J-S58007-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

NICHOLAS LOMAX,

                            Appellant                 No. 854 WDA 2013


          Appeal from the Judgments of Sentence September 20, 2011
               in the Court of Common Pleas of Allegheny County
              Criminal Division at Nos.: CP-02-CR-0007260-2010;
                            CP-02-CR-0018407-2009


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                   FILED OCTOBER 15, 2014

        In these consolidated cases, Appellant, Nicholas Lomax, appeals from

the judgments of sentence imposed following his entry of guilty pleas in case

Nos. CC 200918407 and CC 201007260.               Counsel for Appellant has

petitioned to withdraw on the ground that Appellant’s issues on appeal are

wholly frivolous.     We grant counsel’s petition to withdraw and affirm the

judgments of sentence.

        On September 20, 2011, the trial court held a guilty plea and

sentencing hearing for cases CC 200918407 and CC 201007260.1          In case
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Appellant also executed a nine-page, sixty-eight question written guilty
plea colloquy applicable to both cases while his attorney was available for
consultation.
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CC 200918407, Appellant entered an open guilty plea to one count each of

carrying a firearm without a license, possession of a firearm by a minor, and

person not to possess a firearm.2 The charges stem from a June 30, 2009

incident, during which the vehicle in which Appellant was a backseat

passenger drove directly at and nearly collided with an Allegheny County

Deputy Sheriff’s vehicle.        Deputy Shatkoff3 ordered Appellant out of the

vehicle and observed him make a kicking motion under the backseat before

exiting. Deputy Shatkoff recovered a semi-automatic pistol from under the

backseat.      At the September 20, 2011 hearing, Appellant’s counsel

requested a sentence in the mitigated range with a recommendation for boot

camp. The trial court sentenced Appellant in the standard range to a term of

forty-two to eighty-four months’ incarceration, followed by five years of

probation.4 The court did not recommend Appellant for boot camp.

        In case CC 201007260, Appellant entered a negotiated guilty plea to

one count of person not to possess a firearm.5 In exchange for this plea, the

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2
    18 Pa.C.S.A. §§ 6106(a)(1), 6110.1(a), and 6105(c)(1), respectively.
3
  Our review of the certified record did not reveal Deputy Shatkoff’s first
name.
4
  Appellant had previous adjudications in juvenile court for robbery and
possession of a firearm by a minor. (See N.T. Guilty Plea and Sentencing
Hearing, 9/20/11, at 9, 16).
5
    18 Pa.C.S.A. § 6105(c)(1).




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Commonwealth withdrew the remaining charges brought against Appellant,

specifically, one count of carrying a firearm without a license and three

counts each of terroristic threats and simple assault.6            The charges arose

from an April 25, 2010 report to police by Appellant’s next-door neighbor

that Appellant had displayed a semi-automatic firearm to her ten and eleven

year old grandchildren and threatened to shoot and kill them. The trial court

sentenced Appellant to a term of not less nineteen nor more than thirty-

eight months’ incarceration. Pursuant to the plea agreement, the court ran

this    sentence   concurrently      with      the   sentence   imposed   in   case   CC

200918407.

        Appellant did not file post-sentence motions or a direct appeal.

Counsel for Appellant filed a petition to withdraw from representation, and

the court granted the petition and appointed new counsel. On September

20, 2012, Appellant filed a counseled PCRA petition. On October 30, 2012,

the PCRA court entered an order granting the petition and reinstating

Appellant’s post-sentence and direct appeal rights.

        On November 9, 2012, Appellant filed post-sentence motions in which

he sought to withdraw his guilty pleas or have the court reconsider his

sentence.     On April 18, 2013, the post-sentence motions were denied by




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6
    18 Pa.C.S.A. §§ 6106(a)(1), 2706(a)(1), and 2701(a)(3), respectively.



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operation of law.        See Pa.R.Crim.P. 720(B)(3)(b).    This timely appeal

followed.7

       On June 10, 2014, counsel for Appellant filed an Anders8 brief and a

petition to withdraw as counsel stating her belief that this appeal is wholly

frivolous.   (See Motion to Withdraw as Counsel, 6/10/14, at unnumbered

page 4).     Counsel has submitted to this Court a copy of her letter to

Appellant, enclosing a copy of the Anders brief, informing him of the

petition to withdraw, and advising him of his right to retain new counsel or

proceed with the appeal pro se. (See Letter from Christy P. Foreman, Esq.

to Appellant, 6/10/14, at unnumbered page 1).              Appellant has not

responded.

       [I]n the Anders brief that accompanies . . . 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 statutes
       on point that have led to the conclusion that the appeal is
       frivolous.

Santiago, supra at 361.
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7
  Pursuant to the trial court’s order, Appellant filed a timely statement of
errors complained of on appeal on September 5, 2013. See Pa.R.A.P.
1925(b). The court filed a Rule 1925(a) opinion on December 5, 2013. See
Pa.R.A.P. 1925(a).
8
  Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).



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          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 to either 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.

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

(citations omitted).

      In the instant case, counsel has complied with the Anders and

Santiago requirements.     She has submitted a brief that summarizes the

case, (see Anders Brief, at 7-11); referred to anything that might arguably

support the appeal, (see id. at 13, 18, 22); and set forth her reasoning and

conclusion that the appeal is frivolous, (see id. at 12-22). See Santiago,

supra at 361.    Counsel has filed a petition to withdraw, sent Appellant a

letter advising that she concluded that there are no non-frivolous issues,

provided him with a copy of the Anders brief, and notified him of his right to

retain new counsel or proceed pro se. 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

O’Malley, supra at 1266.


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      The Anders Brief raises the following issues for our review:

      1.   Whether Appellant’s guilty plea was unlawfully induced
      because it was not knowing, intelligent, and voluntary[?]

      2.   Whether      the   sentence   imposed    upon   Appellant     was
      excessive[?]

(Anders Brief, at 6).

      In his first issue, Appellant challenges the validity of his guilty pleas,

claiming that the pleas were unlawfully induced because he did not

knowingly, intelligently and voluntarily enter them. (See Anders Brief, at

13). Specifically, Appellant argues that the pleas were invalid because the

trial court rejected the negotiated plea agreement and inappropriately

refused to make a recommendation for boot camp.             (See id.).    He also

asserts that trial counsel did not fully explain the plea agreement to him.

(See id.). This issue does not merit relief.

      “Our law is clear that, to be valid, a guilty plea must be knowingly,

voluntarily and intelligently entered.”    Commonwealth v. Pollard, 832

A.2d 517, 522 (Pa. Super. 2003) (citation omitted). “[T]he decision as to

whether to allow a defendant to [withdraw a guilty plea] is a matter within

the sound discretion of the trial court.”          Id. (citation omitted).     “In

considering whether the [trial] court abused its discretion in not permitting

withdrawal of the plea it must be emphasized that there is an important

distinction between presentencing attempts to withdraw a guilty plea and

post-sentencing attempts.”      Commonwealth v. Shaffer, 446 A.2d 591,

592-93 (Pa. 1982).

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            [A]fter the court has imposed a sentence, a defendant can
      withdraw his guilty plea only where necessary to correct a
      manifest injustice. [P]ost-sentence motions for withdrawal are
      subject to higher scrutiny since courts strive to discourage the
      entry of guilty pleas as sentencing-testing devices. . . .

      . . . [A] manifest injustice occurs when a plea is not tendered
      knowingly, intelligently, voluntarily, and understandingly.

                                  *    *    *

            The 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.

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

and quotation marks omitted).

      “Rule 590 of the Pennsylvania Rules of Criminal Procedure requires

that a guilty plea be offered in open court, and provides a procedure to

determine whether the plea is voluntarily, knowingly, and intelligently

entered.”   Commonwealth v. Yeomans, 24 A.3d 1044, 1046-47 (Pa.

Super. 2011) (citation omitted).      The comment to the rule provides, in

pertinent part:

      At a minimum the judge should ask questions to elicit the
      following information:

      (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 trial by jury?

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     (4) Does the defendant understand that he or she is presumed
     innocent until found guilty?

     (5) Is the defendant aware of the permissible range of sentences
     and/or fines for the offenses charged?

     (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?

Pa.R.Crim.P. 590, Comment.

     When addressing an appellate challenge to the validity of a guilty plea,

we are mindful that “[a] person who elects to plead guilty is bound by the

statements he makes in open court while under oath and may not later

assert grounds for withdrawing the plea which contradict the statements he

made at his plea colloquy.” Yeomans, supra at 1047 (citation omitted).

     Here, at the guilty plea and sentencing hearing, the Commonwealth

explained that there was no plea agreement with respect to case CC

200918407. (See N.T. Guilty Plea and Sentencing Hearing, 9/20/11, at 3).

The Commonwealth further explained that, in case CC 201007260, there

was a negotiated plea agreement pursuant to which the Commonwealth

agreed to withdraw the remaining charges brought against Appellant and the

sentence would run concurrently with the sentence in case CC 200918407.

(See id. at 3-4). Appellant indicated that he understood the terms of the

plea agreement and that he did not have any questions.       (See id. at 4).

The court went over the charges brought against Appellant and the

maximum potential sentences and fines that it could impose, and the

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Commonwealth explained the factual bases for the pleas. (See id. at 4-9).

The court engaged Appellant in an oral colloquy in which it apprised him of

his right to a trial and of the Commonwealth’s burden of proof. (See id. at

10). Appellant assured the court that he understood his rights, that he was

pleading guilty to the charges because he was guilty, and that there had

been no threats or promises made to influence him to plead guilty. (See id.

at 10-11; see also id. at 16).

       With respect to the written plea colloquy, Appellant indicated that he

filled out the form while counsel was available for consultation, that he

understood its contents, and that he did not have any questions about the

form.9 (See id. at 12). Appellant also averred that he was satisfied with

counsel’s representation.        (See id. at 12-13).   The trial court accepted

Appellant’s guilty pleas and stated its finding that Appellant understood the

proceedings and knowingly, intelligently, and voluntary entered the pleas.

(See id. at 13). The court advised Appellant of his right to file a petition

seeking withdrawal of his guilty pleas before sentencing, and Appellant

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9
  In the written plea colloquy, Appellant acknowledged, inter alia, that he:
(1) was aware of the nature of the charges to which he was pleading guilty
(see Guilty Plea Colloquy, 9/20/11, at 2 ¶¶ 6, 8); (2) understood the factual
bases for the pleas (see id. at ¶ 7) (3) understood his right to trial by jury
(see id. at ¶ 9); (4) understood that he was presumed innocent until proven
guilty (see id. at 3 ¶ 17); (5) was aware of the permissible range of
sentences for the offenses charged (see id. at 7 ¶ 44); and (6) understood
that the court was not bound by the terms of the plea agreement (see id. at
8 ¶ 58); see also Pa.R.Crim.P. 590, Comment.



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expressly gave up this right and elected to proceed immediately to

sentencing. (See id.). When the court asked Appellant what he wished to

say on his behalf, Appellant responded, “I accept the plea.” (Id. at 15).

      During the sentencing portion of the hearing, Appellant’s counsel

requested a sentence in the mitigated range with a recommendation for boot

camp.   (See id. at 15).    However, counsel also advised: “I did explain to

[Appellant] that this is just a recommendation. That doesn’t always mean it

is going to happen. . . . I explained that to [Appellant’s] mother and they are

fully aware of it.”   (Id.). The court declined to recommend boot camp or

impose a mitigated-range sentence, explaining:

      I’m not going to recommend boot camp.          I think he is a
      dangerous person.      He has guns, guns, and more guns.
      Robbery. It doesn’t seem to matter that he has a conviction
      pending. He gets another one. I think this is ridiculous to have
      anything less than a standard range sentence in this case. And I
      will not recommend boot camp, because again, I don’t think
      that’s appropriate for someone who was involved in this much
      criminal activity.

                                 *    *       *

               I think this [sentence] is appropriate, due to the fact
      that [Appellant] has been involved with firearms throughout his
      young life. Pretty often, it seems, and these are certainly
      situations that are just [rife] with potential disaster— . . . a
      young man with a firearm, over and over, repeatedly after he
      has been caught and told and knows not to continue and
      continues to break the law with [p]ossession of a [f]irearm and
      these charges. That’s it. I think this is appropriate. It is a
      standard range sentence. . . .

(Id. at 17-19).




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       Thus, a review of the record belies Appellant’s claims that the trial

court rejected the plea agreement and inappropriately refused to make a

recommendation for boot camp. Further, Appellant stated on the record that

he understood the terms of the plea agreement and that he “accept[ed] the

plea” (id. at 15; see id. at 3-4); he cannot now “assert grounds for

withdrawing the plea which contradict the statements he made at his plea

colloquy.” Yeomans, supra at 1047 (citation omitted). Upon examination

of the totality of the circumstances, see Prendes, supra at 352, we

conclude that the record wholly supports the trial court’s finding that

Appellant knowingly, intelligently and voluntarily pleaded guilty. Therefore,

the court did not abuse its discretion in denying Appellant’s post-sentence

request to withdraw his guilty pleas.              See Pollard, supra at 522.

Appellant’s first issue lacks merit.10

       In his second issue, Appellant challenges the discretionary aspects of

his sentence.       Specifically, he argues that the sentence imposed was


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10
   To the extent Appellant argues that counsel was ineffective in connection
with entry of the guilty pleas (see Anders Brief, at 2, 13; Commonwealth’s
Brief, at 14), we dismiss his claim without prejudice, should he decide to
pursue it in a timely-filed PCRA petition. See Commonwealth v. Holmes,
79 A.3d 562, 563 (Pa. 2013) (reaffirming general rule that ineffective
assistance of counsel claims must await collateral review); see also
Commonwealth v. Stollar, 84 A.3d 635, 652 (Pa. 2014), cert. denied, 134
S.Ct. 1798 (2014) (dismissing, pursuant to Holmes, appellant’s ineffective
assistance of counsel claims raised on direct appeal without prejudice to
pursue them on collateral review).



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excessive even though it was within the standard range.        (See Anders

Brief, at 6, 18, 22). This issue does not merit relief.

      Our standard of review in sentencing matters is well settled:

            Sentencing is a matter vested in the sound discretion of
      the sentencing judge, and a sentence will not be disturbed on
      appeal absent a manifest abuse of discretion. An abuse of
      discretion is more than just an error in judgment and, on appeal,
      the trial court will not be found to have abused its discretion
      unless the record discloses that the judgment exercised was
      manifestly unreasonable, or the result of partiality, prejudice,
      bias, or ill-will.

Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa. Super. 2013), appeal

denied, 85 A.3d 481 (Pa. 2014) (citation omitted).

      However, “[t]he right to appeal the discretionary aspects of a sentence

is not absolute.”   Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa.

Super. 2011) (citation omitted).

             Before we reach the merits of this [issue], we must engage
      in a four part analysis to determine: (1) whether the appeal is
      timely; (2) whether Appellant preserved his issue; (3) whether
      Appellant’s brief includes a concise statement of the reasons
      relied upon for allowance of appeal with respect to the
      discretionary aspects of sentence [See Pa.R.A.P. 2119(f)]; and
      (4) whether the concise statement raises a substantial question
      that the sentence is appropriate under the sentencing code. . . .
      [I]f the appeal satisfies each of these four requirements, we will
      then proceed to decide the substantive merits of the case.

Commonwealth v. Edwards, 71 A.3d 323, 329-30 (Pa. Super. 2013),

appeal denied, 81 A.3d 75 (Pa. 2013) (citations and quotation marks

omitted).




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       In the instant case, Appellant has complied with the first two

requirements because he filed a timely notice of appeal and preserved his

claim in a timely post-sentence motion.            See id.   While the Anders brief

does not contain a Rule 2119(f) statement, we decline to find waiver in light

of counsel’s petition to withdraw. See Commonwealth v. Lilley, 978 A.2d

995,   998     (Pa.   Super.    2009)     (addressing   appellant’s   challenges   to

discretionary aspects of sentence despite deficient Rule 2119(f) statement in

Anders brief); see also Commonwealth v. Hernandez, 783 A.2d 784,

787 (Pa. Super. 2001) (concluding that Anders requires review of issues

otherwise waived on appeal).11 With respect to the fourth requirement:

             The determination of what constitutes a substantial
       question must be evaluated on a case-by-case basis.         A
       substantial question exits only when the appellant advances a
       colorable argument that the sentencing judge’s actions were
       either: (1) inconsistent with a specific provision of the
       Sentencing Code; or (2) contrary to the fundamental norms
       which underlie the sentencing process.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013), appeal

denied, 77 A.3d 1258 (Pa. 2013) (citations and quotation marks omitted).

This Court has held that “a bald assertion that a sentence is excessive does

not by itself raise a substantial question justifying this Court’s review of the

merits of the underlying claim.” Commonwealth v. Fisher, 47 A.3d 155,
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11
  We also decline to find waiver on the basis that the Commonwealth has
not objected to Appellant’s failure to include a Rule 2119(f) statement. See
Commonwealth v. Titus, 816 A.2d 251, 255 (Pa. Super. 2003).




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159 (Pa. Super. 2012), appeal denied, 62 A.3d 378 (Pa. 2013) (citation

omitted). Thus, Appellant’s bald claim that his sentence is excessive does

not raise a substantial question. See id.

     Moreover, after independent review of the record, see O’Malley,

supra at 1266, we conclude that Appellant’s claim that his sentence is

excessive is frivolous, and the trial court did not abuse its discretion in

imposing the sentence. See Clarke, supra at 1287. As discussed above,

the trial court comprehensively stated on the record its reasons for its

determination that, based on Appellant’s history of illegal involvement with

firearms, a sentence in the mitigated rage with a recommendation for boot

camp was inappropriate. Furthermore, we determine that there are no other

non-frivolous bases for appeal, and this appeal is “wholly frivolous.”

O’Malley, supra at 1266.

     Judgments of sentence affirmed.        Petition for leave to withdraw as

counsel granted.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/15/2014




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