J-S14028-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MIGUEL GONZALEZ                            :
                                               :
                       Appellant               :   No. 502 EDA 2018

             Appeal from the Judgment of Sentence April 23, 2014
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0013833-2013


BEFORE:      LAZARUS, J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY NICHOLS, J.:                             FILED AUGUST 19, 2019

        Appellant Miguel Gonzalez appeals from the judgment of sentence

imposed following his guilty pleas to third-degree murder, criminal conspiracy,

and a violation of the Uniform Firearms Act (VUFA).1 Appellant’s counsel has

filed a petition to withdraw and an Anders/Santiago2 brief. We affirm and

grant counsel’s petition to withdraw.

        The relevant facts and procedural history of this appeal are as follows.

Appellant and his cohort, Desiree Hicks, developed a plan to kill the victim,

who was Ms. Hicks’ boyfriend. On May 31, 2012, Appellant shot and killed the

victim.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. §§ 2502(c), 903, and 6108, respectively.

2Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
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      On April 23, 2014, Appellant executed a written guilty plea colloquy for

the offenses of third-degree murder, conspiracy, and VUFA. In relevant part,

the written colloquy indicated that the Commonwealth agreed to recommend

an aggregate sentence of not more than thirty to sixty years’ imprisonment.

The Commonwealth further agreed to drop all remaining charges in exchange

for Appellant’s pleas.

      Also on April 23, 2014, the trial court conducted an oral colloquy. During

the oral colloquy, the trial court elaborated on Appellant’s sentencing

exposure:

      THE COURT: All right. The district attorney is promising to do two
      things in return for your plea.

      First of all, they are making a . . . sentencing recommendation
      which I will follow if I accept your guilty plea. And that is a
      recommendation for a total sentence of not less than 30, no more
      than 60 years in jail. They are agreeing not to proceed on the
      first-degree murder charge, which if you were convicted of would
      result in a sentence of life imprisonment without the possibility of
      parole. Do you understand that?

      [Appellant]: Yes.

      THE COURT: Okay. The maximum sentence you could receive for
      these offenses, all of these three offenses together, the maximum
      the law would permit is up to 85 years in jail and fines of up to
      $85,000. So the recommended sentence and the sentence that I
      will impose is obviously below the legal maximum. Do you
      understand that?

      [Appellant]: Yes.




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N.T., 4/23/14, at 7-8. Additionally, Appellant indicated that he had discussed

the facts of his case with plea counsel and he was satisfied with the legal

representation. See id. at 9.

        At the conclusion of the oral colloquy, the trial court accepted Appellant’s

negotiated guilty plea.       Appellant waived a presentence investigation and

proceeded immediately to sentencing. The trial court sentenced Appellant to

twenty to forty years’ imprisonment for the third-degree murder conviction,

followed by a consecutive term of ten to twenty years’ imprisonment for the

conspiracy conviction. The trial court imposed no further penalty for the VUFA

conviction.      Therefore, the aggregate term of thirty to sixty years’

imprisonment      matched      the   Commonwealth’s       recommended   sentence.3

Appellant did not file post-sentence motions or a notice of appeal.

        Appellant timely filed a pro se petition for relief under the Post

Conviction Relief Act4 (PCRA), which was postmarked on February 23, 2015.

The PCRA court appointed counsel (appointed counsel), who filed an amended

PCRA petition on August 5, 2017.               On January 19, 2018, the PCRA court

granted relief and reinstated Appellant’s right to file a direct appeal nunc pro

tunc within thirty days.

        Appointed counsel timely filed the notice of appeal nunc pro tunc on

Appellant’s behalf on February 14, 2018. Thereafter, appointed counsel filed
____________________________________________


3 After imposing the sentence, the trial court asked Appellant, “Do you
understand the sentence, sir?” N.T. at 30. Appellant responded, “Yes.” Id.

4   42 Pa.C.S. §§ 9541-9546.

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a statement of intent to file an Anders/Santiago brief, pursuant to Pa.R.A.P.

1925(c)(4).   The trial court accepted the Rule 1925(c)(4) statement and

concluded that Appellant did not have any meritorious appellate issues. See

Trial Ct. Op., 7/10/18, at 1-2.

      Appointed counsel filed the Anders/Santiago brief on August 19, 2018

and a separate petition to withdraw on August 20, 2018.              Appellant

subsequently filed multiple applications seeking extensions of time to file a

pro se response to counsel’s Anders/Santiago brief.            In his various

applications, Appellant insisted that appointed counsel did not provide him

with a copy of the Anders/Santiago brief, and Appellant could not file an

adequate pro se response without it.

      On June 3, 2019, this Court ordered appointed counsel to send Appellant

copies of the Anders/Santiago brief, the withdrawal petition, and a letter

explaining Appellant’s right to retain new counsel or proceed pro se to raise

additional appellate issues. This Court directed appointed counsel to comply

with its order within seven days, and we instructed appointed counsel to

provide this Court with proof of compliance.       Additionally, we provided

Appellant with thirty days from the date of appointed counsel’s compliance to

file a pro se response to the Anders/Santiago brief.

      Appointed counsel filed a response to this Court’s order on June 7, 2019,

which included post office receipts and package tracking information.      The

postal service paperwork indicated that the expected date of delivery for the

Anders materials to Appellant was June 7, 2019. Appellant, however, has

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not filed a pro se response to the Anders/Santiago brief, and he has not

requested an additional extension of time.

      Appointed counsel’s Anders/Santiago brief identifies five issues, which

we have reordered as follows:

      1. Whether the Appellant’s negotiated guilty plea was knowingly,
      intelligently, and voluntarily made when the [trial] court did not
      explain to the Appellant that his sentence would be consecutive,
      and the Appellant thought consecutive and concurrent meant the
      same thing.

      2. Whether the Appellant can withdraw his negotiated guilty plea.

      3. Whether the Appellant’s sentence was illegal under mandatory
      sentencing guidelines.

      4. Whether the Appellant can have his sentence corrected.

      5. Whether [plea] counsel was ineffective for failing to withdraw
      as counsel and failing to file an appeal.

Anders/Santiago Brief at 4.

      “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.

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



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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).

     Here, appointed 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,

appointed counsel’s Anders/Santiago brief complies with the requirements

of Santiago. Appointed counsel includes a summary of the relevant factual

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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. Additionally, appointed counsel explains his reasoning and supports

his rationale with citations to the record and pertinent legal authority.

Accordingly, we conclude that appointed counsel has met the technical

requirements of Anders and Santiago, and we will proceed to address the

issue raised in the Anders/Santiago brief.

      In his first two issues, appointed counsel suggests that Appellant did not

enter a knowing, intelligent, or voluntary guilty plea, because the oral colloquy

did not specifically inform Appellant “that his sentence was going to be a

consecutive sentence totaling 30-60 years’ incarceration.” Anders/Santiago

Brief at 8-9. Appointed counsel also states that Appellant did not understand

the sentence because Appellant “thought consecutive and concurrent meant

the same thing.”    Id. at 9.   Based upon the foregoing, appointed counsel

submits that Appellant wishes to withdraw his guilty plea. Id. at 11.

      “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


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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.”

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

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     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-

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.

     Instantly, Appellant did not challenge the voluntariness of his guilty

pleas during the plea colloquy or in a post-sentence motion seeking to

withdraw the pleas.    Consequently, Appellant’s current challenge to the

voluntariness of the pleas, as well as his request to withdraw the pleas, are

waived. See Lincoln, 72 A.3d at 609-10.




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      Even if Appellant had not waived his claims, no relief is due. The written

and oral colloquies emphasized that Appellant faced a maximum aggregate

sentence of eighty-five years’ imprisonment, despite the fact that the

Commonwealth recommended a maximum aggregate sentence of sixty years’

imprisonment. Nevertheless, the trial court also informed Appellant that it

intended to abide by the Commonwealth’s recommendation of a sixty-year

maximum aggregate sentence if it accepted Appellant’s pleas.

      Although Appellant now argues that he did not understand the sentence

and he did not know the meaning of the words “consecutive” and “concurrent,”

the record undermines his claim. The colloquies reveal Appellant’s awareness

of the sentencing alternatives and his understanding of the sentence imposed.

Appellant is bound by his statements made at the colloquy, which demonstrate

that he knowingly entered the guilty pleas. See Pollard, 832 A.2d at 523.

      In his third and fourth issues, appointed counsel advances Appellant’s

claim that the trial court imposed illegal sentences that must be corrected.

Anders/Santiago Brief at 10.

      “A claim that implicates the fundamental legal authority of the court to

impose a particular sentence constitutes a challenge to the legality of the

sentence,” which is non-waivable where the reviewing court has jurisdiction.

Commonwealth v. Infante, 63 A.3d 358, 363 (Pa. Super. 2013). “If no

statutory authorization exists for a particular sentence, that sentence is illegal

and subject to correction.” Id. (citations omitted). “We review the legality of




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a sentence de novo and our scope of review is plenary.” Commonwealth v.

Butler, 173 A.3d 1212, 1215 (Pa. Super. 2017) (citation omitted).

      Section 1102(c) of the Crimes Code states that “a person who has been

convicted of . . . conspiracy to commit murder . . . may be sentenced to a

term of imprisonment which shall be fixed by the court at not more than forty

years.” 18 Pa.C.S. § 1102(c). “Where serious bodily injury does not result,

the person may be sentenced to a term of imprisonment which shall be fixed

by the court at not more than 20 years.” Id. Likewise, “a person who has

been convicted of murder of the third degree . . . shall be sentenced to a term

which shall be fixed by the court at not more than 40 years.” 18 Pa.C.S. §

1102(d).

      Instantly, the trial court sentenced Appellant to twenty to forty years’

imprisonment for the third-degree murder conviction, followed by a

consecutive term of ten to twenty years’ imprisonment for the conspiracy

conviction.   These sentences did not exceed the statutory maximums for

conspiracy and third-degree murder. See 18 Pa.C.S. § 1102(c)-(d). Because

the trial court possessed the legal authority to impose the sentences at issue,

Appellant’s challenge to the legality of the sentences must fail. See Butler,

173 A.3d at 1215; Infante, 63 A.3d at 363.

      In his fifth issue, appointed counsel identifies a challenge to the

effectiveness of plea counsel. Anders/Santiago Brief at 10.

      Generally, a criminal defendant may not assert claims of ineffective

assistance of counsel on direct appeal. See Commonwealth v. Holmes, 79

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A.3d 562, 577-80 (Pa. 2013). Instead, such claims are to be deferred to PCRA

review. Id.

      However, our Supreme Court has recognized three exceptions to the

general rule.   In Holmes, the Supreme Court held that a trial court has

discretion to address ineffectiveness claims on direct review in cases where

(1)   there   are   extraordinary   circumstances   in   which   trial   counsel’s

ineffectiveness is apparent from the record and “meritorious to the extent that

immediate consideration best serves the interests of justice[;]” or (2) there is

good cause shown and the defendant knowingly and expressly waives his

entitlement to seek subsequent PCRA review of his conviction and sentence.

Holmes, 79 A.3d at 563-64. More recently, our Supreme Court adopted a

third exception, which requires “trial courts to address claims challenging trial

counsel’s performance where the defendant is statutorily precluded from

obtaining subsequent PCRA review.” Commonwealth v. Delgros, 183 A.3d

352, 361 (Pa. 2018) (citations omitted).

      Here, the record does not indicate that extraordinary circumstances

exist, or that Appellant waived his right to PCRA review. See Holmes, 79

A.3d at 577. Further, Appellant is not statutorily barred from seeking PCRA

relief. See Delgros, 183 A.3d at 361.

      Because our independent review of the record confirms that none of the

exceptions apply, we agree with appointed counsel’s conclusion that no relief

is due on this issue. Moreover, the record does not reveal any additional, non-




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frivolous issues 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: 8/19/19




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