J-S06013-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA


                       v.

STEFAN ANTHONY BOURNE

                            Appellant                    No. 558 MDA 2015


           Appeal from the Judgment of Sentence February 23, 2015
                In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0006184-2014


BEFORE: PANELLA, J., MUNDY, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, J.                               FILED MARCH 30, 2016

        Appellant, Stefan Anthony Bourne, appeals from the judgment of

sentence entered by the Honorable Richard K. Renn, Court of Common Pleas

of York County. Additionally, Bourne’s court-appointed counsel, Christopher

D. Moore, Esquire, filed a petition to withdraw as counsel and a brief

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 Attorney Moore’s petition to withdraw.

        The relevant facts and procedural history are as follows. Bourne’s case

was scheduled to proceed to trial; however, after the jury was selected, but


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*
    Former Justice specially assigned to the Superior Court.
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before the trial began, Bourne elected to enter “open” guilty pleas1 to

charges of possession with the intent to deliver a controlled substance 2 and

firearms not to be carried without a license.3 The trial court, the Honorable

Richard K. Renn, subsequently imposed an aggregate term of 3½ to 7 years’

imprisonment.

        On the day of the sentencing, Bourne’s former counsel, Bruce Blocher,

Esquire, filed a motion to reconsider the sentence. Bourne later filed a pro se

motion to withdraw his guilty plea. The trial court denied both motions after

holding a hearing. Thereafter, Bourne filed a direct appeal to this Court and

Attorney    Moore     was     appointed        to   represent    him.   Attorney   Moore

subsequently filed a petition to withdraw as counsel and an Anders brief.

        We begin by addressing Attorney Moore’s petition to withdraw. If

counsel    believes     an   appeal     is     frivolous   and    wishes   to   withdraw

representation on appeal, he must follow certain steps.

           First, counsel must petition the court for leave to withdraw
           and state that after making a conscientious examination of
           the record, he has determined that the appeal is frivolous;
           second, he must file a brief referring to any issues in the
           record of arguable merit; and third, he must furnish a copy
           of the brief to the defendant and advise him of his right to

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1
 An “open” plea agreement does not include a negotiated sentence. See
Commonwealth v. Vega, 850 A.2d 1277, 1280 (Pa. Super. 2004).
2
    35 P.S. § 780-113(a)(30).
3
    18 Pa.C.S.A. § 6106(a)(1).



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         retain new counsel or to himself raise any additional points
         he deems worthy of the Superior Court's attention.

Santiago, 978 A.2d at 351 (citation omitted). Substantial compliance with

these requirements is sufficient. See Commonwealth v. Wrecks, 934 A.2d

1287, 1290 (Pa. Super. 2007). 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 (citation omitted).

      Attorney   Moore     has   substantially   complied   with   the   technical

requirements of Anders as articulated in Santiago. Additionally, Attorney

Moore sent a copy of the Anders brief to Bourne, as well as a letter

explaining to Bourne that he has the right to proceed pro se or retain new

counsel. Bourne has not filed a response.

      We will now conduct an independent evaluation of the record to

determine the accuracy of Attorney Moore’s averment that this appeal is

wholly frivolous. Attorney Moore set forth a single issue in the Anders brief,

namely, “Whether the trial court abused its discretion in denying Appellant’s

motion to withdraw his guilty plea?” Anders Brief, at 4 (unnecessary

capitalization omitted).

      “Our law is clear that, to be valid, a guilty plea must be knowingly,

voluntarily, and intelligently entered.” Commonwealth v. Pollard, 832

A.2d 517, 522 (Pa. Super. 2003) (citation omitted). “There is no absolute

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right to withdraw a guilty plea, and the decision as to whether to allow a

defendant to do so is a matter within the sound discretion of the trial court.”

Id. (citation omitted). A trial court can only grant a post-sentence motion to

withdraw a guilty plea upon a showing of prejudice that amounts to

“manifest injustice.” Commonwealth v. Muhammad, 794 A.2d 378, 383

(Pa. Super. 2002) (citation omitted). “A plea rises to the level of manifest

injustice   when      it   was   entered    into   involuntarily,   unknowingly,   or

unintelligently.” Id. (citation omitted).

      In order for a guilty plea to be constitutionally valid, the guilty
      plea colloquy must affirmatively show that the defendant
      understood what the plea connoted and its consequences. This
      determination is to be made by examining the totality of the
      circumstances surrounding the entry of the plea. A plea of guilty
      will not be deemed invalid if the circumstances surrounding the
      entry of the plea disclose that the defendant had a full
      understanding of the nature and consequences of his plea and
      that he knowingly and voluntarily decided to enter the plea.

Commonwealth v. Rush, 909 A.2d 805, 808 (Pa. Super. 2006) (citation

omitted). “Our law presumes that a defendant who enters a guilty plea was

aware of what he was doing. He bears the burden of proving otherwise.” Id.

(citation omitted).

      This Court cannot overturn a trial court’s order denying a motion to

withdraw a guilty plea absent an abuse of discretion. See Commonwealth

v. Mobley, 581 A.2d 949, 952 (Pa. Super. 1990). In the present case, we

do not discern any abuse of discretion on behalf of the trial court. At the

hearing regarding his pro se motion, Bourne argued that he should be

allowed to withdraw his guilty plea to the firearms not to be carried without

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a license charge because trial counsel did not adequately represent his

interests. See N.T., Hearing, 4/14/15, at 4, 7. This claim, however, does not

merit any relief because claims of ineffectiveness of counsel are generally

not ripe until collateral review, and none of the exceptions to this rule are

applicable in the instant case. See Commonwealth v. Holmes, 79 A.3d

562, 576 (Pa. 2013). We therefore decline to address Bourne’s allegations of

ineffectiveness of counsel at this time.4

       While under oath at the hearing, Bourne also argued that he should be

allowed to withdraw his guilty plea to the firearms not to be carried without

a license charge because the admissions he made during his plea colloquy

were not true. See N.T., Hearing, 4/14/15, at 4, 7, 11. This argument is also

meritless because “[t]he longstanding rule of Pennsylvania law is that a

defendant may not challenge his guilty plea by asserting that he lied while

under oath, even if he avers that counsel induced the lies.” Pollard, 832

A.2d at 523 (citation omitted). If a person elects to plead guilty, “he 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.” Id. (citation omitted). Here,

Bourne explicitly stated during his plea colloquy that he had the firearm in

question on his person. See N.T., Hearing, 4/14/15, at 9. Bourne may not

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4
 Bourne may still raise this claim in a petition timely filed pursuant to the
Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.



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now contradict his sworn testimony in order to obtain relief. See Pollard,

832 A.2d at 523.

      Our review of the record indicates that Bourne was fully apprised of

the consequences of his pleas during his oral colloquy and entered into both

pleas knowingly, voluntarily, and intelligently. After examining the issue

contained in the Anders brief and undertaking our own independent review

of the record, we agree with Attorney Moore’s assessment that the appeal is

wholly frivolous.

      Judgment of sentence affirmed. Permission to withdraw as counsel

granted. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/30/2016




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