J-S25022-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                               :          PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RICHARD RHONE GASTON                       :
                                               :
                       Appellant               :     No. 1885 MDA 2018

        Appeal from the Judgment of Sentence Entered August 18, 2017
     In the Court of Common Pleas of Lancaster County Criminal Division at
                       No(s): CP-36-CR-0001842-2017


BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.:                          FILED: MAY 21, 2019

       Richard Rhone Gaston (Appellant) appeals from the judgment of

sentence imposed after he pled guilty to possession with intent to deliver

(PWID) cocaine, criminal conspiracy, and possession of drug paraphernalia. 1

Additionally, Appellant’s counsel, Diana C. Kelleher, Esquire (Counsel) seeks

to withdraw from representation pursuant to Anders v. California, 38 U.S.

738 (1967), and Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa.

2009).    Upon review, we grant Counsel’s petition to withdraw and affirm

Appellant’s judgment of sentence.

       Appellant entered a negotiated guilty plea to PWID, criminal conspiracy,

and possession of drug paraphernalia on August 18, 2017. That same day,

the trial court sentenced Appellant to 2½ to 5 years of incarceration in a state
____________________________________________


1 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. § 903; and 35 P.S. § 780-
113(a)(32).
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correctional institution. At that time, Appellant was represented by Michael

Marinaro, Esquire.

       On August 25, 2017, Appellant filed pro se a “motion for direct appeal,”

challenging the legality of his plea and sentence. The motion was forwarded

to Attorney Marinaro, still Appellant’s counsel of record, pursuant to

Pa.R.Crim.P. 576(a)(4), but was not served upon the trial court. On August

29, 2017, Appellant filed a second pro se pleading, a post-sentence motion

seeking to withdraw his guilty plea and asserting his innocence. This motion

was also forwarded to Attorney Marinaro, but not the court. Attorney Marinaro

did not file a counseled post-sentence motion or direct appeal, nor did he seek

to withdraw as counsel.

       On January 19, 2018, Appellant timely filed a pro se petition for post-

conviction relief, raising claims related to ineffective assistance of trial counsel

regarding the plea and his representation. Current Counsel was appointed

and filed a Turner/Finley2 no merit letter and accompanying petition to

withdraw representation.          The court sent Appellant notice pursuant to

Pa.R.Crim.P. 907 that his petition would be dismissed without a hearing;

Appellant responded to the notice. Following an in camera meeting between

all counsel and the court, Counsel filed an amended PCRA petition on

September 27, 2018. On October 15, 2018, due to Attorney Marinaro’s failure



____________________________________________


2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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to file a direct appeal or ensure that an appeal was filed by another attorney,

the court restored Appellant’s direct appeal rights.

      This timely appeal followed. Both Appellant and the trial court have

complied with Pennsylvania Rule of Appellate Procedure 1925. On March 18,

2019, Counsel filed an Anders brief and accompanying petition to withdraw

as counsel, in which she argues that Appellant’s appeal is frivolous and

requests permission from this Court to withdraw as counsel.

      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. Goodwin, 928 A.2d 287, 290 (Pa.

Super. 2007) (en banc).     Prior to withdrawing as counsel on direct appeal

under Anders, 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.

      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

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      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, 879-880 (Pa. Super. 2014).

After determining that counsel has satisfied these technical requirements of

Anders and Santiago, only then 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).

      Counsel’s Anders brief complies with the above requirements.           She

includes a summary of the relevant factual and procedural history; she refers

to the portions of the record and relevant authority that could arguably

support Appellant’s claim; and she sets forth the conclusion that the appeal is

frivolous and no other issues could be raised.        Additionally, Counsel has

supplied Appellant with a copy of the Anders brief and a letter explaining the

rights enumerated in Nischan, supra. Thus, Counsel has complied with the

technical requirements for withdrawal, and we therefore proceed to

independently review the record to determine if the issues raised are frivolous,

and to ascertain whether there are non-frivolous issues Appellant may pursue

on appeal.

      Counsel’s Anders brief raises a single issue for our review: “Should

appellate counsel be granted leave to withdraw because any appellate issues

in the instant case are frivolous?” Anders Brief at 4. Specifically, Counsel


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notes that Appellant’s request to withdraw his guilty plea was frivolous. Id.

at 10-15.

      There are different standards for reviewing requests to withdraw a guilty

plea before and after a sentence is imposed. Commonwealth v. Flick, 802

A.2d 620, 623 (Pa. Super. 2002).      Pre-sentence, the court administers its

discretion liberally in favor of the accused, and “any demonstration by a

defendant of a fair-and-just reason will suffice to support a grant, unless

withdrawal would work substantial prejudice to the Commonwealth.”           See

Commonwealth v. Carrasquillo, 115 A.3d 1284, 1291-92 (Pa. 2015). In

contrast,

      post-sentence motions for withdrawal are subject to higher
      scrutiny since courts strive to discourage entry of guilty pleas as
      sentence-testing devices. A defendant must demonstrate that
      manifest injustice would result if the court were to deny his
      post[-]sentence motion to withdraw a guilty plea. Manifest
      injustice may be established if the plea was not tendered
      knowingly, intelligently, and voluntarily. In determining whether
      a plea is valid, the court must examine the totality of
      circumstances surrounding the plea. A deficient plea does not per
      se establish prejudice on the order of manifest injustice.

Commonwealth v. Broaden, 980 A.2d 124, 129 (Pa. Super. 2009) (internal

citations omitted).

      Our Court has recognized that defendants may waive valuable rights as

part of their plea agreements if that waiver is key to “obtaining a bargained-

for exchange from the Commonwealth.” See Commonwealth v. Byrne, 833

A.2d 729, 735-36 (Pa. Super. 2003).        These rights include constitutional

rights, such as the right to a trial by jury and confrontation of witnesses, and


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statutory rights, such as the right to credit for time served. Id. In so finding,

we noted that a defendant entering into a negotiated plea deal who sought to

avoid a specific negotiated term “would undermine the designs and goals of

plea bargaining” and “make a sham of the negotiated plea process.” Id. at

735; see also Commonwealth v. Porreca, 595 A.2d 23, 26 (Pa. 1991)

(noting that the defendant may not withdraw his plea where the sentencing

court does not follow the Commonwealth’s sentencing recommendation so

long as the defendant is informed that the recommendation is not binding on

the court, and that he cannot withdraw his plea if the court does not follow

it).

       Thus, we may apply the post-sentence “manifest injustice” standard so

long as the plea comports with the requirements therein. “Manifest injustice”

may result when a plea was not tendered knowingly, intelligently, and

voluntarily. Broaden, 980 A.2d at 129. In determining whether a plea was

entered knowingly and voluntarily, this Court considers the totality of the

circumstances surrounding the plea.      Commonwealth v. Flanagan, 854

A.2d 489, 513 (Pa. 2004). A valid plea colloquy examines:

       1) the nature of the charges, 2) the factual basis for 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. Morrison, 878 A.2d 102, 107 (Pa. Super. 2005) (quoting

Flanagan, supra).




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      Instantly, both of Appellant’s oral and written colloquies were sufficient

to confirm all of the above requirements. See N.T., 8/18/17, at 2-11; see

also Guilty Plea Colloquy, 8/18/17, at 1-7. Appellant indicated on his written

colloquy that no one had forced or threatened him to enter the plea; that he

was satisfied with plea counsel; and he entered the plea voluntarily.      See

Guilty Plea Colloquy, 8/18/17, at 1-7. Rather than the approximately 20 to

40 years of incarceration that Appellant faced, he was sentenced only to 2½

to 5 years of incarceration, which was the original sentence offered to him.

See N.T. at 6, 10-11. As a further condition of Appellant’s plea, charges were

not filed against his wife, who was arrested with him and who was responsible

for the care of their children.   Id. at 9-10. Thus, from the totality of the

circumstances, we determine that the plea was valid. See Flanagan, 854

A.2d at 513; Morrison, 878 A.2d at 107; see also Commonwealth v.

Sauter, 567 A.2d 707, 708-09 (Pa. Super. 1989) (noting that oral and written

colloquies suggested that the plea was knowing, intelligent, and voluntary).

      Appellant’s original motion to withdraw his guilty plea, as well as his

claims of ineffective assistance of counsel, do not provide us with any further

reason to find that he was subject to manifest injustice.      First, Appellant

claimed that he was innocent of the charges against him. Appellant noted

that he was not aware of the plea deal; that he was threatened with his wife’s

imprisonment if he did not enter the plea deal; and that Attorney Mariano told

him he would not represent Appellant at trial. See Mot. to Withdraw Guilty

Plea, 8/25/17, at 1-4; PCRA Petition, 1/19/18, at 1-8.

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      Initially, we note that by asserting his innocence to the charges he pled

guilty to, Appellant implies that his responses to the plea colloquies were

untruthful. A defendant 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.”   Commonwealth v. Turetsky, 925 A.2d 876, 881 (Pa. Super.

2007) (quotations and citations omitted). “A criminal defendant who elects

to plead guilty has a duty to answer questions truthfully.” Id. Because “[a]

defendant is bound by the statements which he makes during his plea

colloquy[,]” Commonwealth v. Orlando, 156 A.3d 1274, 1281 (Pa. Super.

2017), Appellant cannot now propose that his guilty plea was not entered into

voluntarily, knowingly, or intelligently.

      Appellant’s remaining claims are likewise belied by the record. He was

scheduled for trial the week following his guilty plea, and trial counsel did not

withdraw representation. See Order, 7/23/17, at 1. Further, Appellant signed

an extensive plea colloquy, and testified that he had reviewed the colloquy

with his attorney and acknowledged the facts supporting his conviction. See

N.T., 2-7.    Appellant declined to speak on his own behalf and did not

communicate any of the above issues to the court.         Id. at 10.    Attorney

Marinaro indicated that the plea deal had been in place since Appellant waived

his preliminary hearing. Id. at 9. Charges were not filed against Appellant’s

wife as a condition of the plea, and Appellant indicated at the colloquy that he

was grateful.   Id.   Accordingly, the record does not reflect any manifest

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injustice in the circumstances surrounding Appellant’s plea and sentencing.3

Broaden, 980 A.2d at 129.

       For the above reasons, we conclude that the trial court would not have

erred in denying Appellant’s motion to withdraw his guilty plea. Finally, our

independent review of the proceedings reveals no other non-frivolous issues

that Appellant could raise on appeal. See Flowers, 113 A.3d at 1250. Thus,

we grant Counsel’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: 5/21/2019




____________________________________________


3  Appellant also raised issues more properly characterized as ineffective
assistance of counsel. See PCRA Petition, 1/19/18, at 1-8. However, these
issues are more appropriately raised on collateral review.            See
Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002) (providing
ineffectiveness claims are generally reserved for collateral review);
Commonwealth v. Leverette, 911 A.2d 998, 1004 (Pa. Super. 2006)
(explaining ineffectiveness claims may be raised on direct appeal only in
certain circumstances which are not present here).

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