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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :    IN THE SUPERIOR COURT OF
                                       :          PENNSYLVANIA
                  v.                   :
                                       :
HERMAN GUNTHER,                        :         No. 1749 EDA 2014
                                       :
                       Appellant       :


          Appeal from the Judgment of Sentence, April 11, 2014,
           in the Court of Common Pleas of Philadelphia County
             Criminal Division at No. CP-51-CR-0008316-2011


BEFORE: FORD ELLIOTT, P.J.E. DONOHUE AND LAZARUS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED JULY 07, 2015

     This is an appeal from the judgment of sentence entered in the Court

of Common Pleas of Philadelphia County following appellant’s conviction for

attempted sexual assault and stalking.1 Appointed counsel, Robert Trimble,

Esq., has filed a petition to withdraw, alleging that the appeal is wholly

frivolous, accompanied by an Anders brief.2       We will grant counsel’s

withdrawal petition and affirm the judgment of sentence.

     On the morning of June 14, 2011, appellant accosted a female

employee of Max Studio Clothing Store on Walnut Street in Philadelphia. At



1
   18 Pa.C.S.A. §§ 901, 3124.1 (attempt, sexual assault), and 2709.1
(stalking).
2
 See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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that time, appellant crudely asked the victim if he could perform oral sex on

her; he then pushed her against a counter, pulled her dress above her waist,

and grabbed her buttocks. Fortunately, the victim screamed and a passerby

came to her assistance.        Appellant was subsequently charged with

attempted rape, attempted sexual assault, aggravated indecent assault,

indecent assault, simple assault, false imprisonment, stalking, harassment,

and defiant trespass.

     On November 25, 2013, pursuant to an open guilty plea agreement,

appellant pleaded guilty to attempted sexual assault and stalking, and the

Commonwealth nolle prossed the remaining charges. On April 11, 2014,

the court imposed an aggregate sentence of 6 to 12 years’ imprisonment

followed by 3 years’ probation.    Post-sentence motions, which included a

motion to withdraw the guilty plea and a motion for reconsideration of

sentence, were denied on May 29, 2014, and a timely notice of appeal was

filed on June 16, 2014.    In response to the trial court’s order to file a

statement of errors complained of on appeal, appellant’s counsel filed a

concise statement raising three issues:       1) whether the sentence was

excessive; 2) whether the court erred in denying appellant permission to

withdraw his plea; and 3) whether the court erred in denying appellant’s

motion for reconsideration of his sentence.

     On August 27, 2014, appellant’s counsel filed in this court a motion to

withdraw as counsel and an Anders brief, wherein counsel states there are



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no non-frivolous issues preserved for our review. “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.

Daniels, 999 A.2d 590, 593 (Pa.Super. 2010), citing Commonwealth v.

Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007) (en banc) (citation

omitted).

            In order for counsel to withdraw from an appeal
            pursuant to Anders, certain requirements must be
            met, and 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.

Id., quoting Santiago, 978 A.2d at 361.

     Our review of Attorney Trimble’s application to withdraw, supporting

documentation, and Anders brief reveals that he has complied with all of

the foregoing requirements. We note that counsel also furnished a copy of

the brief to appellant, advised him of his right to retain new counsel,



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proceed pro se, or raise any additional points that he deems worthy of this

court’s attention, and attached to the Anders petition a copy of the letter

sent to appellant as required under Commonwealth v. Millisock, 873 A.2d

748, 751 (Pa.Super. 2005).      See Daniels, 999 A.2d at 594 (“While the

Supreme Court in Santiago set forth the new requirements for an Anders

brief, which are quoted above, the holding did not abrogate the notice

requirements set forth in Millisock that remain binding legal precedent.”).

As Attorney Trimble has complied with all of the requirements set forth

above, we conclude that counsel has satisfied the procedural requirements

of Anders.

      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.

      The first issue put forward by counsel as having possible merit

contends that the sentence imposed was excessive, which raises the

discretionary aspects of appellant’s sentence. “It is firmly established that a

plea of guilty generally amounts to a waiver of all defects and defenses

except those concerning the jurisdiction of the court, the legality of

sentence, and the validity of the guilty plea.”               Commonwealth v.

Dalberto, 648 A.2d 16, 18 (Pa.Super. 1994), appeal denied, 655 A.2d 983



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(Pa. 1995), cert. denied, Dalberto v. Pennsylvania, 516 U.S. 818

(1995). The Dalberto court went on to hold that the discretionary aspects

of sentence could be contested following a guilty plea only where the plea

was open and the terms of the sentence were not negotiated. Id. at 18-22.

As the instant sentence was the result of an open guilty plea, appellant may

challenge the discretionary aspects of his sentence.

                  The right to appellate review of the
            discretionary aspects of a sentence is not absolute
            and must be considered a petition for permission to
            appeal. [Commonwealth v.] Hoch, 936 A.2d [515
            (Pa.Super. 2008)] at 518. An appellant must satisfy
            a four-part test to invoke this Court’s jurisdiction
            when challenging the discretionary aspects of a
            sentence. We must consider:

                  (1) whether appellant has filed a timely
                  notice of appeal; (2) whether the issue
                  was properly preserved at sentencing or
                  in a motion to reconsider and modify
                  sentence; (3) whether appellant’s brief
                  has a fatal defect; and (4) whether there
                  is a substantial question that the
                  sentence     appealed    from    is   not
                  appropriate under the Sentencing Code.

Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa.Super. 2015).

      We agree with counsel’s analysis that appellant cannot present a

substantial question in this regard. The trial court announced at sentencing

that there was a pre-sentence report, and that it had considered it. (Notes

of testimony, 4/11/14 at 4, 16.)    As such, the court is presumed to have

considered all relevant sentencing factors:




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            Where pre-sentence reports exist, we shall continue
            to presume that the sentencing judge was aware of
            relevant information regarding the defendant’s
            character and weighed those considerations along
            with mitigating statutory factors. A pre-sentence
            report constitutes the record and speaks for itself.
            In order to dispel any lingering doubt as to our
            intention of engaging in an effort of legal purification,
            we state clearly that sentencers are under no
            compulsion to employ checklists or any extended or
            systematic definitions of their punishment procedure.
            Having been fully informed by the pre-sentence
            report, the sentencing court’s discretion should not
            be disturbed. This is particularly true, we repeat, in
            those circumstances where it can be demonstrated
            that the judge had any degree of awareness of the
            sentencing considerations, and there we will
            presume also that the weighing process took place in
            a meaningful fashion. It would be foolish, indeed, to
            take the position that if a court is in possession of
            the facts, it will fail to apply them to the case at
            hand.

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988).               Consequently,

appellant can raise no claim that the court failed to consider any proper

sentencing factor.

      We have also reviewed the sentencing transcript. There is nothing in

it that indicates that the trial court considered any improper sentencing

factor; thus, appellant could not raise a substantial question on that basis.

      Finally, although appellant was subjected to consecutive sentences,

the aggregate sentence does not amount to a sentence that is clearly

unreasonable and meriting resentencing. See Commonwealth v. Dodge,

957 A.2d 1198 (Pa.Super. 2008), appeal denied, 980 A.2d 605 (Pa. 2009).




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      In the second issue raised by the concise statement, appellant

contended that the trial court erred in not permitting him to withdraw his

plea. This issue is likewise frivolous. After a court has imposed a sentence,

a defendant can withdraw his guilty plea only where necessary to correct a

manifest injustice.    Commonwealth v. Prendes, 97 A.3d 337, 352

(Pa.Super. 2014), appeal denied, 105 A.3d 736 (Pa. 2014).               There is

nothing here that indicates a manifest injustice.

                  To be valid, a guilty plea must be knowingly,
            voluntarily       and        intelligently      entered.
            Commonwealth v. Pollard, 832 A.2d 517, 522
            (Pa.Super.2003).      “[A] manifest injustice occurs
            when a plea is not tendered knowingly, intelligently,
            voluntarily, and understandingly.” Commonwealth
            v. Gunter, 565 Pa. 79, 84, 771 A.2d 767, 771
            (2001).      The Pennsylvania Rules of Criminal
            Procedure mandate pleas be taken in open court and
            require the court to conduct an on-the-record
            colloquy to ascertain whether a defendant is aware
            of his rights and the consequences of his plea.
            Commonwealth v. Hodges, 789 A.2d 764, 765
            (Pa.Super.2002) (citing Pa.R.Crim.P. 590). Under
            Rule 590, the court should confirm, inter alia, that a
            defendant understands:         (1) the nature of the
            charges to which he is pleading guilty; (2) the
            factual basis for the plea; (3) he is giving up his right
            to trial by jury; (4) and the presumption of
            innocence; (5) he is aware of the permissible ranges
            of sentences and fines possible; and (6) the court is
            not bound by the terms of the agreement unless the
            court accepts the plea.            Commonwealth v.
            Watson, 835 A.2d 786 (Pa.Super.2003).                The
            reviewing Court will evaluate the adequacy of the
            plea colloquy and the voluntariness of the resulting
            plea by examining the totality of the circumstances
            surrounding the entry of that plea. Commonwealth
            v. Muhammad, 794 A.2d 378 (Pa.Super.2002).
            Pennsylvania law presumes a defendant who entered


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            a guilty plea was aware of what he was doing, and
            the defendant bears the burden of proving
            otherwise. Pollard, supra.

Id.

      We have reviewed the guilty plea colloquy and find that the required

information was imparted to appellant. Moreover, there is nothing of record

that indicates that appellant’s plea was not tendered knowingly, intelligently,

voluntarily, and understandingly. Therefore, we agree with counsel that any

issue raised with regard to the court’s decision not to allow appellant to

withdraw his plea would be frivolous.

      Finally, appellant’s concise statement contends that the trial court

erred in denying the motion to reconsider sentence.         We have already

examined appellant’s sentence as to its discretionary aspects and found that

there is no possible challenge that raises a substantial question that the

sentence was not appropriate under the Sentencing Code.         At sentencing,

the trial court noted its concern with appellant’s mental health issues, his

lengthy criminal history, and the need to protect the public from appellant.

(Notes of testimony, 4/11/14 at 16-18.)       Moreover, the trial court was

apprised as to all sentencing factors. We see no basis whatsoever for finding

that the trial court erred in failing to reconsider its already well-considered

sentence. This issue is likewise frivolous.

      In sum, we find this appeal to be wholly frivolous, and our

independent review of the entire record has not disclosed any other



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potentially non-frivolous issues.   Consequently, we grant counsel’s petition

to withdraw, and we affirm the judgment of sentence.

      Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/7/2015




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