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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                        :
MICHAEL TAYLOR,                         :         No. 573 EDA 2014
                                        :
                        Appellant       :


         Appeal from the Judgment of Sentence, January 14, 2014,
            in the Court of Common Pleas of Delaware County
             Criminal Division at No. CP-23-CR-0004788-2013


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


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED JUNE 17, 2015

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

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

possession of a controlled substance with intent to deliver.       Appointed

counsel, Patrick J. Connors, Esq., has filed a petition to withdraw, alleging

that the appeal is wholly frivolous, accompanied by an Anders brief.1 We

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

     On June 20, 2013, appellant was apprehended by parole agents for

violation of parole. A search of his person uncovered a Ziploc bag containing

10 bundles of heroin.    The agents turned appellant over to Chester police

officers. Appellant was subsequently charged with possession of a controlled


1
 See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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substance, possession of a controlled substance with intent to deliver, and

possession of drug paraphernalia.2

        On January 14, 2014, pursuant to a negotiated guilty plea agreement,

appellant pleaded guilty to possession of a controlled substance with intent

to deliver.   In exchange, the Commonwealth recommended a sentence of

12 to 24 months’ imprisonment followed by 2 years’ probation and dismissed

the remaining charges. Immediately following the plea, the court imposed

the recommended sentence.           A timely notice of appeal was filed on

February 12, 2014. In response to the trial court’s order to file a statement

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

intent to file an Anders brief under Pa.R.A.P. 1925(c)(4).3         Consequently,

the trial court declined to issue a Pa.R.A.P. 1925(a) opinion and had the

record certified for transmittal to this court.


2
    35 P.S. § 780-113(a)(16), (a)(30), and (a)(32), respectively.
3
    Rule 1925(c)(4) provides:

              In a criminal case, counsel may file of record and
              serve on the judge a statement of intent to file an
              [Anders] brief in lieu of filing a Statement. If, upon
              review of the [Anders] brief, the appellate court
              believes that there are arguably meritorious issues
              for review, those issues will not be waived; instead,
              the appellate court may remand for the filing of a
              Statement, a supplemental opinion pursuant to
              Rule 1925(a), or both. Upon remand, the trial court
              may, but is not required to, replace appellant’s
              counsel.

Pa.R.A.P. 1925(c)(4).


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     On April 24, 2014, appellant’s counsel filed in this court a motion to

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

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 Connors’s application to withdraw, supporting

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



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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,

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 Connors 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 sole 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



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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

(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.

     Traditionally, a negotiated plea refers to one where the terms of the

sentence are set by the parties and if the agreement is accepted by the

court, that sentence must be imposed.        Instantly, the plea agreement

provided for a recommended sentence.      Under these circumstances, if the

court accepts the plea agreement it may or may not impose the

recommended sentence, but if the court rejects the recommended sentence

it must afford the defendant an opportunity to withdraw the plea, so long as

the plea did not prohibit withdrawal.   Commonwealth v. Pardo, 35 A.3d

1222, 1228 (Pa.Super. 2011), appeal denied, 50 A.3d 125 (Pa. 2012).4 In


4
           [W]hen a written plea agreement includes specific
           language that the defendant knowingly waives his
           right to withdraw his plea if the trial judge shall not
           concur in the recommended sentence, the defendant
           is not entitled to withdraw his plea; but if a plea
           agreement is silent on whether the defendant may
           withdraw the plea in the event that the trial court
           does not concur in the recommended sentence, the
           defendant shall be entitled to withdraw his plea, as is
           the current practice under Rule 319.

Pardo, 35 A.3d at 1228, quoting Commonwealth v. Porreca, 595 A.2d
23, 26 (1991).


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its analysis, the Dalberto court cited with approval Commonwealth v.

Coles, 530 A.2d 453 (Pa.Super. 1987), appeal denied, 559 A.2d 34 (Pa.

1989).

      In Coles, appellant and the Commonwealth entered a plea agreement

calling for a recommended sentence.      Initially, the trial court imposed the

recommended sentence, but upon a motion to reconsider by appellant, the

trial court reduced the sentence.     On appeal by the Commonwealth, the

Coles court held that a plea containing a recommended sentence is a

bargain for a specific sentence and that to allow its modification deprives the

Commonwealth of the benefit of its bargain, turning the negotiating process

into a sham. Coles, 530 A.2d at 456-458. Consequently, the Coles court

vacated the order modifying the original sentence.

      In citing Coles, the Dalberto court indicated that an accepted

recommended sentence was tantamount to a negotiated sentence for

purposes of not being permitted to raise the discretionary aspects of

sentence following a guilty plea.     Thus, appellant cannot now raise the

discretionary   aspects    of   his   sentence    because    the    sentencing

recommendation he bargained for was accepted by the guilty plea court.

This issue is wholly without merit.

      We find this appeal to be wholly frivolous, and our independent review

of the entire record has not disclosed any other potentially non-frivolous




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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: 6/17/2015




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