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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellee

                        v.

    TIMOTHY CHARLES BICKHAM, JR.

                             Appellant               No. 1862 MDA 2019


        Appeal from the Judgment of Sentence Entered August 21, 2019
           In the Court of Common Pleas of the 39th Judicial District
                             Franklin County Branch
               Criminal Division at No.: CP-28-CR-0001395-2019

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellee

                        v.

    TIMOTHY CHARLES BICKHAM, JR.

                             Appellant               No. 1863 MDA 2019


        Appeal from the Judgment of Sentence Entered August 21, 2019
           In the Court of Common Pleas of the 39th Judicial District
                             Franklin County Branch
               Criminal Division at No.: CP-28-CR-0001339-2019


BEFORE: STABILE, J., DUBOW, J., and PELLEGRINI, J.*

MEMORANDUM BY STABILE, J.:                             FILED JUNE 16, 2020

        Appellant Timothy Charles Bickham, Jr. appeals from the August 21,

2019 judgments of sentence of the Court of Common Pleas of the 39th Judicial


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*   Retired Senior Judge assigned to the Superior Court.
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District, Franklin County Branch (“trial court”), following the denial of his post-

sentence motion to withdraw his guilty pleas. His counsel has filed a brief and

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

(1969), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon

review, we affirm the judgments of sentence and grant counsel’s applications

to withdraw.

        On July 19, 2019, at docket number 1339 (“First Case”), Appellant was

charged with possession with intent to deliver (“PWID”) a controlled substance

(cocaine), possession of a small amount of marijuana, and use or possession

of drug paraphernalia.1 On August 12, 2019, during the pendency of the First

Case, Appellant was charged with aggravated assault and simple assault at

docket number 1395 (“Second Case”). 2            On August 21, 2019, Appellant

entered into negotiated guilty pleas in both cases. Specifically, he pleaded

guilty to simple possession3 and possession of drug paraphernalia in the First

Case and simple assault in the Second Case. With respect to the First Case,

Appellant agreed to a term of 15 to 36 months’ imprisonment for simple

possession followed by a term of 12 months’ probation for possession of drug

paraphernalia. In the Second Case, Appellant agreed to a term of 6 to 24



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1   35 P.S. § 780-113(a)(30), (31) and (32), respectively.

2   18 Pa.C.S.A. §§ 2702(a)(1) and 2701(a)(1).
3The Commonwealth amended and reduced the PWID charge to simple
possession under 35 P.S. § 780-113(a)(16).

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months’ imprisonment for simple assault to be served concurrently with his

sentence for simple possession imposed in the First Case.

      On August 30, 2019, Appellant filed a post-sentence motion to withdraw

his guilty pleas in both cases. In support of his motion, Appellant alleged,

inter alia, that:

      [1.] it was a conflict of interest for Ian Brink, Chief Deputy District
      Attorney to have represented the Commonwealth in the case
      against him because Attorney Brink represented him in two prior
      cases while he was employed with the Public Defenders’ Office.

      [2.] he was entitled to have and review full discovery at the time
      of his preliminary hearing.

      [3.] the oral offer made to him at the time of his preliminary
      hearing was different from the written offer included in the guilty
      plea colloquy he was provided with at his arraignment. Although,
      at the time of his arraignment, he still chose to accept and sign
      the written guilty plea colloquy, and was sentenced in accordance
      with at the time of plea and sentencing.

Motion to Withdraw, 8/30/19, at ¶ 7. The trial court conducted a hearing on

September 27, 2019. At the hearing, Appellant testified that he previously

was represented by Attorney Brink, who was his public defender on a case

involving a PWID charge. N.T. Hearing, 9/27/19, at 5. Here, there was no

dispute that Attorney Brink represented the Commonwealth in the underlying

cases. Id. at 6. At the hearing, Appellant’s counsel conceded that Appellant

was “not entitled to full discovery at a preliminary hearing and was provided

full discovery prior to the guilty plea.” Id. at 13; see Pa.R.Crim.P. 573(A).

As a result, his counsel abandoned this argument as a basis for seeking the

withdrawal of Appellant’s guilty pleas. On October 15, 2019, the trial court


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denied Appellant’s post-sentence motion to withdraw his guilty pleas.

Appellant timely appealed. Both Appellant and the trial court complied with

Pa.R.A.P. 1925.

      On January 21, 2020, Appellant’s counsel filed in this Court applications

to withdraw as counsel and filed an Anders brief, wherein counsel challenged

the denial of Appellant’s post-sentence motion to withdraw the guilty pleas.

Anders Brief at 7.

      When presented with an Anders brief, this Court may not review the

merits of the underlying issues without first examining counsel’s petition to

withdraw.    Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.

2007) (en banc).     It is well-established that, in requesting a withdrawal,

counsel must satisfy the following procedural requirements: 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) provide a copy of the brief to the defendant; and 3) advise the

defendant that he or she has the right to retain private counsel, proceed pro

se or raise additional arguments that the defendant considers worthy of the

court’s addition. Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.

2009).

      Instantly, counsel’s applications to withdraw from representation

provide that counsel reviewed the record and concluded that the appeal is

frivolous.   Furthermore, counsel notified Appellant that he was seeking

permission to withdraw and provided Appellant with copies of the applications

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to withdraw and his Anders brief. Counsel also advised Appellant of his right

to retain new counsel, proceed pro se, or raise any additional points he deems

worthy of this Court’s attention. Accordingly, we conclude that counsel has

satisfied the procedural requirements of Anders.

      We next must determine whether counsel’s Anders brief complies with

the substantive requirements of Santiago, wherein our Supreme Court held:

      [I]n the Anders brief that accompanies court-appointed counsel’s
      petition to withdraw, counsel 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. Here, our review of counsel’s brief indicates that

he has complied with the briefing requirements of Santiago. We, therefore,

conclude   that   counsel   has   satisfied   the   minimum   requirements    of

Anders/Santiago.

      Once counsel has met his obligations, “it then becomes the responsibility

of the reviewing court to make a full examination of the proceedings and make

an independent judgment to decide whether the appeal is in fact wholly

frivolous.” Santiago, 978 A.2d at 355 n.5. Thus, we now turn to the merits

of Appellant’s appeal.

      Appellant argues that the trial court abused its discretion in denying his

post-sentence motion to withdraw his guilty pleas. It is well-settled that the

decision whether to permit a defendant to withdraw a guilty plea is within the


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sound discretion of the trial court. Commonwealth v. Unangst, 71 A.3d

1017, 1019 (Pa. Super. 2013) (quotation omitted); see Commonwealth v.

Broaden, 980 A.2d 124, 128 (Pa. Super. 2009) (noting that we review a trial

court’s order denying a motion to withdraw a guilty plea for an abuse of

discretion), appeal denied, 992 A.2d 885 (Pa. 2010). 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

sentencing, he “must demonstrate prejudice on the order of manifest

injustice.” Commonwealth v. Yeomans, 24 A.3d 1044, 1046 (Pa. Super.

2011) (emphasis added). In Commonwealth v. Prendes, 97 A.3d 337, 352

(Pa.   Super.   2014),   impliedly   overruled    on    other   grounds     by

Commonwealth v. Hvizda, 116 A.3d 1103, 1106 (Pa. 2015), we explained

that a defendant may withdraw his guilty plea after sentencing “only where

necessary to correct manifest injustice.” Prendes, 97 A.3d at 352 (citation

omitted). “Manifest injustice occurs when the plea is not tendered knowingly,

intelligently, voluntarily, and understandingly.” Commonwealth v. Kpou,

153 A.3d 1020, 1023 (Pa. Super. 2016) (citation omitted).         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.”

Commonwealth v. Flick, 802 A.2d 620, 623 (Pa. Super. 2002).                 In

determining whether a plea is valid, the court must examine the totality of

circumstances surrounding the plea.     Id.   “Pennsylvania law presumes a

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defendant who entered a guilty plea was aware of what he was doing, and the

defendant bears the burden of proving otherwise.” Id.

      Instantly, after careful review of the record, and the relevant case law,

we conclude that the trial court accurately and thoroughly addressed the

merits of Appellant’s issue. See Trial Court Opinion, 10/15/19, at 2-8. The

court explained that Appellant failed to establish that Attorney Brink’s prior

representation of him “in any way conflicted with his representation of the

Commonwealth in the instant cases.”            Id. at 3.   The trial court further

concluded that Appellant entered into the negotiated guilty pleas knowingly,

voluntarily and intelligently. He was aware at the time he pleaded guilty that

the guilty plea differed from an earlier guilty plea offer.       Id. at 5.   We,

therefore, cannot conclude that the trial court abused its discretion in denying

Appellant’s post-sentence motion to withdraw his guilty pleas, as he failed to

establish manifest injustice.

      We have conducted an independent review of the record and addressed

Appellant’s argument on appeal. Based on our conclusions above, we agree

with Appellant’s counsel that the guilty plea issues Appellant seeks to litigate

in this appeal are wholly frivolous. Accordingly, we affirm Appellant’s August

21, 2019 judgments of sentence and grant counsel’s applications to withdraw.

We further direct that a copy of the trial court’s October 15, 2019 opinion be

attached to any future filings in this case.




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     Judgments of sentence affirmed. Applications to withdraw granted.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/16/2020




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