J-S13013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

HYKEEM DAVIS,

                            Appellant                 No. 1641 EDA 2016

      Appeal from the Judgment of Sentence Entered December 16, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0002632-2015

BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                          FILED APRIL 18, 2017

        Appellant, Hykeem Davis, appeals from the judgment of sentence of 1

to 23 months’ incarceration, followed by 2 years’ probation, imposed after

he pled guilty to simple assault and resisting arrest. On appeal, Appellant

seeks to challenge the trial court’s denial of his post-sentence motion to

withdraw his guilty plea. However, his counsel, David M. Simon, Esq., has

concluded that this claim is frivolous and, therefore, counsel has filed a

petition to withdraw his representation of Appellant pursuant to Anders v.

California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009). After careful review, we affirm Appellant’s judgment of

sentence and grant counsel’s petition to withdraw.


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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      We briefly summarize the facts underlying Appellant’s conviction as

follows.   On February 26, 2015, at approximately 7:00 a.m., a Temple

University Police Officer observed Appellant commit multiple motor vehicle

infractions, including traveling through a red traffic signal and failing to stop

at a stop sign. See Trial Court Opinion (TCO), 9/15/16, at 2 (unnumbered;

citation to the record omitted). The officer called for backup, and with the

assistance of two other officers, they conducted a traffic stop of Appellant’s

vehicle.   Id.    During the stop, Appellant became irate and began to drive

away, running over one officer’s foot. Id. After a short pursuit, the officers

were able to force Appellant to stop his vehicle. Id. Appellant then exited

his car, aggressively approached the officers, and resisted as they attempted

to arrest him. Id. Ultimately, it took several officers to subdue Appellant

and place him into custody. Id.

      On December 16, 2015, Appellant, who was represented by Attorney

Simon, entered a negotiated guilty plea, by which he pled guilty to resisting

arrest and simple assault in exchange for a sentence of 1 to 23 months’

incarceration with immediate parole, followed by a term of 2 years’

probation.       Shortly thereafter, Appellant filed a post-sentence motion

seeking to withdraw his plea.     “The basis for seeking withdrawal was the

decision of the Probation Department to place [Appellant] on high-risk

probation, which he asserted included unspecified ‘additional obligations

above and beyond the negotiated sentence.’” TCO at 3 (unnumbered). On




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April 21, 2016, Appellant’s motion to withdraw his guilty plea was denied by

operation of law.

      Appellant filed a timely notice of appeal.   On June 6, 2016, the trial

court issued an order directing Appellant to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. That order informed Appellant

that “[a]ny issue not properly included in the statement, timely filed and

served, shall be deemed waived.” Trial Court Order, 6/6/16. Nevertheless,

Appellant’s counsel, Attorney Simon, never filed a Rule 1925(b) statement

on Appellant’s behalf. On September 15, 2016, the trial court filed a Rule

1925(a) opinion, concluding that Appellant had waived any issue(s) he

sought to raise on appeal. See TCO at 3 (unnumbered). Nevertheless, the

court provided an alternative analysis of the issue Appellant presented in his

post-sentence motion to withdraw his guilty plea, concluding that it is

meritless. See id. at 3-5 (unnumbered).

      On December 11, 2016, Attorney Simon filed with this Court a petition

to withdraw from representing Appellant. He has also filed an Anders brief,

asserting that the issue Appellant raised in his post-sentence motion to

withdraw his guilty plea is frivolous, and that Appellant has no other, non-

frivolous issues he could assert on appeal.

      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).




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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 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 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, this Court must then “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).

     In this case, Attorney Simon’s Anders brief complies with the above-

stated requirements. Namely, he includes a summary of the relevant factual

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



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arguably support Appellant’s claim, and he sets forth his conclusion that

Appellant’s appeal is frivolous. He also explains his reasons for reaching that

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

pertinent legal authority.   Attorney Simon also states in his petition to

withdraw that he has supplied Appellant with a copy of his Anders brief, and

he attaches a letter directed to Appellant in which he informs him of the

rights enumerated in Nischan. Accordingly, counsel has complied with the

technical requirements for withdrawal. We must now independently review

the record to determine if Appellant’s issue is frivolous, and to ascertain if

there are any other, non-frivolous issues Appellant could pursue on appeal.

      Preliminarily, however, we chastise Attorney Simon for not filing a Rule

1925(b) statement on Appellant’s behalf, or a Rule 1925(c)(4) statement of

his intent to file an Anders brief and petition to withdraw. Attorney Simon’s

failure in this regard constitutes per se ineffectiveness, and we could remand

under Rule 1925(c)(3) for counsel to file a statement nunc pro tunc.

However, we decline to do so in this case, as the trial court addressed in its

Rule 1925(a) opinion the only issue Appellant seeks to raise on appeal. See

Commonwealth v. Thompson, 39 A.3d 335, 340 (Pa. Super. 2012)

(stating that, where the trial court has addressed the issues sought to be

raised on appeal, we need not remand for the filing of a concise statement

nunc pro tunc).

      In that issue, Appellant contends that the trial court should have

granted his post-sentence motion to withdraw his guilty plea. We begin by

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recognizing that a post-sentence motion to withdraw a guilty plea is “subject

to higher scrutiny” than a pre-sentence withdrawal motion, “since courts

strive to discourage entry of guilty pleas as sentence-testing devices.”

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

(citation omitted).    “A defendant must demonstrate that manifest injustice

would result if the court were to deny his post-sentence motion to withdraw

a guilty plea.” Id. (citation omitted). “Manifest injustice may be established

if the plea was not tendered knowingly, intelligently, and voluntarily.”      Id.

(citations omitted).

         In Appellant’s post-sentence motion, which was drafted by Attorney

Simon, counsel averred that Appellant should be permitted to withdraw his

guilty    plea   because   the   probation   department   has   imposed   stricter

conditions on Appellant’s term of probation than he anticipated he would

receive.     However, Attorney Simon never explicitly stated what those

stricter conditions are; instead, counsel simply declared that Appellant has

been placed on “high-risk probation” and, “[a]s a result…, he must fulfill

additional obligations above and beyond the negotiated sentence.”           Post-

Sentence Motion, 12/23/15, at 2. Because Attorney Simon failed to identify

the specific, ‘additional obligations’ that have ostensibly been imposed upon

Appellant, we cannot concluded that Appellant’s negotiated plea agreement

was violated.     Therefore, the trial court did not err in denying Appellant’s

post-sentence motion to withdraw his guilty plea.




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       In sum, based on Attorney Simon’s own insufficient pleading in

Appellant’s post-sentence motion, we are compelled to deem frivolous the

issue Appellant now seeks to raise on appeal.1 Additionally, our independent

review of the record reveals no other, non-frivolous issues that Appellant

could raise herein. Thus, we affirm his judgment of sentence and reluctantly

grant Attorney Simon’s petition to withdraw.

       Judgment of sentence affirmed.            Petition to withdraw granted.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/18/2017




____________________________________________


1
  While we express no opinion on the merits of the matter, we note that
Appellant can challenge the effectiveness of Attorney Simon’s representation
in a timely-filed petition under the Post Conviction Relief Act (PCRA), 42
Pa.C.S. §§ 9541-9546.



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