J-S58004-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CARLOS ALBERTO CRUZ-BORRERO,

                            Appellant                 No. 52 MDA 2016


           Appeal from the Judgment of Sentence December 9, 2015
                in the Court of Common Pleas of Berks County
              Criminal Division at No.: CP-06-CR-0002843-2015


COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CARLOS ALBERTO CRUZ-BORRERO,

                            Appellant                 No. 53 MDA 2016


           Appeal from the Judgment of Sentence December 9, 2015
                in the Court of Common Pleas of Berks County
              Criminal Division at No.: CP-06-CR-0002796-2015


BEFORE: GANTMAN, P.J., BOWES, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED SEPTEMBER 07, 2016

        In these consolidated cases, Appellant, Carlos Alberto Cruz-Borrero,

appeals from the judgment of sentence imposed on December 9, 2015,
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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following his negotiated guilty plea to two counts of retail theft. 1 Appellant’s

counsel has filed a brief and a petition to withdraw under Anders v.

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

A.2d 349 (Pa. 2009), alleging that the appeal is wholly frivolous. We affirm

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

        On June 23 and 24, 2015, the Commonwealth filed two criminal

informations charging Appellant in case no. 2796-2015 with retail theft; and

in case no. 2843-2015, with retail theft and receiving stolen property.2 The

charges arose from Appellant’s April 17, 2015 theft of $2,531.39 worth of

property from the Target store in Muhlenberg Township, Berks County,

Pennsylvania; and his May 8, 2015 theft of $327.31 worth of property from

the Sears store in the Borough of Wyomissing, Berks County, Pennsylvania.

(See N.T. Guilty Plea, 12/09/15, at 6).

        On December 9, 2015, the morning scheduled for a bench trial in case

no. 2843-2015, Appellant entered a counseled negotiated guilty plea to two

counts of retail theft, one in case no. 2843-2015 and one in case no. 2796-

2015. (See id. at 2). In return for Appellant’s guilty plea, in case no. 2796-

2015 the Commonwealth agreed to a sentence of not less than time served

(ninety-two days) nor more than twenty-three months of incarceration.

(See id. at 4).      In case no. 2843-2015 the Commonwealth dismissed the
____________________________________________


1
    18 Pa.C.S.A. § 3929(a)(1).
2
    18 Pa.C.S.A. § 3925(a).



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charge of receiving stolen property and agreed to a sentence of three years

of probation and forty hours of community service. (See id. at 4-5; see

also Written Guilty Plea 12/09/15, at 1). Appellant signed a written guilty

plea colloquy. (See Written Guilty Plea, at 3). Counsel co-signed the guilty

plea colloquy. (See id. at 4).

      At the plea hearing, Appellant stated that he was pleading guilty of his

own free will. (See N.T. Guilty Plea, at 7). Appellant acknowledged that the

trial court could sentence him to pay an aggregate fine of $25,000.00. (See

id. at 5). In the written plea colloquy, Appellant agreed that, as part of the

plea agreement, he would have to complete forty hours of community

service, that he was pleading guilty of his own free will, because he was

guilty of the charged crimes, and that he understood the maximum possible

sentences. (See Written Guilty Plea, at 1-3). Following his guilty plea, the

trial court immediately sentenced Appellant in accordance with the terms of

the negotiated guilty plea. (See N.T. Guilty Plea, at 9-11). Appellant also

signed a written acknowledgment of post-sentence procedures, which

informed him that he must file any post-sentence motion within ten days of

sentencing.     (See    [Appellant’s]   Acknowledgment     of   Post-Sentence

Procedures Following Guilty Plea, 12/09/15, at unnumbered pages 1-2).

Counsel co-signed the acknowledgment. (See id. at 2).

      On December 28, 2015, Appellant filed a counseled nunc pro tunc

petition to withdraw his guilty plea, claiming that his guilty plea was


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involuntary because he was not aware of the fines, costs, or community

service required as part of his plea and that he felt “threatened by the police

present at the time of his court appearance[.]” (Petition for Nunc Pro Tunc

Relief to Withdraw Guilty Plea, 12/28/15, at unnumbered page 2).             On

January 5, 2016, the trial court denied the motion.        The instant, timely

appeal followed.

       On January 15, 2016, the trial court ordered Appellant to file a concise

statement of errors complained of on appeal.          See Pa.R.A.P. 1925(b).

Subsequently, Appellant filed a petition seeking an enlargement of time to

file his Rule 1925(b) statement, which the trial court granted.3 On February

3, 2016, Appellant filed a timely Rule 1925(b) statement. See id. On March

2, 2016, the trial court issued an opinion. See Pa.R.A.P. 1925(a).

       On April 28, 2016, counsel filed a motion to withdraw and Anders

brief in this Court. Appellant has not filed a response.

       On appeal, the Anders brief raises the following question for our

review:

       A.     Whether the trial court abused its discretion in denying
              Appellant’s motion to withdraw his guilty pleas to [r]etail
              [t]heft, 18 Pa. C.S.A. § 3929(a)(1), as, based on the
              totality of the circumstances, Appellant’s guilty pleas were
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3
  While Appellant entitled his petition as one seeking to supplement his Rule
1925(b) statement, a reading of the petition demonstrates that Appellant
sought an enlargement of time because of a delay in obtaining the
transcripts. (See Petition for Permission to Supplement 1925(b) Statement,
2/02/16, at unnumbered page 1).



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            not knowing, intelligent and voluntary, a claim of manifest
            injustice[?]

(Anders Brief, at 5).

      Appellant’s counsel has petitioned for permission to withdraw and has

submitted an Anders brief, which is procedurally proper for counsel seeking

to withdraw on direct appeal. See Anders, supra at 744. Court-appointed

counsel who seeks to withdraw from representing an appellant on direct

appeal on the basis that the appeal is frivolous 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, supra at 361. When we receive an Anders brief, we first rule on

the petition to withdraw and then review the merits of the underlying issues.

See Commonwealth v. Garang, 9 A.3d 237, 240-41 (Pa. Super. 2010).

In addition, “[p]art and parcel of Anders is our Court’s duty to review the

record to insure no issues of arguable merit have been missed or misstated.”

Commonwealth v. Vilsaint, 893 A.2d 753, 755 (Pa. Super. 2006).

      In the instant matter, counsel has substantially complied with all the

requirements of Anders and Santiago. Specifically, she has petitioned this

Court to withdraw because “there are no non-frivolous issues to be raised on

appeal and [she] believes that the appeal is wholly frivolous.” (Petition to


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Withdraw as Counsel, 4/28/16, at 1).     In addition, after her review of the

record, counsel filed a brief with this Court that provides a summary of the

procedural history and facts with citations to the record, refers to any facts

or legal theories that arguably support the appeal, and explains why she

believes the appeal is frivolous. (See Anders Brief, at 6-12). Lastly, she

has attached, as an exhibit to her motion to withdraw, a copy of the letter

sent to Appellant giving notice of his rights, and including a copy of the

Anders brief and the petition.      (See Petition to Withdraw as Counsel,

4/28/16, at Exhibit A); see also Commonwealth v. Millisock, 873 A.2d

748, 751-52 (Pa. Super. 2005).        As noted above, Appellant has not

responded. Because counsel has substantially complied with the dictates of

Anders, Santiago, and Millisock, we will examine the issue set forth in the

Anders brief. See Garang, supra at 240-41.

      In the Anders brief, counsel asserts that Appellant’s guilty plea was

not knowing, intelligent, and voluntary.     (See Anders Brief, at 9-12).

Appellant does not proclaim his actual innocence but alleges that he did not

understand all the terms of his sentence and that the presence of police in

the courtroom coerced him to plead guilty. (See id. at 10). We disagree.

      However, before discussing the merits of Appellant’s claims, we must

determine if they are properly before us. The Pennsylvania Rules of Criminal

Procedure provide that, “[e]xcept as provided in paragraph (C) and (D)

[dealing with summary cases], a written post-sentence motion shall be filed


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no later than 10 days after imposition of sentence.” Pa.R.Crim.P. 720(A)(1).

Here, Appellant entered his guilty plea and was sentenced on December 9,

2015. He did not file his post-sentence motion to withdraw his guilty plea

until December 28, 2015. Thus, it was facially untimely.4

       With respect to untimely post-sentence motions, this Court has stated:

              To be entitled to file a post-sentence motion nunc pro
       tunc, a defendant must, within 30 days after the imposition of
       sentence, demonstrate sufficient cause, i.e., reasons that excuse
       the late filing. Merely designating a motion as “post-sentence
       motion nunc pro tunc ” is not enough. When the defendant has
       met this burden and has shown sufficient cause, the trial court
       must then exercise its discretion in deciding whether to permit
       the defendant to file the post-sentence motion nunc pro tunc. If
       the trial court chooses to permit a defendant to file a post-
       sentence motion nunc pro tunc, the court must do so expressly.
       . . . in order for a petition to file a post-sentence motion nunc
       pro tunc to be granted, a defendant must, within 30 days after
       the imposition of sentence, demonstrate an extraordinary
       circumstance which excuses the tardiness.

Commonwealth v. Dreves, 839 A.2d 1122, 1128 (Pa. Super. 2003) (en

banc) (footnote and citations omitted).

       Here, Appellant simply entitled his motion “nunc pro tunc” but failed to

provide any explanation for its tardiness. (Petition for Nunc Pro Tunc Relief

to Withdraw Guilty Plea, 12/28/15, at unnumbered pages 1-3). Because of

this, the trial court acted within its discretion to deny the motion, without a



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4
  Although Appellant did not timely file his post-sentence motion, his notice
of appeal was timely.



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hearing, as untimely. (See Order, 1/05/16, at 1); see also Dreves, supra

at 1128.

      With respect to challenges to the validity of a guilty plea on direct

appeal, this Court has stated:

             Settled Pennsylvania law makes clear that by entering a
      guilty plea, the defendant waives his right to challenge on direct
      appeal all nonjurisdictional defects except the legality of the
      sentence and the validity of the plea.

                  Indeed, a defendant routinely waives a
            plethora of constitutional rights by pleading guilty,
            including the right to a jury trial by his peers, the
            right to have the Commonwealth prove his guilt
            beyond a reasonable doubt, and his right to confront
            any witnesses against him.            Furthermore, a
            defendant is permitted to waive fundamental
            constitutional protections in situations involving far
            less protection of the defendant than that presented
            herein. . . .

            A defendant wishing to challenge the voluntariness of a
      guilty plea on direct appeal must either object during the plea
      colloquy or file a motion to withdraw the plea within ten days of
      sentencing. Failure to employ either measure results in waiver.
      Historically, Pennsylvania courts adhere to this waiver principle
      because [i]t is for the court which accepted the plea to consider
      and correct, in the first instance, any error which may have been
      committed. Commonwealth v. Roberts, 237 Pa.Super. 336,
      352 A.2d 140, 141 (1975) (holding that common and previously
      condoned mistake of attacking guilty plea on direct appeal
      without first filing petition to withdraw plea with trial court is
      procedural error resulting in waiver; stating, “(t)he swift and
      orderly administration of criminal justice requires that lower
      courts be given the opportunity to rectify their errors before they
      are considered on appeal”; “Strict adherence to this procedure
      could, indeed, preclude an otherwise costly, time consuming,
      and unnecessary appeal to this court”).

            Likewise:


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                   Normally, issues not preserved in the trial
            court may not be pursued before this Court.
            Pa.R.A.P. 302(a).       For example, a request to
            withdraw a guilty plea on the grounds that it was
            involuntary is one of the claims that must be raised
            by motion in the trial court in order to be reviewed
            on direct appeal. Similarly, challenges to a court’s
            sentencing discretion must be raised during
            sentencing or in a post-sentence motion in order for
            this Court to consider granting allowance of appeal.
            Moreover, for any claim that was required to be
            preserved, this Court cannot review a legal theory in
            support of that claim unless that particular legal
            theory was presented to the trial court. Thus, even
            if an appellant did seek to withdraw pleas or to
            attack the discretionary aspects of sentencing in the
            trial court, the appellant cannot support those claims
            in this Court by advancing legal arguments different
            than the ones that were made when the claims were
            preserved.

      Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super.
      2008), appeal denied, 601 Pa. 696, 972 A.2d 521 (2009).

            Further, a defendant who attempts to withdraw a guilty
      plea after sentencing must demonstrate prejudice on the order
      of manifest injustice before withdrawal is justified. A plea rises
      to the level of manifest injustice when it was entered into
      involuntarily, unknowingly, or unintelligently. . . .

Commonwealth v. Lincoln, 72 A.3d 606, 609-10 (Pa. Super. 2013),

appeal denied, 87 A.3d 319 (Pa. 2014) (some citations and quotation marks

omitted).

      Here, Appellant did not preserve his challenge to the voluntariness of

his guilty plea by either objecting during the plea colloquy or filing a timely

post-sentence   motion    to   withdraw    the   plea.     See    Pa.R.Crim.P.




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720(B)(1)(a)(i). Accordingly, Appellant waived any challenge to his guilty

plea on direct appeal.5 See Lincoln, supra at 609-10.

       Judgment of sentence affirmed.              Petition to withdraw as counsel

granted.

       President Judge Gantman joins the Memorandum.

       Judge Bowes concurs in the result.
____________________________________________


5
   In any event, Appellant’s challenge to the voluntariness of his plea is
frivolous. Appellant’s claim that he was unaware that he would be required
to pay fines and costs and undergo community service (see Anders brief, at
8), is belied by the record.         At the guilty plea hearing, Appellant
acknowledged that the trial court could require him to pay fines. (See N.T.
Guilty Plea, at 5). Appellant did not object to the imposition of costs at
sentencing and did not seek to withdraw his guilty plea at that time. (See
id. at 9-11). Moreover, Appellant acknowledged in his written guilty plea,
that, as part of the plea agreement, he would have to complete community
service. (See Written Guilty Plea, at 1). As to his claim about the coercive
effect of the police presence, the sole indication in the record that there
were police officers present is the trial court’s statement that it was “going
to excuse the officers.” (N.T. Guilty Plea, at 7). As the trial court noted, the
officers were present because “[Appellant] pled guilty at the date and time
of his bench trial, for which the officers had been subpoenaed to testify.”
(Trial Court Opinion, 3/02/16, at unnumbered page 3). There is nothing in
the record that demonstrates that the officers had any interaction with
Appellant, and Appellant did not object to their presence. (See N.T. Guilty
Plea, at 1-11). Moreover, Appellant has not pointed to any law that would
support a claim that the mere presence of police officers in the courtroom at
the time of a guilty plea renders the plea involuntary. (See Anders brief, at
8-12). Accordingly, Appellant has not demonstrated that the entry of his
guilty plea was involuntary, unknowing, or unintelligent.                   See
Commonwealth v. Yeomans, 24 A.3d 1044, 1046 (Pa. Super. 2011).

       Thus, had Appellant preserved them, his issues do not merit relief.
Further, this Court has conducted an independent review of the record as
required by Anders and Santiago and finds that no meritorious issues
exist.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/7/2016




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