within this residence found … .535 grams of marijuana, 13
alprazolam pills, .092 grams of cocaine, .112 grams of oxycodone, and … four
more additional pills of alprazolam.” Id. at 16-17.

2 Attorney Mann did not represent Appellant at the guilty plea colloquy. At
that time, Appellant was represented by Brian Humble, Esq.

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      [N.T. at 14].
         2 It should also be noted that as part of the negotiations[,]
         the Commonwealth dismissed the related felony charge of
         possession with intent to distribute and only proceeded on
         the aforementioned misdemeanor charge.

      Finally, at the conclusion of the imposition of the negotiated
      sentence, [Appellant] was advised that he had … ten (10) days to
      withdraw his guilty plea or request reconsideration from the trial
      court, and thirty (30) days to file an appeal to the Superior Court
      on the limited grounds described in the colloquy. [Appellant] did
      not request to withdraw his plea nor did he request
      reconsideration. However, on October 5, 2018, [Appellant, pro
      se,] filed the instant appeal.

Trial Court Opinion (TCO), 2/1/2019, at 1-2 (unnumbered pages; footnote and

most internal citations to record omitted).

      On October 11, 2018, the trial court appointed Attorney Mann to

represent Appellant.   Thereafter, on October 15, 2018, the court ordered

Appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), no later than 21 days from the date of its

order, i.e., November 5, 2018.      On November 5, 2018, Appellant filed a

petition for an extension of time to file his Rule 1925(b) statement, explaining

that the newly-appointed Attorney Mann was still in the process of “putting

together” Appellant’s file, including the relevant notes of testimony that had

not yet been transcribed. See Petition for Extension of Time, 11/5/2018, at

1 (unnumbered pages). Subsequently, on December 5, 2018, Appellant filed




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his Rule 1925(b) statement, raising one issue. The trial court issued its Rule

1925(a) opinion addressing Appellant’s alleged error on February 1, 2019.3

       On March 19, 2019, Attorney Mann filed a petition to withdraw as

counsel and an Anders brief. On August 5, 2019, this Court ascertained that

Attorney Mann’s filings contained deficiencies, and consequently denied her

petition to withdraw and remanded for her to file either a compliant Anders

brief or an advocate’s brief.

       On October 4, 2019, Attorney Mann filed a new petition to withdraw and

an Anders brief, wherein she raised the following issue:
       Whether [Appellant’s] guilty plea was knowing, voluntary, and
       intelligent where[,] although he had maxed out his parole at the
       time of the plea, his plea counsel did not advise him that because
       the date of the crime occurred while he was still on parole, the
       subsequent conviction would trigger a violation of that parole?

Anders Brief at 2.

       Attorney Mann determines that this appeal is wholly frivolous.

Accordingly,
       this Court must first pass upon counsel’s petition to withdraw
       before reviewing the merits of the underlying issues presented by
       [the appellant]. Commonwealth v. Goodwin, 928 A.2d 287,
       290 (Pa. Super. 2007) (en banc).
____________________________________________


3 Our review of the record does not indicate that the trial court actually granted
Appellant’s request for an extension of time to file his Rule 1925(b) statement,
which renders his Rule 1925(b) statement, filed on December 5, 2018,
untimely. Notwithstanding the late filing of his Rule 1925(b) statement, we
will address the merits of his claim. See Commonwealth v. Burton, 973
A.2d 428, 433 (Pa. Super. 2009) (“[I]f there has been an untimely filing [of
the Rule 1925(b) statement], this Court may decide the appeal on the merits
if the trial court had adequate opportunity to prepare an opinion addressing
the issues being raised on appeal.”).

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      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.

      Santiago, 978 A.2d at 361. Counsel also must provide a copy of
      the Anders brief to [her] 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. Nischan, 928 A.2d 349, 353 (Pa.
      Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014). After

determining that counsel has satisfied these technical requirements of Anders

and Santiago, this Court must then “conduct a simple review of the record to

ascertain if there appear on its face to be arguably meritorious issues that

counsel, intentionally or not, missed or misstated.”         Commonwealth v.

Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en banc).

      In the case sub judice, Attorney Mann’s Anders brief complies with the

above-stated requirements. Namely, she includes a summary of the relevant

factual and procedural history, she refers to portions of the record that could

arguably support Appellant’s claims, and she sets forth her conclusion that

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Appellant’s appeal is frivolous. She also explains her reasons for reaching that

determination, and supports her rationale with citations to the record and

pertinent legal authority.    Attorney Mann also states in her petition to

withdraw that she supplied Appellant with a copy of her Anders brief.

Additionally, she attached a letter directed to Appellant to her petition to

withdraw, in which she informed Appellant of the rights enumerated in

Nischan. Accordingly, counsel complied with the technical requirements for

withdrawal.   We will now independently review the record to determine if

Appellant’s issue is frivolous, and to ascertain if there are any other, non-

frivolous issues he could pursue on appeal.

      Appellant argues that his guilty plea was not knowing, voluntary, and

intelligent where, although he had ‘maxed out’ his parole at the time of the

plea, his plea counsel did not advise him that his subsequent conviction would

trigger a violation of his parole because the offense occurred while he was still

on parole. See Anders Brief at 2. At the outset, we note that “[s]ettled

Pennsylvania law makes clear that by entering a guilty plea, the defendant

waives his 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). “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


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measure results in waiver.”   Id. at 609-10 (citations omitted).   Here, the

record indicates that Appellant did not make an objection during the plea

colloquy or file a timely motion to withdraw his plea. As a result, Appellant

has waived this claim.    We therefore grant Attorney Mann’s petition to

withdraw and affirm Appellant’s judgment of sentence.


     Petition to withdraw granted. Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/15/20




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