J-S18013-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
               v.                         :
                                          :
                                          :
 MELISSA EVETTE CANDELARIO                :
                                          :
                    Appellant             :   No. 1258 MDA 2018

         Appeal from the Judgment of Sentence Entered May 1, 2018
     In the Court of Common Pleas of Berks County Criminal Division at
                      No(s): CP-06-CR-0002608-2016


BEFORE:      BOWES, J., NICHOLS, J., and STEVENS*, P.J.E.

MEMORANDUM BY BOWES, J.:                                FILED MAY 31, 2019

      Melissa Evette Candelario appeals from the judgment of sentence of

ninety-five months to twenty years of imprisonment imposed after she pled

guilty to aggravated assault.    Appellant’s counsel has filed a petition to

withdraw and a brief pursuant to Anders v. California, 386 U.S. 738 (1967),

and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).                   We grant

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

      The Commonwealth charged Appellant with criminal attempt- homicide,

recklessly   endangering   another   person    (“REAP”),   terroristic    threats,

harassment, and two counts each of aggravated assault and simple assault,

arising from a May 13, 2016 incident where Appellant stabbed Amy Garman

in the eye socket with a screwdriver, causing bleeding in the brain. N.T. Guilty

Plea Hearing, 5/1/18, at 5.



____________________________________
* Former Justice specially assigned to the Superior Court.
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      On May 1, 2018, Appellant appeared before the trial court to enter a

negotiated guilty plea, under which Appellant would plead guilty to aggravated

assault in exchange for the Commonwealth’s withdrawal of all remaining

charges. Id. at 2, 6. The parties also agreed upon a sentence of ninety-five

months to twenty years of incarceration with a total of 264 days of credit for

time served. Id. at 6-8. The court engaged in a colloquy of Appellant, wherein

she demonstrated a knowledge of the charges pending, the facts that the

Commonwealth would have to prove if she chose to proceed to trial, and the

maximum penalties she faced if convicted. Id. at 2-5. Appellant verified her

understanding that, in exchange for her guilty plea, she would give up her

right to litigate any pretrial motions and her right to a jury trial. Id. at 4. The

court accepted the guilty plea and sentenced Appellant in accordance with its

terms. Id. at 8-9.

      Appellant filed a timely post-sentence motion seeking to withdraw her

guilty plea based upon a claim of innocence and requesting a modification of

her sentence. At the post-sentence motions hearing, counsel informed the

court that the motion was filed to protect Appellant’s appellate rights and that,

because Appellant did not wish to assert her innocence, he did not “believe

[that] we can support the standard to withdraw her guilty plea” or “challenge

the sentence.” N.T. Motions Hearing, 6/28/18, at 2. The court entered an

order denying the post-sentence motion.

      Appellant filed a timely notice of appeal and the court ordered her to file

a concise statement of errors complained of on appeal. Instead, counsel filed

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a statement of intent to file an Anders brief, explaining that she had been

unable to discern any non-frivolous issues. The trial court issued its Pa.R.A.P.

1925(a) opinion, wherein it stated that it was unable to provide a brief opinion

as counsel did not identify the rulings or other errors complained of on appeal.

      In this Court, counsel filed both an Anders brief and a petition to

withdraw as counsel. Accordingly, the following principles guide our review of

this matter:

             Direct appeal counsel seeking to withdraw under Anders
      must file a petition averring that, after a conscientious
      examination of the record, counsel finds the appeal to be wholly
      frivolous. Counsel must also file an Anders brief setting forth
      issues that might arguably support the appeal along with any
      other issues necessary for the effective appellate presentation
      thereof . . . .

             Anders counsel must also provide a copy of the Anders
      petition and brief to the appellant, advising the appellant of the
      right to retain new counsel, proceed pro se or raise any additional
      points worthy of this Court’s attention.

             If counsel does not fulfill the aforesaid technical
      requirements of Anders, this Court will deny the petition to
      withdraw and remand the case with appropriate instructions (e.g.,
      directing counsel either to comply with Anders or file an
      advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
      petition and brief satisfy Anders, we will then undertake our own
      review of the appeal to determine if it is wholly frivolous. If the
      appeal is frivolous, we will grant the withdrawal petition and affirm
      the judgment of sentence. However, if there are non-frivolous
      issues, we will deny the petition and remand for the filing of an
      advocate’s brief.




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Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa.Super. 2007)

(citations omitted). Our Supreme Court has clarified portions of the Anders

procedure:

        [I]n the Anders brief that accompanies court-appointed counsel’s
        petition to withdraw, 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 statues on point that have led
        to the conclusion that the appeal is frivolous.

Santiago, supra at 361.

        Based upon our examination of counsel’s petition to withdraw and

Anders brief, we conclude that counsel has substantially complied with the

technical requirements set forth above. As required by Santiago, counsel set

forth the case history, referred to issues that arguably support the appeal,

stated her conclusion that the appeal is frivolous, and cited to controlling case

law which supports that conclusion. See Anders brief at 5-21. Additionally,

counsel gave Appellant proper notice of her right to immediately proceed pro

se or retain another attorney.1 See Santiago, supra; Application for leave

to withdraw, 2/8/19, at 2.           Accordingly, we proceed to an independent

examination of the record in order to discern if any non-frivolous issues exist.




____________________________________________


1   Appellant did not file a response to counsel’s petition.

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Commonwealth v. Dempster, 187 A.3d 266, 273 (Pa.Super. 2018) (en

banc).

        Counsel identified two issues that arguably support the appeal:         (1)

whether Appellant’s guilty plea was knowingly, voluntarily, or intelligently

entered; and (2) whether Appellant can challenge the discretionary aspects of

her negotiated sentence. Anders brief at 5.

        We first consider whether Appellant has any viable claim regarding the

entry    of   an   allegedly   unknowing   and   involuntary   guilty   plea.   In

Commonwealth v. Broaden, 980 A.2d 124                   (Pa.Super.      2009), we

summarized the principles governing post-sentence motions to withdraw

guilty pleas:

        post-sentence motions for withdrawal are subject to higher
        scrutiny since courts strive to discourage entry of guilty pleas as
        sentence-testing devices. A defendant must demonstrate that
        manifest injustice would result if the court were to deny his post-
        sentence motion to withdraw a guilty plea. Manifest injustice may
        be established if the plea was not tendered knowingly,
        intelligently, and voluntarily. In determining whether a plea is
        valid, the court must examine the totality of circumstances
        surrounding the plea. A deficient plea does not per se establish
        prejudice on the order of manifest injustice.

Id. at 129 (citations omitted).

        A court accepting a defendant’s plea is required to conduct an on-the-

record inquiry, which explores the following areas:

        (1) Does the defendant understand the nature of the charges to
        which he or she is pleading guilty or nolo contendere?[;] (2) is
        there a factual basis for the plea?[;] (3) does the defendant
        understand that he or she has the right to a trial by jury?[;] (4)
        does the defendant understand that he or she is presumed

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      innocent until found guilty[;] (5) is the defendant aware of the
      permissible range of sentences and/or fines for the offenses
      charged?[; and] (6) is the defendant aware that the judge is not
      bound by the terms of any plea agreement tendered unless the
      judge accepts such agreement?

Commonwealth v. Pollard, 832 A.2d 517, 522-23 (Pa.Super. 2003)

(citations omitted); see also Pa.R.Crim.P. 590.         Moreover, “[o]ur law

presumes that a defendant who enters a guilty plea was aware of what he was

doing. He bears the burden of proving otherwise.” Pollard, supra at 523.

      The plea colloquy complied with Pa.R.Crim.P. 590. The court inquired

at length concerning Appellant’s understanding of the nature of the charges

she faced and the terms of the plea agreement. N.T. Guilty Plea Hearing,

5/1/18, at 1-6. More specifically, it identified the offenses charged and the

maximum penalties she faced if convicted. Id. at 2. The court also reminded

Appellant that she had the right to have a jury trial and was presumed

innocent. Id. at 4. Additionally, the Commonwealth summarized the facts

that it would have been required to prove if Appellant had chosen to proceed

to trial and the court incorporated her written guilty plea colloquy into the

record. Id. at 2-5. Finally, during the colloquy, Appellant admitted her guilt

and expressed her desire to plead guilty. Id. at 4-5, 7.

      Upon our independent review of the record, we discern no manifest

injustice that would support the reversal of the trial court’s order denying the

post-sentence motion. The guilty plea colloquy irrefutably establishes that the

trial court made the appropriate inquiries and that Appellant entered her plea


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knowingly, intelligently, and voluntarily. Appellant willingly availed herself of

the benefits of the plea agreement and is bound by the statements she made

during her written and oral guilty plea colloquies.        Commonwealth v.

Turetsky, 925 A.2d 876, 881 (Pa.Super. 2007) (“A person who elects to plead

guilty is bound by the statements he makes in open court while under oath

and he may not later assert grounds of withdrawing the plea which contradict

the statements he made at his plea colloquy.”) (citation omitted). For all of

the foregoing reasons, Appellant’s first claim is devoid of merit.

      Next, Appellant wishes to challenge the discretionary aspects of her

negotiated sentence. With respect to negotiated plea agreements, we have

explicitly found:

      [W]here the guilty plea agreement between the Commonwealth
      and a defendant contains a negotiated sentence, . . . and where
      that negotiated sentence is accepted and imposed by the court, a
      defendant is not allowed to challenge the discretionary aspects of
      the sentence. Commonwealth v. Reichele, [589 A.2d 1140
      (Pa.Super. 1991)]. We stated, “If either party to a negotiated
      plea agreement believed the other side could, at any time
      following entry of sentence, approach the judge and have the
      sentence unilaterally altered, neither the Commonwealth nor any
      defendant would be willing to enter into such an agreement.” Id.
      at 1141.

Commonwealth v. Byrne, 833 A.2d 729, 735 (Pa.Super. 2003).

      The reasoning of Reichele is instructive here.       Appellant entered a

negotiated guilty plea and now seeks to alter a specific term of that

agreement. This she cannot do. As in Reichele, if Appellant were allowed to

alter her sentence, it “would undermine the designs and goals of plea


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bargaining” and “would make a sham of the negotiated plea process.”2

Reichele, supra, at 1141.

       Further, we have conducted a “full examination of the proceedings” and

determined that “the appeal is in fact wholly frivolous.”3 Commonwealth v.

Flowers, 113 A.3d 1246, 1248 (Pa.Super. 2015). Since our review did not

disclose any other arguably meritorious claims, we grant counsel’s petition to

withdraw and affirm the judgment of sentence. Dempster, supra at 273.




____________________________________________


2  An examination of Appellant’s brief also reveals that Appellant has failed to
comply with the mandate of Pa.R.A.P. 2119(f) and that the Commonwealth
has objected to the omission. Commonwealth’s brief at 8-9. Therefore, even
if Appellant had raised a valid discretionary sentencing challenge we would be
barred from considering it, since failure to include a Rule 2119(f) statement
where the Commonwealth has objected to its omission results in waiver.
Commonwealth v. Hudson, 820 A.2d 720, 727 (Pa.Super. 2003).

3 We undertook our review mindful of the fact that “upon entry of a guilty
plea, a defendant waives all claims and defenses other than those sounding
in the jurisdiction of the court, the validity of the plea, and what has been
termed the ‘legality’ of the sentence imposed.”            Commonwealth v.
Eisenberg, 98 A.3d 1268, 1275 (Pa. 2014). No viable claims or defenses on
those subjects are apparent from the record before us.

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Petition of Samuel J. Mills, Esquire, to withdraw as counsel is granted.

Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/31/2019




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