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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                          :
CHRISTOPHER FINNEFROCK,                   :         No. 1245 EDA 2018
                                          :
                         Appellant        :


             Appeal from the Judgment of Sentence, April 6, 2018,
               in the Court of Common Pleas of Chester County
               Criminal Division at No. CP-15-CR-0004197-2016


BEFORE: GANTMAN, P.J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED DECEMBER 24, 2018

        Christopher Finnefrock appeals from the April 6, 2018 judgment of

sentence entered in the Court of Common Pleas of Chester County after he

entered guilty pleas to two counts of involuntary deviate sexual intercourse

with a child, one count of unlawful contact with a minor, and one count of

corruption of minors.1 The trial court sentenced appellant to an aggregate

term of imprisonment of eight to sixteen years. Mark Conte, Esq., has filed

an Anders brief,2 with an accompanying petition, alleging that the appeal is




1   18 Pa.C.S.A. §§ 3123(b), 6318(a)(1), and 6301(a)(1)(ii), respectively.

2See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009); Commonwealth v. McClendon, 495
434 A.2d 1185 (Pa. 1981).
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frivolous, and including a request to withdraw.    After careful review, we

grant counsel’s petition to withdraw and affirm the judgment of sentence.

     The trial court set forth the following:

           Appellant was charged with nine (9) counts of Rape
           of Child (18 [Pa.C.S.A.] § 3121(c)), nine (9) counts
           of Involuntary Deviate Sexual Intercourse With a
           Minor (18 Pa.C.S.A. § 3123(b)), nine (9) counts of
           Unlawful Contact With a Minor (18 Pa.C.S.A.
           § 6318(a)(1)), nine (9) counts of Incest of a Minor
           (18 Pa.C.S.A. § 4302(b)(1)), one (1) count of
           Corruption of Minors (18 Pa.C.S.A. §6301(a)(1)(ii)),
           one (1) count of Endangering Welfare of Children
           (18 Pa.C.S.A. § 4304(a)(1)), nine (9) counts of
           Indecent Assault of Person Less Than 13 Years of
           Age (18 Pa.C.S.A. § 3126(a)(7)), nine (9) counts of
           Involuntary Deviate Sexual Intercourse-Serious
           Bodily Injury (18 Pa.C.S.A. § 3123(c)), and nine (9)
           counts     of   Contact/Communication      With    a
           Minor-Sexual Abuse (18 Pa.C.S.A. § 6318(a)(5)).
           The Involuntary Deviate Sexual Intercourse-Serious
           Bodily Injury and Contact/Communication With a
           Minor-Sexual Abuse counts were withdrawn at the
           lower court. The remaining 47 counts were bound
           over for trial.

           Various pre-trial motions were filed by the parties.
           The Commonwealth filed a “Motion to Allow
           Testimony of Out of Court Statement”. A hearing
           was scheduled for May 25, 2017 but continued to
           permit new defense counsel to enter his appearance
           and prepare for the hearing. New defense counsel
           filed a Memorandum in Opposition to the
           Commonwealth’s Motion on August 16, 2017. Upon
           consideration of the evidence presented and
           arguments made at the August 17, 2017 hearing,
           the Commonwealth’s motion was granted in part and
           denied in part. The Commonwealth filed additional
           motions on November 27, 2017: (1) a “Motion in
           Limine to Preclude References to Prior Sexual
           Conduct”, and (2) a “Motion for Testimony by
           Contemporaneous Alternative Method”. A “Motion in


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          Limine to Admit Expert Testimony Regarding Lack of
          Injury to      Victim” was also filed by the
          Commonwealth on February 16, 2018.              After
          discussions held in chambers with both counsel, the
          court deferred its ruling on the Commonwealth’s
          motions until the time of trial.[Footnote 1]
          [Appellant] filed a “Motion in Limine” on
          February 23, 2018 requesting that [appellant] be
          permitted to: (1) cross examine the child victim and
          child witness, and (2) present evidence of the child
          victim’s prior sexual conduct including prior sexual
          assaults. [Appellant’s] “Motion in Limine” was also
          deferred until the commencement of trial.

               [Footnote 1] It was represented to the
               court by the Commonwealth, during the
               chambers     conference,    that   the
               Commonwealth would be withdrawing its
               motion requesting an alternate method
               of testimony for the victim at trial.
               However, no withdrawal was formerly
               made by the Commonwealth subsequent
               to the chambers conference.

          On April 6, 2018 a jury was selected for trial. Prior
          to the court’s rulings on the parties’ pending motions
          and the commencement of trial, the Commonwealth
          and [a]ppellant presented the court with a
          negotiated guilty plea. Appellant pleaded guilty to
          two (2) counts of Involuntary Deviate Sexual
          Intercourse With a Minor (18 Pa.C.S.A. § 3123(b)),
          one (1) count of Unlawful Contact With a Minor
          (18 Pa.C.S.A. §6318(a)(1)), and one (1) count of
          Corruption of Minors (18 Pa.C.S.A. §6301(a)(1)(ii)).
          Appellant was sentenced to an aggregate term of
          8 to 16 years of incarceration on the two (2) counts
          of Involuntary Deviate Sexual Intercourse With a
          Minor (18 Pa.C.S.A. §3123(b)) and 10 years of
          probation on the remaining counts.

          On April 24, 2018, through his appointed defense
          counsel Mark Conte, Esquire, [a]ppellant filed an
          appeal to his April 6, 2018 judgment of sentence.
          On April 25, 2018, the court filed its Rule 1925(b)


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            Order. Subsequently, on May 14, 2018, Mr. Conte
            filed a “Motion for Extension of Time to File 1925(b)
            Statement and For Appointment of New Counsel”.
            On May 25, 2018, the court granted Mr. Conte’s
            request for an extension of time and scheduled a
            hearing for June 6, 2018 to address his request to
            withdraw as [a]ppellant’s counsel. Mr. Conte also
            filed a “Motion to Withdraw as Appellate Counsel”
            with    the   Superior    Court.      (See    Docket,
            Commonwealth v. Finnefrock, 1245 EDA 2018).
            The Superior Court issued an Order on June 1, 2018
            directing this court to enter a disposition on Mr.
            Conte’s request to withdraw as [a]ppellant’s counsel.

            Prior to the hearing of June 6, 2018, [a]ppellant
            submitted correspondence to the Chester County
            Clerk of Courts indicating his desire to participate in
            the June 6, 2018 hearing, and his desire to keep
            Mr. [Conte] as his appellate counsel “cuz he kno(ws)
            I’m not guilty”.         (See Commonwealth v
            Finnefrock, CP-15-CR-4197-20176, Correspondence
            Docketed 06/01/18, p. 1). We denied Mr. Conte’s
            request to withdraw as appellate counsel after
            considering the legal arguments made and
            [a]ppellant’s statements to the court. We found that
            [a]ppellant was not financially able to retain private
            appellate counsel, and that he was under significant
            time constraints to proceed with his appeal.
            Subsequently, [a]ppellant, through Mr. Conte, filed a
            “Motion for a New Hearing to Address Defense
            Counsel’s Motion to Withdraw”.        We denied his
            request on June 13, 2018.

            On June 21, 2018, [a]ppellant filed his Concise
            Statement of Errors Claimed of on Appeal pursuant
            to our May 21, 2018 Order.

Trial court opinion, 7/19/18 at 1-4 (footnote 2 omitted).

      To withdraw under Anders, court-appointed counsel must satisfy

certain technical requirements.   First, counsel must “petition the court for

leave to withdraw and state that after making a conscientious examination


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of   the   record,   he    has   determined   that   the   appeal   is   frivolous.”

Commonwealth v. Martuscelli, 54 A.3d 940, 947 (Pa.Super. 2012),

quoting Santiago, 978 A.2d at 361. Second, counsel must file an Anders

brief, in which counsel:

             (1) provide[s] a summary of the procedural history
             and facts, with citations to the record; (2) refer[s] to
             anything in the record that counsel believes arguably
             supports the appeal; (3) set[s] forth counsel’s
             conclusion that the appeal is frivolous; and
             (4) state[s] 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.         With respect to the briefing requirements,

“[n]either Anders nor McClendon requires that counsel’s brief provide an

argument of any sort, let alone the type of argument that counsel develops

in a merits brief. To repeat, what the brief must provide under Anders are

references to anything in the record that might arguably support the

appeal.” Santiago, 978 A.2d at 359, 360. Finally, counsel must furnish a

copy of the Anders brief to his client and “advise[] him of his right to retain

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

worthy of the court’s attention, and attach[] to the Anders petition a copy

of the letter sent to the client.” Commonwealth v. Daniels, 999 A.2d 590,

594 (Pa.Super. 2010) (citation omitted).        “[If] counsel has satisfied the

above requirements, it is then this Court’s duty to conduct its own review of

the trial court’s proceedings and render an independent judgment as to


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whether the appeal is, in fact, wholly frivolous.”            Commonwealth v.

Goodwin, 928 A.2d 287, 291 (Pa.Super. 2007) (en banc) (quotation marks

and quotation omitted).

      Here, counsel’s Anders brief substantially complies with prevailing

law. Attorney Conte has provided a procedural summary of the case, albeit

without references to the record.       (Anders brief at 6-8.)      Attorney Conte

does, however, attach copies of the trial court’s Pa.R.A.P. 1925(a) opinion;

appellant’s   April   6,   2018    written   guilty   plea   colloquy;   appellant’s

Pa.R.A.P. 1925(b) statement; the transcript of the April 6, 2018 hearing

regarding the Commonwealth’s plea offer to appellant; and the transcript of

appellant’s April 6, 2018 guilty plea proceedings as Exhibits A, B, C, D, and

E, respectively, to his Anders brief. Attorney Conte cites to those exhibits

throughout his brief, and the originals of those exhibits are included in the

certified record. Attorney Conte also refers to portions of those exhibits that

arguably support the appeal; specifically, potential issues regarding the

voluntariness of the plea.        Attorney Conte concludes that “[a]ppellant’s

appeal is frivolous and without merit.” (Anders brief at 14.) Additionally,

Attorney Conte’s correspondence to appellant provided appellant with a copy

of the Anders brief; informed appellant that he “thoroughly reviewed the

issue” that appellant asked him to raise; specifically, appellant’s “belief that

the [trial court] threatened, forced, or otherwise coerced [appellant] into

pleading guilty when it advised [appellant] of the applicable mandatory



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minimum jail sentences that applied to the charges [appellant was] facing at

trial,” and counsel’s conclusion that the claim is “frivolous and without legal

merit.” (Attorney Conte’s correspondence to appellant, 9/10/18.)        In that

correspondence, Attorney Conte also advised appellant of his right to either

retain new counsel or to proceed pro se on appeal to raise any additional

points that he “believes are worthy of the court’s attention.”3 (Id.) As such,

Attorney Conte has substantially complied with the procedural requirements

of Anders.     We, therefore, proceed to conduct an independent review to

ascertain whether the appeal is indeed wholly frivolous.

      Attorney Conte raises the following issue in the Anders brief:

             Did the Court err by advising [a]ppellant,
             Christopher Finnefrock, that he was facing
             eighteen (18) felony charges and that each count
             carried a ten (10) year minimum mandatory
             sentence and was the effect of this notification such
             that [a]ppellant was threatened, forced, or coerced
             into pleading guilty to [the crimes]?

Anders brief at 5.

      At the outset, we note that the record reflects that prior to the entry of

appellant’s guilty plea, a jury had been selected on Friday, April 6, 2018, and

the parties were prepared to proceed to trial on Monday, April 9, 2018, when

the Commonwealth extended the plea bargain offer to appellant. (Notes of

testimony, 4/6/18 at 2.)      The trial court then held a hearing wherein




3 Appellant did not file a response to Attorney Conte’s correspondence to
appellant dated September 10, 2018.


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appellant      acknowledged       that   Attorney       Conte    advised   him      of   the

Commonwealth’s plea offer.           (Id. at 2-3.)       The trial court then informed

appellant that if the jury convicted appellant of all charges, appellant’s

mandatory minimum sentence would be up to 180 years of imprisonment.

(Id.)     The Commonwealth clarified the mandatory minimum sentence as

being comprised of 18 counts with each carrying a 10-year mandatory

minimum. (Id. at 3.) Appellant acknowledged that he discussed the plea

offer with Attorney Conte, but that it was appellant’s choice to proceed to

trial.   (Id.)   Thereafter, however, appellant accepted the Commonwealth’s

offer and entered his guilty pleas.                 (Notes of testimony, guilty plea

proceedings, 4/6/18 at 2-7.)

         In   considering   the    validity    of   a   guilty   plea   colloquy,    “[t]he

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. Prendes, 97 A.3d 337, 352 (Pa.Super. 2014)

(citations omitted), appeal denied, 105 A.3d 736 (Pa. 2014). Pursuant to

Rule 590, the sentencing court should inquire whether the defendant

understands, among other things, “the nature of the charges to which he or

she is pleading guilty[,]” and “the permissible ranges of sentences and fines

possible.” Pa.R.Crim.P. 590, Comment. “[N]othing in the rule precludes the

supplementation of the oral colloquy by a written colloquy that is read,



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completed, and signed by the defendant and made a part of the plea

proceedings.”    Commonwealth v. Bedell, 954 A.2d 1209, 1212-1213

(Pa.Super. 2008) (citation omitted), appeal denied, 964 A.2d 893 (Pa.

2009).

      Thereafter,

            [t]he 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.
            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.

Prendes, 97 A.3d at 352 (citations omitted). Accordingly, even if there is

an omission in the oral plea colloquy, “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. Yeomans, 24 A.3d 1044, 1047 (Pa.Super. 2011)

(citation omitted).

      Additionally, “a defendant is bound by the statements which he makes

during his plea colloquy.”   Commonwealth v. Barnes, 687 A.2d 1163,

1167 (Pa. 1997) (citations omitted). As such, a defendant “may not assert

grounds for withdrawing the plea that contradict statements made when he

pled guilty,” and he cannot recant the representations he made in court

when he entered his guilty plea. Id. (citation omitted). Moreover, the law


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does not require that a defendant be pleased with the outcome of his

decision to plead guilty. The law only requires that a defendant’s decision to

plead guilty be made knowingly, voluntarily, and intelligently.            See

Commonwealth v. Moser, 921 A.2d 526, 528-529 (Pa.Super. 2007).

      Here, the record reflects that appellant read, completed, and signed an

extensive nine-page written guilty plea colloquy form, which is part of the

certified record.    (Written guilty plea colloquy, 4/6/18.)     On that form,

appellant affirmed, in writing, among other things, (i) that he understood

the charges filed against him and the maximum sentences that could be

imposed for those crimes; (ii) that he fully discussed the charges with his

attorney and is satisfied with his attorney’s representation and advice;

(iii) that his decision to plead guilty was his own decision; (iv) that no one

used any force or threats against him to induce him to plead guilty; (v) that

no promises were made to induce his guilty pleas; (vi) that he committed

the crimes to which he plead guilty; and (vii) that he read and understood

the full meaning of the entire written colloquy and still wanted to plead

guilty. (Id.)

      The record further reflects that the trial court conducted an oral guilty

plea colloquy.      (Notes of testimony, guilty plea proceedings, 4/8/18.)

Appellant acknowledged that after he had additional discussions with

Attorney Conte, he decided to plead guilty.     (Id. at 3.)    Appellant agreed

with the factual basis of his guilty pleas and admitted to committing the



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crimes. (Id.) Appellant affirmed that the signatures on the written guilty

plea colloquy were his, and he acknowledged that he had gone over the

entire written colloquy with Attorney Conte. (Id.) Appellant acknowledged

his satisfaction with Attorney Conte’s professional services. (Id.) Appellant

also acknowledged that no one promised him anything or threatened him to

induce his guilty pleas. (Id. at 4.)

      After thoroughly reviewing the record, we conclude that the totality of

the circumstances surrounding appellant’s entry of his guilty pleas discloses

that appellant fully understood the nature and consequences of his pleas and

that he knowingly and voluntarily decided to enter the pleas. Therefore, the

record supports Attorney Conte’s assessment that because appellant entered

his guilty pleas knowingly and voluntarily, this appeal is wholly frivolous.

      Finally, our independent review of the entire record reveals no

additional non-frivolous claims.    Therefore, we grant counsel’s petition to

withdraw and affirm appellant’s April 6, 2018 judgment of sentence.

      Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 12/24/18




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