J-S26012-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ERIC WILLIAM                               :
                                               :
                       Appellant               :   No. 997 EDA 2018

              Appeal from the Judgment of Sentence March 5, 2018
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0003947-2017


BEFORE:      PANELLA, P.J., GANTMAN, P.J.E., and PELLEGRINI, J.

MEMORANDUM BY PANELLA, P.J.:                           FILED AUGUST 27, 2019

        Eric William appeals from the judgment of sentence imposed following

his guilty plea conviction of attempted murder. Appellant’s counsel seeks to

withdraw his representation pursuant to Anders v. California, 386 U.S. 738

(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We

affirm the judgment of sentence and grant counsel’s petition to withdraw.

        On November 21, 2016, Appellant, who was incarcerated while awaiting

trial in a murder case, hid in his victim’s cell. When the victim entered the

cell, Appellant left his hiding place, locked the door, and attacked the victim

stating: “I’m going to kill you like I killed your son.”1 N.T. Guilty Plea Hearing,
____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1 Appellant was in jail awaiting trial for murdering the victim’s stepson. Since
then, he was convicted of first-degree murder in the matter and sentenced to
a mandatory life sentence without parole. See Docket No. CP-51-CR-
0008144-2015.
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3/05/18, at 34. Appellant stabbed his victim multiple times in the face, neck,

and testicles, causing him to lose consciousness and ultimately spend several

days in the hospital because of the injuries. See id. at 34-35.

     On March 5, 2018, Appellant entered a negotiated guilty plea to

attempted murder.    In accordance with the plea, the Commonwealth nolle

prossed all other pending charges associated with the incident. On the same

day Appellant entered his plea, the trial court sentenced him, consistent with

the plea agreement, to a term of not less than ten nor more than twenty years

of imprisonment, to run concurrently to the mandatory life sentence he was

currently serving for murder. Appellant did not file post-sentence motions.

This timely appeal followed.

     On October 10, 2018, in response to the trial court’s concise statement

order, counsel filed a statement of intent to file an Anders brief. The trial

court entered a Rule 1925(a) statement on December 4, 2018. See Pa.R.A.P.

1925(a). On January 4, 2019, counsel filed his petition for leave to withdraw

and Anders brief on the basis that the appeal is wholly frivolous. Appellant

has not responded.

     Court-appointed counsel who seek to withdraw from representing
     an appellant on direct appeal on the basis that the appeal is
     frivolous must:

           (1) petition the court for leave to withdraw stating
           that, after making a conscientious examination of the
           record, counsel has determined that the appeal would
           be frivolous; (2) file a brief referring to anything that
           arguably might support the appeal but which does not
           resemble a “no-merit” letter or amicus curiae brief;
           and (3) furnish a copy of the brief to the defendant

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           and advise the defendant of his or her right to retain
           new counsel or raise any additional points that he or
           she deems worthy of the court’s attention.

           [T]his Court may not review the merits of the underlying
     issues without first passing on the request to withdraw.

Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super. 2009) (citations

and quotation marks omitted; brackets in original). Further, our Supreme

Court ruled in Santiago, supra, that Anders briefs must contain “a

discussion of counsel’s reasons for believing that the client’s appeal is

frivolous[.]” Santiago, 978 A.2d at 360.

     Here, counsel’s Anders brief and motion to withdraw substantially

comply with the applicable technical requirements and demonstrate that he

“has made a conscientious examination of the record in this case and has

determined that an appeal would be frivolous.” Lilley, supra at 997. The

record establishes that counsel served Appellant with a copy of the Anders

brief and motion to withdraw, and a letter of notice, which advised Appellant

of his right to retain new counsel, or to proceed pro se and raise additional

issues to this Court. See Motion to Withdraw as Counsel, 1/04/19. Further,

the motion and brief cite “to anything that arguably might support the

appeal[.]” Lilley, 978 A.2d at 997 (citation omitted); see also Anders Brief,

at 8-12.   Accordingly, we conclude that counsel complied with Anders’

technical requirements. See Lilley, 978 A.2d at 997.

     Having concluded that counsel’s petition and brief substantially comply

with the technical Anders requirements, we must “conduct [our] own review

of the trial court’s proceedings and render an independent judgment as to

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whether the appeal is, in fact, wholly frivolous.”     Id. at 998 (citation and

internal quotation marks omitted).

       The Anders brief raises two questions for our review:2

       i.     [Whether] Appellant was coerced into taking a plea by the
              trial court[?]

       ii.    [Whether t]he trial court erred by failing to allow Appellant
              to have substitute appointed counsel because the existing
              attorney-client relationship had failed[?]

Anders Brief, at 8, 10.

       In the first issue set forth in the Anders brief, Appellant argues that he

is entitled to relief because the trial court coerced him into pleading guilty.

We disagree.

       Preliminarily, we observe that “[i]n order to preserve an issue related to

a guilty plea, an appellant must either object at the sentencing colloquy or

otherwise raise the issue at the sentencing hearing or through a post-sentence

motion.” Commonwealth v. Monjaras-Amaya, 163 A.3d 466, 468-69 (Pa.

Super. 2017) (citations and internal quotation marks omitted).         Failure to

challenge the voluntariness of a guilty plea by objecting at sentencing or

raising the issue through a post-sentence motion results in waiver. See id.

at 469.



____________________________________________


2 Appellant’s statement of questions presented only poses one question,
“whether there are any issues of arguable merit that could be raised on appeal
presently before this court and whether the appeal is wholly frivolous?”
Anders Brief, at 4. However, the argument portion of his brief includes two
specific issues raised. For clarity, we have set forth those questions here.

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      Here, the record reveals that Appellant never challenged his guilty plea

in the trial court. Accordingly, Appellant’s first issue is waived.

      In the second issue raised in the Anders brief, Appellant contends that

the trial court erred by failing to appoint new counsel after Appellant alleged

the attorney-client relationship had failed.    See Anders Brief, at 10.      We

disagree.

      While Appellant is entitled to appointed counsel, he is not entitled to

appointed counsel of his choosing. See Commonwealth v. Cook, 952 A.2d

594, 617 (Pa. 2008). Thus,

      [w]hether to grant a defendant’s petition to replace court
      appointed counsel is a decision which is left to the sound discretion
      of the trial court. As a general rule, however, a defendant must
      show irreconcilable differences between himself and his court
      appointed counsel before a trial court will be reversed for abuse
      of discretion in refusing to appoint new counsel.

Commonwealth v. Floyd, 937 A.2d 494, 497 (Pa. Super. 2007) (citations

omitted; brackets in original).

      Here, during the guilty plea hearing, the court addressed Appellant’s

motion to substitute counsel.     Appellant explained that he was dissatisfied

with counsel’s representation because he did not receive full discovery and did

not adequately discuss defense strategy.           Appellant characterized the

relationship as “eroding” and “[not] a good relationship.” N.T., at 22.

      The trial court informed Appellant that if that were true he would not

accept the plea. Counsel then stated that he represented Appellant during

the unrelated murder trial, talked about this incident extensively during the


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trial, and went over photographs, videos, and other discovery. The court then

explained that it did not hear anything indicating that counsel was not

prepared, so it denied the motion to substitute counsel. See id. at 28. Finally,

the trial court again asked Appellant whether he was satisfied with counsel’s

representation, to which Appellant responded “Yes.” Id. at 29.

      Upon review, we conclude that because Appellant did not show

irreconcilable differences between himself and counsel, the trial court did not

abuse its discretion in denying Appellant’s motion to substitute counsel. See

Floyd, 937 A.2d at 497. Thus, the second issue does not merit relief.

      After independent review, we determine that there are no other non-

frivolous bases for appeal, and this appeal is wholly frivolous. See Lilley, 978

A.2d at 998. Therefore, we grant counsel leave to withdraw and affirm the

judgment of sentence.

     Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/27/19




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