J-S69034-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA
                     Appellee

                v.

MARK ADAM HENDERSON,

                     Appellant                 No. 507 MDA 2016


       Appeal from the Judgment of Sentence February 19, 2016
         in the Court of Common Pleas of Huntingdon County
          Criminal Division at Nos.: CP-31-CR-0000405-2015
                       CP-31-CR-0000407-2015
                       CP-31-CR-0000511-2015
                       CP-31-CR-0000535-2015


COMMONWEALTH OF PENNSYLVANIA,             IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA
                     Appellee

                v.

MARK ADAM HENDERSON,

                     Appellant                 No. 508 MDA 2016


       Appeal from the Judgment of Sentence February 19, 2016
         in the Court of Common Pleas of Huntingdon County
          Criminal Division at Nos.: CP-31-CR-0000405-2015
                       CP-31-CR-0000407-2015
                       CP-31-CR-0000511-2015
                       CP-31-CR-0000535-2015


COMMONWEALTH OF PENNSYLVANIA,             IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA
                     Appellee

                v.
J-S69034-16


MARK ADAM HENDERSON,

                            Appellant                 No. 509 MDA 2016


           Appeal from the Judgment of Sentence February 19, 2016
             in the Court of Common Pleas of Huntingdon County
              Criminal Division at Nos.: CP-31-CR-0000405-2015
                           CP-31-CR-0000407-2015
                           CP-31-CR-0000511-2015
                           CP-31-CR-0000535-2015


COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MARK ADAM HENDERSON,

                            Appellant                 No. 510 MDA 2016


           Appeal from the Judgment of Sentence February 19, 2016
             in the Court of Common Pleas of Huntingdon County
              Criminal Division at Nos.: CP-31-CR-0000405-2015
                           CP-31-CR-0000407-2015
                           CP-31-CR-0000511-2015
                           CP-31-CR-0000535-2015


BEFORE: STABILE, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                          FILED OCTOBER 21, 2016

        In these consolidated appeals, Appellant, Mark Adam Henderson,

appeals pro se from the judgment of sentence imposed following his entry of

a counseled, negotiated nolo contendere plea, inter alia, to eight charges
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.



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J-S69034-16


involving driving under the influence with a suspended license. Counsel has

filed a petition to withdraw from representation on the basis of frivolity, and

a supporting brief pursuant to Anders v. California and Commonwealth

v. Santiago.1 Appellant filed both a reply to the petition to withdraw and a

separate pro se brief. Appellant has also filed four pro se motions (and one

pro se petition).      We deny all of Appellant’s pro se motions.    We grant

counsel’s petition to withdraw, and we affirm Appellant’s judgment of

sentence.

       On February 19, 2016, Appellant entered counseled, negotiated nolo

pleas to four separate criminal informations (four counts of driving under the

influence, controlled substance, impaired ability, fourth and subsequent

offense; and four counts of driving while license suspended).2      As part of

the agreement, other pending charges were nolle prossed.3            Appellant

completed and signed a written Nolo Contendere Colloquy, co-signed by plea


____________________________________________


1
  See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
2
  Appellant does not appeal from two sentences of probation for forgery of
prescriptions which were also part of the global agreement.
3
  The other charges included violation of 75 Pa.C.S.A. § 1501 (drivers
required to be licensed); § 6503.1 (habitual offenders), and other acts
involving impaired driving. Appellant was apparently also charged with theft
of a cellphone, trespass and attempting to elude police by hiding in a crawl
space and crawling into the attic of an adjoining property when the officers
came to serve an arrest warrant on him.



                                           -3-
J-S69034-16


counsel.     After a thorough on-the-record colloquy, the court accepted

Appellant’s plea. (See N.T. Plea and Sentencing, 2/19/16, at 2-8).

        On the same day, the court imposed the negotiated aggregate

sentence of not less than eighty-four months’ and not more than one

hundred-sixty-eight months’ incarceration in a state correctional institution.

(See id. at 8-10).4 The sentencing court also found Appellant to be RRRI

eligible for a minimum sentence of seventy months’ incarceration.        (See

id.).

        On March 9, 2016, Appellant filed a pro se motion to modify or reduce

sentence. Even though the post-sentence motion was untimely on its face,

the court scheduled a hearing.5 (See Order, 4/01/16). However, before the

hearing could be held, Appellant filed a pro se notice of appeal, on March 18,

2016, albeit erroneously addressed to the Pennsylvania Supreme Court.6

____________________________________________


4
  As part of the global plea, the court also sentenced Appellant to two terms
of probation (five years each) for the two counts of forgery (prescriptions)
previously noted. The terms of probation were consecutive to each other
and to the term of incarceration. (See N.T. Plea and Sentencing, at 10).
The sentencing court made all other sentences concurrent to the aggregate
sentence of incarceration (seven to fourteen years). (See id. at 9-10).
5
  A defendant must file a post-sentence motion within ten days of imposition
of sentence.    Pa.R.Crim.P. 720(A)(1); see also Commonwealth v.
Capaldi, 112 A.3d 1242, 1244 (Pa. Super. 2015); Commonwealth v.
Dreves, 839 A.2d 1122, 1128 (Pa. Super. 2003).
6
  This Court consolidated the appeals at Nos. 507, 508, 509, and 510, sua
sponte, per curiam. (See Order, 4/20/16).




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J-S69034-16


Counsel filed a court-ordered statement of errors on April 26, 2016.         See

Pa.R.A.P. 1925(b).        On June 23, 2016, counsel also filed a petition to

withdraw (captioned as a motion) and, in support, an Anders brief. In the

brief, after reviewing Appellant’s claims of ineffective assistance and an

excessive sentence, counsel concluded that the appeal was frivolous, and

that nothing in the record supports the appeal. (See Anders Brief, 6/23/16,

at 20).

       Counsel’s third obligation under Anders [after filing a petition to
       withdraw and an Anders brief] is to furnish a copy of the brief to
       the appellant, advising him of his right to: (1) retain new counsel
       to pursue the appeal; (2) proceed pro se on appeal; or (3) raise
       any points that the appellant deems worthy of the court’s
       attention in addition to the points raised by counsel in the
       Anders brief. This last option (i.e., to raise additional
       points) means that the appellant, although still
       represented by Anders counsel, may file a brief with this
       Court.

Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007), appeal

denied, 936 A.2d 40 (Pa. 2007) (emphasis added) (citation omitted); see

also Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).

       Here, counsel sent Appellant a letter advising him, inter alia, that he

had the right to proceed pro se on the appeal, and the right to raise any

points he deemed worthy of this Court’s consideration.          (See Letter of

Counsel to Mark A. Henderson, 6/23/16).7

____________________________________________


7
  It is apparent that at the time of the appeals, Appellant was still
represented by counsel. Accordingly, Appellant’s pro se notice of appeal
(Footnote Continued Next Page)


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J-S69034-16


      Appellant proceeded to file with this Court a petition to proceed pro se,

on July 1, 2016; a pro se motion to withdraw the no-contest plea, on August

2, 2016; and a motion to vacate sentence, on August 5, 2016. On August

22, 2016, Appellant also filed a pro se motion for habeas corpus relief. The

motions and the petition were deferred, per curiam, to this merit panel for

disposition. (See Order, 8/04/16).

      The trial court filed a 1925(a) Memorandum on May 16, 2016.             See

Pa.R.A.P. 1925(a). Appellant filed a pro se brief, on July 12, 2016. On July

27, 2016, he filed a reply brief in response to counsel’s petition to withdraw

and Anders brief.

      Before addressing the merits of Appellant’s claims, we must first

review counsel’s petition to withdraw.            See Commonwealth v. Goodwin,

928 A.2d 287, 290 (Pa. Super. 2007) (en banc).             Prior to withdrawing as

counsel on a direct appeal under Anders, counsel must file a brief that

meets the requirements established by our Supreme Court in Santiago,

supra.

      The brief must: (1) provide a summary of the procedural history and

facts, with citations to the record; (2) refer to anything in the record that
                       _______________________
(Footnote Continued)

appears to be an example of hybrid representation. However, in view of
counsel’s subsequent filing of a Rule 1925(b) statement of errors on behalf
of Appellant, the trial court’s acceptance of it, and this Court’s sua sponte
consolidation of Appellants appeals, as well as counsel’s proper advice that
Appellant could appeal pro se, we give Appellant the benefit of the doubt and
proceed to review his subsequent appeal.



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J-S69034-16


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, or statutes on point that have

led to the conclusion that the appeal is frivolous. See Santiago, supra at

361.

       Counsel must also provide Appellant with a copy of the Anders brief,

together with a letter that advises the appellant of his or her right to

proceed pro se, as already noted.

       Substantial compliance with these requirements is sufficient.      See

Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007).

“After establishing that the antecedent requirements have been met, this

Court must then make an independent evaluation of the record to determine

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

903 A.2d 1244, 1246 (Pa. Super. 2006) (citation omitted).

       Here, counsel filed a petition to withdraw from further representation,

along with the Anders brief that concluded Appellant’s appeal is frivolous.

The petition further explains that counsel notified Appellant of the

withdrawal request and sent Appellant a letter explaining his right to proceed

pro se or with new, privately-retained counsel to raise any additional points

or arguments that Appellant believed had merit.        In the Anders brief,

counsel provides a summary of the facts and procedural history of the case


                                     -7-
J-S69034-16


with citations to the record, refers to evidence of record that might arguably

support the issue raised on appeal, provides citations to relevant case law,

and states his conclusion that the appeal is wholly frivolous and the reasons

for the conclusion. Accordingly, we conclude that counsel has substantially

complied with the requirements of Anders and Santiago.

        Because counsel’s petition and brief satisfy the requirements of

Anders and Santiago, we will undertake our own review of the appeal to

determine if it is wholly frivolous.           See Palm, supra at 1246; see also

Commonwealth v. O'Malley, 957 A.2d 1265, 1266-67 (Pa. Super. 2008).

        The Anders brief raises two questions for our review:8

              1. Whether [Appellant] can raise claims of ineffective
        assistance of counsel in a direct appeal to this Court?

              2. Whether [Appellant] can challenge the discretionary
        aspect of his sentence where, as here, the plea agreement
        included a negotiated sentence which the [t]rial [c]ourt [ ]
        accepted and imposed?

(Anders Brief, at 8).

        Preliminarily, we note that:

        It is well established that a plea of nolo contendere is treated as
        a guilty plea in terms of its effect upon a given case.
        Commonwealth v. Leidig, 850 A.2d 743, 745 (Pa. Super.
        2004) (“in terms of its effect upon a case, a plea of nolo
        contendere is treated the same as a guilty plea”). We are aware
        that by entering a nolo contendere plea, a defendant does not
        admit that he is guilty. Commonwealth v. Lewis, 791 A.2d
____________________________________________


8
    The Commonwealth did not file a brief in this appeal.




                                           -8-
J-S69034-16


      1227 (Pa. Super. 2002); see also Commonwealth v. Moser,
      999 A.2d 602 (Pa. Super. 2010). “As the United States Supreme
      Court has held, a plea of nolo contendere is ‘a plea by which a
      defendant does not expressly admit his guilt, but nonetheless
      waives his right to a trial and authorizes the court for purposes
      of sentencing to treat him as if he were guilty.’ North
      Carolina v. Alford, 400 U.S. 25, 36, 91 S. Ct. 160, 167, 27
      L.Ed.2d 162, 170 (1970).” Lewis, supra at 1234 (emphasis
      added). “[T]he difference between a plea of nolo contendere
      and a plea of guilty is that, while the latter is a confession
      binding defendant in other proceedings, the former has no effect
      beyond the particular case.” Moser, supra at 606 (quoting
      Commonwealth ex rel. Monaghan v. Burke, 167 Pa. Super.
      417, 74 A.2d 802, 804 (1950)).           Thus, for purposes of
      proceedings relating to the charges, Appellant agreed to be
      treated as guilty of the crimes.

Commonwealth v. V.G., 9 A.3d 222, 226–27 (Pa. Super. 2010).

      Next, we observe that, as correctly noted by counsel, the trial court

properly decided that Appellant’s claims of ineffective assistance of counsel

may only be raised on collateral appeal. (See Anders Brief, at 18; Trial Ct.

Op., at 1); see also Commonwealth v. Grant, 813 A.2d 726, 739 (Pa.

2002) (holding that, with exceptions not applicable to this appeal, general

rule is that petitioner should wait to raise claims of ineffective assistance of

trial counsel until collateral review); Commonwealth v. Holmes, 79 A.3d

562, 563 (Pa. 2013) (reaffirming general rule of Grant deferring claims of

ineffective assistance of counsel to PCRA review).

      Counsel also concluded correctly that the trial court properly decided

that when a plea agreement includes a negotiated sentence accepted and

imposed by the sentencing court, there is no authority to challenge the

discretionary aspects of that sentence. (See Anders Brief, at 19; Trial Ct.

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J-S69034-16


Op., at 2); see also Commonwealth v. Dalberto, 648 A.2d 16 (Pa. Super.

1994), appeal denied, 655 A.2d 983 (Pa. 1995), cert. denied, 516 U.S. 818

(1995):

      [I]n a negotiated plea agreement, where a sentence of specific
      duration has been made part of a plea bargain, it would clearly
      make a sham of the negotiated plea process for courts to allow
      defendants to later challenge their sentence; this would, in
      effect, give defendants a second bite at the sentencing process.

Id. at 21 (citation and internal quotation marks omitted) (emphasis added).

Accord, O'Malley, supra at 1267 (holding one who pleads guilty and

receives negotiated sentence may not then seek discretionary review of that

sentence) (citing Dalberto, at 20).

      Therefore, we agree with counsel and the trial court that the questions

raised in the Anders brief are wholly frivolous.          Next, we make an

independent evaluation of the record to determine whether the appeal is, in

fact, wholly frivolous.   See Palm, supra at 1246; see also O’Malley,

supra at 1267. In that context, we review the additional claims raised by

Appellant himself.

      In his pro se brief, Appellant raises the following questions:

             1. Was a plea of nolo contendere unlawfully induced where
      the Appellant is innocent of the charges?         Did [c]ounsel’s
      ineffectiveness prevent the plea from being voluntary, knowing,
      or intelligent?

            2. Did [c]ounsel fail to advocate for the Appellant in the
      plea [bargaining] process and at a [minimum] should have
      presented evidence of mitigation resulting in a more favorable
      outcome of the plea [bargaining] process with lesser charges
      and a lesser prison sentence?

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J-S69034-16



            3. Is there a factual basis for the charges according to the
      plain language of the [statute] and is the Appellant innocent of
      the charges in which he was unlawfully induced to plea [sic] nolo
      contendere?

            4. Did the court and prosecution err in violating Appellant’s
      eighth amendment rights protecting him from excessive bail and
      cruel and unusual punishment?

           5. Was the Appellant prejudiced by breech agreements
      where there was no reasonable basis no [sic] to honor those
      agreements?

            6. Does Appellant’s sentence violate the priniciple [sic] of
      proportionality, that the punishment should not exceed the
      gravity of the offense and did the court err in failing to rule on
      Appellant’s timely motion to modify sentence?

            7. Does sufficent [sic] evidence exist of arguable merit to
      support suppression of evidence which counsel failed to advise
      the Appellant of?

            8. Should the charges be quashed and dismissed or in lieu
      of a complete or partial dismissal, Appellants [sic] plea of nolo
      contendere should be withdrawn, the Appellant’s sentence
      should be vacated, and be set at liberty on bail?

([Pro Se] Brief for Appellant, at 6).

            As a prefatory matter, although this Court is willing to
      construe liberally materials filed by a pro se litigant, pro se
      status generally confers no special benefit upon an appellant.
      Accordingly, a pro se litigant must comply with the procedural
      rules set forth in the Pennsylvania Rules of the Court. This Court
      may quash or dismiss an appeal if an appellant fails to conform
      with the requirements set forth in the Pennsylvania Rules of
      Appellate Procedure.

Commonwealth v. Lyons, 833 A.2d 245, 251–52 (Pa. Super. 2003),

appeal denied, 879 A.2d 782 (Pa. 2005) (citations omitted).




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J-S69034-16


     First, Appellant fails to demonstrate where in the record his claims in

his motions, petition or pro se brief were raised with the trial court (other

than the challenge to the negotiated sentence, which he abandoned by filing

his purported pro se notice of appeal before the scheduled hearing). “Issues

not raised in the lower court are waived and cannot be raised for the first

time on appeal.” Pa.R.A.P. 302(a). Accordingly, they are waived.

     Moreover, we remain mindful that:

           The law does not require that a defendant be pleased with
     the outcome of his decision to enter a plea of guilty. All that is
     required is that the defendant’s decision to plead guilty be
     knowingly, voluntarily and intelligently made.

        Pennsylvania has constructed its guilty plea procedures in
        a way designed to guarantee assurance that guilty pleas
        are voluntarily and understandingly tendered. The entry of
        a guilty plea is a protracted and comprehensive proceeding
        wherein the court is obliged to make a specific
        determination after extensive colloquy on the record that a
        plea is voluntarily and understandingly tendered. A guilty
        plea colloquy must include inquiry as to whether (1) the
        defendant understood the nature of the charge to which he
        is pleading guilty; (2) there is a factual basis for the plea;
        (3) the defendant understands that he has the right to a
        jury trial; (4) the defendant understands that he is
        presumed innocent until he is found guilty; (5) the
        defendant is aware as to the permissible range of
        sentences; and (6) the defendant is aware that the judge
        is not bound by the terms of any plea agreement unless he
        accepts such agreement. Inquiry into these six areas is
        mandatory in every guilty plea colloquy.

     In order for a guilty plea to be constitutionally valid, the guilty
     plea colloquy must affirmatively show that the defendant
     understood what the plea connoted and its consequences. This
     determination is to be made by examining the totality of the
     circumstances surrounding the entry of the plea. Therefore,
     [w]here the record clearly demonstrates that a guilty plea

                                    - 12 -
J-S69034-16


       colloquy was conducted, during which it became evident that the
       defendant understood the nature of the charges against him, the
       voluntariness of the plea is established.

Commonwealth v. Myers, 642 A.2d 1103, 1105 (Pa. Super. 1994)

(citations and internal quotation marks omitted).

       Here, our independent review of the record reveals that, prior to

accepting Appellant’s nolo plea, the trial court engaged Appellant in an

extensive colloquy in which he consistently affirmed that he understood all of

the rights he would be giving up by pleading nolo contendere.             (See N.T.

Plea and Sentencing, at 2-8).

       Nevertheless, on appeal, in addition to alleging repeatedly the

purported ineffectiveness of plea counsel, Appellant asserts that his nolo

plea was “unlawfully induced” and he is innocent.9            (Pro Se Brief, at 13).

However, he fails to develop an argument or provide pertinent facts or

controlling legal authority in support of these essentially boilerplate claims.

       Instead, in a meandering, unfocussed and non-compliant brief,

Appellant employs the simple expedient of categorically denying, whenever

conceivable to him, the factual basis of the plea presented in the affidavits of

probable cause and at the hearing.             (See Pro Se Brief, at 13-46).   As an

alternative, he attempts to re-characterize the facts of record into a self-
____________________________________________


9
  We note that under current controlling authority, a bare assertion of
innocence is not, in and of itself, a sufficient reason to require a court to
grant a request to withdraw a guilty plea.          See Commonwealth v.
Carrasquillo, 115 A.3d 1284, 1292 (Pa. 2015).



                                          - 13 -
J-S69034-16


serving narrative that he appears to believe is exculpatory. His reliance is

misplaced.

      Appellant’s challenge to the nolo contendere plea was made after
      sentencing, and the standard for withdrawing a plea is manifest
      injustice. A plea rises to the level of manifest injustice when it
      was entered into involuntarily, unknowingly, or unintelligently.
      Therefore, Appellant’s claims will be reviewed under the manifest
      injustice standard.

Commonwealth v. Stork, 737 A.2d 789, 790 (Pa. Super. 1999), appeal

denied, 764 A.2d 1068 (Pa. 2000) (citations omitted).

            Once a defendant has entered a plea of guilty, it is
      presumed that he was aware of what he was doing, and the
      burden of proving involuntariness is upon him. Therefore, where
      the record clearly demonstrates that a guilty plea colloquy was
      conducted, during which it became evident that the defendant
      understood the nature of the charges against him, the
      voluntariness of the plea is established. A defendant is bound
      by the statements he makes during his plea colloquy, and
      may not assert grounds for withdrawing the plea that
      contradict statements made when he pled.

Id. at 790–91 (1999) (citations, quotation marks and other punctuation

omitted) (emphasis added).

      For all these reasons, there is no merit to the issues Appellant raises

pro se.   He has not met his burden of proving that his nolo plea was

involuntarily entered.   He has failed to demonstrate the manifest injustice

necessary to permit him to withdraw the plea after sentence was imposed.

      The written and oral plea colloquies in this case affirmatively establish

that Appellant, a habitual offender with a long record of similar violations,

knowingly,   intelligently   and   voluntarily   agreed   to   plead   nolo,   after


                                      - 14 -
J-S69034-16


negotiating a favorable plea bargain with a fixed sentence, with RRRI

eligibility, and the nolle prossing of numerous related charges. The totality

of the circumstances contained in the record confirms that he had a full

understanding of the consequences of his decision and of the rights he would

be giving up by pleading.

      Appellant will not now be permitted to withdraw his plea by making a

bald assertion that he was innocent of the charges to which he pleaded nolo

contendere.    See Carrasquillo, supra at 1292.           An Appellant’s post-

sentence denial of guilt, particularly when the nolo plea does not include an

admission of guilt in the first place, does not rise to the level of prejudice on

the order of manifest injustice sufficient to require that he be permitted to

withdraw his plea. See Myers, supra, at 1108 (citing Commonwealth v.

Jackson, 479 A.2d 5, 6 (Pa. Super. 1984)).

      Appellant’s claims of ineffective assistance of counsel are denied

without prejudice to Appellant’s proper presentation of them in a timely filed,

procedurally compliant PCRA petition.

      We conclude that all of Appellant’s remaining pro se claims lack any

support in fact or law.     Similarly, Appellant’s pro se motion for habeas

corpus relief, relying on Birchfield v. N.D., 136 S. Ct. 2160 (2016), is

distinguishable on the facts and the law as well as its procedural posture.

Accordingly, they are all wholly frivolous. On independent review, we find

no non-frivolous claims.


                                     - 15 -
J-S69034-16


     Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/21/2016




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