J-S48032-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

DANIEL LYNN BRECHT

                            Appellant                       No. 193 WDA 2015


          Appeal from the Judgment of Sentence of October 6, 2014
              In the Court of Common Pleas of Warren County
           Criminal Division at Nos.:  CP-62-CR-0000524-2013
                                       CP-62-CR-0000525-2013


BEFORE: PANELLA, J., DONOHUE, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                              FILED SEPTEMBER 22, 2015

       Daniel Lynn Brecht appeals his two October 6, 2014 judgments of

sentence.     Brecht’s counsel has filed a petition to withdraw as counsel,

together with an Anders brief.1 We find that Brecht’s counsel has satisfied

the Anders/Santiago requirements and that Brecht has no meritorious

issues to pursue on appeal.         Consequently, we grant counsel’s petition to

withdraw as counsel, and we affirm Brecht’s judgments of sentence.

       In his two criminal cases, Brecht was charged initially with a total of

one hundred and seventy-four charges relating to the protracted sexual

abuse of two different children.               Following plea negotiations with the
____________________________________________


1
     See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981), abrogated in part by
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
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Commonwealth, Brecht agreed to plead guilty to one count each of rape by

forcible compulsion, statutory sexual assault, sexual assault, aggravated

indecent assault, indecent assault of a person less than thirteen years old,

and corruption of the morals of a minor.2        All other charges were nolle

prossed by the Commonwealth.

       On June 16, 2014, Brecht appeared before the trial court to plead

guilty according to the negotiated terms as set forth above.     At the guilty

plea hearing, Brecht, who was sixty-three years-old at the time of his plea,

confirmed that he was not under the influence of alcohol or controlled

substances at the time of the plea. He further declared that he understood

all of the constitutional rights that he was waiving by entering guilty pleas,

and that he had no questions for the court in that regard. Brecht stated that

he was entering the plea on his own free will, that there were no promises

made to him with regard to the sentence that he would receive, and that he

was not forced or threatened to take the plea. Brecht conceded that he had

ample time to consult with his attorney, and that he was satisfied with his

attorney’s advice.       Finally, Brecht confirmed his understanding that, by

pleading guilty to multiple offenses, he could receive consecutive sentences

for each crime to which he pleaded guilty. The trial court accepted the plea,


____________________________________________


2
      18 Pa.C.S. §§ 3121(a)(1), 3122.1, 3142.1, 3125, 3126(a)(7), and
6301, respectively. The facts supporting the guilty pleas are immaterial to
our disposition of this case, and we need not recite them here.



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and ordered Brecht to be evaluated for purposes of a sexually violent

predator hearing.

       On September 19, 2014, Brecht appeared for sentencing.             First,

following a hearing, the trial court determined that Brecht met the criteria

for a sexually violent predator, and designated him as such.3 The trial court

then proceeded to sentence Brecht to an aggregate sentence of one hundred

and eighty-eight months to three hundred and seventy-six months’

incarceration.      The aggregate sentence was comprised of individual

sentences on each count, and the trial court ordered each sentence to run

consecutively to each other.

       After sentencing, the parties and the court detected that the indecent

assault count was incorrectly graded as a felony. Consequently, the parties

appeared on October 16, 2014 for re-sentencing. At that hearing, the court

corrected the grading of the indecent assault count, and imposed the same

sentence as set forth above. At the conclusion of that hearing, Brecht made

an oral motion to withdraw his guilty plea. The trial court advised Brecht of

his appellate rights, and that the time constraints to take any appellate

actions commenced on that date, not the date of the original sentence.




____________________________________________


3
      Those criteria, as well as the bases for satisfying those criteria in this
case, are not as issue in this case. Therefore, we need not elaborate any
further on the sexually violent predator assessment and designation.



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Accordingly, the court rejected the oral motion, and directed Brecht to file a

written motion within ten days.

      On October 20, 2014, Brecht’s plea counsel filed a motion to withdraw

as counsel, wherein counsel identified not only his reasons for seeking

withdrawal as counsel, but also the bases for Brecht’s desire to withdraw his

guilty plea.   Following a hearing, the trial court granted the motion, and

appointed an attorney from the Public Defender’s Office to represent Brecht.

On November 14, 2014, Brecht filed a second written motion to withdraw his

guilty plea, wherein Brecht maintained his innocence to the charges. Brecht

alleged that his trial counsel indicated to him that, if he pleaded guilty, the

Commonwealth would not object to a sentence of eighty-four to one hundred

and sixty-eight months’ incarceration.

      On January 8, 2015, the trial court held a hearing on Brecht’s motion

to withdraw his guilty plea.   At the hearing, Brecht testified that his plea

attorney had assured him that, by pleading guilty, he would only receive a

minimum sentence of seven years in prison.       Based upon that assurance,

Brecht elected to plead guilty because, if he went to trial and was convicted,

any sentence that he would receive would be much longer.           Despite his

statements at his guilty plea hearing, Brecht maintained at the withdrawal

hearing that he did not have sufficient time to talk with his attorney, and

that he was not satisfied with counsel’s advice and performance at the time.

However, on     cross-examination,   Brecht   admitted   that   counsel   never

promised or guaranteed any particular sentence.          Brecht asserted that

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counsel directed him to plead guilty based upon counsel’s reasonable

assurances that he would receive seven years in prison, and that the

Commonwealth would not oppose such a sentence.

     Plea counsel testified at the hearing that he had multiple conversations

with Brecht prior to the guilty plea hearing regarding the sentences that

could be imposed by the trial court.      Counsel further testified that he

discussed the ultimate plea agreement that counsel had reached with the

Commonwealth, and informed Brecht only that the standard range sentences

for the crimes to which he would plead pursuant to the agreement would

approximate a minimum term of seven years. Counsel further testified that

no one from the Commonwealth had agreed to that sentence, or agreed to

recommend such a sentence.       Counsel told Brecht only that he did not

believe that the Commonwealth would object to that recommendation, not

that the Commonwealth actually agreed to anything with regard to the

sentence.     Indeed, in one letter, counsel indicated that it was his

understanding    that   the   Commonwealth    would   not   object   to   the

recommendation.     Nonetheless, counsel testified that he discussed with

Brecht at length that the trial court could reject the recommendation, and

could sentence Brecht to more, or even less, than what counsel would

recommend to the court.       Counsel stated that he believed that Brecht

understood that no sentence was agreed upon, and that Brecht often

exhibited concern and anxiety about the sentence because no one knew

what sentence the trial judge would impose.

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      At the conclusion of the hearing, the trial court denied Brecht’s motion

to withdraw his guilty plea.   On the same day, the trial court entered an

order formally denying the motion, and advising Brecht that he had thirty

days to file an appeal. On January 28, 2015, Brecht filed a notice of appeal.

On January 29, 2015, the trial court directed counsel to file a concise

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

On February 18, 2015, counsel for Brecht file a Rule 1925(b) statement in

which counsel indicated that he had reviewed the record and concluded that

there were no non-frivolous issues to pursue on appeal.          Nonetheless,

counsel identified one issue that might arguably support an appeal: that the

trial court abused its discretion in denying Brecht’s motion to withdraw his

guilty plea because counsel induced Brecht to plead guilty based upon the

assurance that Brecht would receive a minimum sentence of approximately

seven years. On March 9, 2015, the trial court issued an opinion pursuant

to Pa.R.A.P. 1925(a).

      As noted, counsel has filed an Anders brief and a motion to withdraw

as counsel.    Counsel for Brecht has identified one issue that arguably

supports Brecht’s appeal, but ultimately concludes that the issue has no

discernible merit. Counsel sets forth that issue as follows:

      1. Did [the trial court] abuse [its] discretion in denying
         [Brecht’s] post-sentence motion to withdraw his guilty plea,
         as he was under the impression from his previous attorney
         that he would receive a minimum sentence of seven [] years’
         incarceration?



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Anders Brief for Brecht at 6.

     Because counsel for Brecht proceeds pursuant to Anders and

Santiago, this Court first must pass upon counsel’s petition to withdraw

before   reviewing   the   merits   of   the   issue   presented    by   Brecht.

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en

banc). Prior to withdrawing as counsel under Anders, counsel must file a

brief that meets the requirements established by our Supreme Court in

Santiago. The brief must provide the following information:

     (1) a summary of the procedural history and facts, with
     citations to the record;

     (2) reference to anything in the record that counsel believes
     arguably supports the appeal;

     (3)   counsel’s conclusion that the appeal is frivolous; and

     (4) 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, 978 A.2d at 361.

     Counsel also must provide a copy of the Anders brief to his client.

Attending the brief must be a letter that advises the client of his rights 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.”

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

also Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010).


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Finally, to facilitate our review of counsel’s satisfaction of his obligations,

counsel must attach to his petition to withdraw the letter that he transmitted

to his client.   See Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa.

Super. 2005).

      Our review of counsel’s petition to withdraw and the accompanying

brief demonstrates that counsel has satisfied the Anders requirements.

Counsel has provided procedural and factual histories of this case, detailing

the facts and events relevant to this appeal with appropriate citations to the

record.   Anders Brief for Brecht at 2-5.        Counsel also has articulated

Brecht’s positions and has analyzed the issues in light of the record with

appropriate citations to the record and case law.     Id. at 7-8.   Ultimately,

counsel has concluded that Brecht has no non-frivolous bases for challenging

his sentence. Id. at 9.

      Counsel also has sent Brecht a letter informing him that he has

identified no non-frivolous issues to pursue on appeal; that counsel has filed

an application to withdraw as Brecht’s attorney; and that Brecht may find

new counsel or proceed pro se.        Counsel has attached the letter to his

petition to withdraw, as required by Millisock. See Petition to Withdraw as

Counsel, 5/13/2015.       Accordingly, counsel has complied substantially with

Anders’ technical requirements. See Millisock, 873 A.2d at 751. Notably,

Brecht has not filed a response with this Court to counsel’s Anders Brief, the

letter that counsel sent to him, or the motion to withdraw as counsel.




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        We must now conduct an independent review of the record to

determine whether this appeal is, as counsel claims, wholly frivolous, or if

any non-frivolous issues may remain. Santiago, 978 A.2d at 355 (“[T]he

court—not counsel—then proceeds, after a full examination of all the

proceedings, to decide whether the case is wholly frivolous. If it so finds it

may grant counsel’s request to withdraw[.]”) (quoting Anders, 386 U.S. at

744).

        We begin with the issue identified by counsel, whether the trial court

abused its discretion by denying Brecht’s motion to withdraw his guilty plea.

We will not disturb the decision denying a post-sentence motion to withdraw

a guilty plea absent an abuse of discretion.      An abuse of discretion is not

merely an error judgment.        Commonwealth v. Prysock, 972 A.2d 539,

541 (Pa. Super. 2009). A trial court abuses its discretion when “the law is

overridden    or   misapplied,   or   the   judgment   exercised   is   manifestly

unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown

by the evidence or the record.”       Id. at 541 (quoting Commonwealth v.

Chambers, 685 A.2d 96, 104 (Pa. 1996)).

        We first note that there is no absolute right to withdraw a guilty plea.

Commonwealth v. Flick, 802 A.2d 620, 623 (Pa. Super. 2002). Our law

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

was doing.     Commonwealth v. Stork, 737 A.2d 789, 790 (Pa. Super.

1999). He bears the burden of proving otherwise. Id. Moreover, a person

who elects to plead guilty is bound by the statements he makes in open

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court while under oath and he may not later assert grounds for withdrawing

the plea which contradict the statements he made at his plea colloquy.

Stork, 737 A.2d at 790-91

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

summarized the standards that govern post-sentence motions to withdraw a

guilty plea as follows:

      “[P]ost-sentence motions for withdrawal are subject to higher
      scrutiny [than pre-sentence motions for the same] since courts
      strive to discourage entry of guilty pleas as sentence-testing
      devices.”    Flick, 802 A.2d at 623.         A defendant must
      demonstrate that manifest injustice would result if the court
      were to deny his post-sentence motion to withdraw a guilty plea.
      Id. (citing Commonwealth v. Gunter, 771 A.2d 767 (Pa.
      2001)). “Manifest injustice may be established if the plea was
      not tendered knowingly, intelligently, and voluntarily.”
      Commonwealth v. Hodges, 789 A.2d 764, 765 (Pa. Super.
      2002) (citing Commonwealth v. Persinger, 615 A.2d 1305
      (Pa. 1992)). In determining whether a plea is valid, the court
      must examine the totality of circumstances surrounding the plea.
      Commonwealth v. Flanagan, 854 A.2d 489, 500 (Pa. 2004).
      A deficient plea does not per se establish prejudice on the order
      of manifest injustice. Commonwealth v. Carter, 656 A.2d 463
      (Pa. 1995); Commonwealth v. Yager, 685 A.2d 1000 (Pa.
      Super. 1996).

Id. at 129 (citations modified).

      Instantly, we agree with appellate counsel and the trial court that

Brecht cannot demonstrate that manifest injustice would result if he were

not permitted to withdraw his guilty plea.   First, the record unequivocally

demonstrates that Brecht’s decision to plead guilty was knowing, intelligent,

and voluntary. Second, at the guilty plea hearing, Brecht confirmed that he



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was entering the plea on his own free will, that he was not forced or

threatened in any fashion to take the plea, and that he understood that

there was no agreement regarding the sentence that he would receive.

Brecht also asserted that he was satisfied with his attorney and that his

attorney discussed the facts and possible sentences at length.        Finally,

Brecht acknowledged that the court was not bound by any agreement, and

that the court could impose all sentences to run consecutively to each other.

      At the post-sentence motion hearing, Brecht attempted to portray the

pre-trial discussions with counsel as coercive. Brecht maintained that he felt

like he was being funneled into a guilty plea based upon counsel’s

assurances that the Commonwealth would not object to a minimum prison

term of seven years and that, if he went to trial and lost, he would be

sentenced potentially to hundreds of years in prison. However, in the same

hearing, Brecht admitted that counsel did not promise or guarantee any

particular sentence if Brecht pleaded guilty. Further, counsel testified that,

although he indicated that the Commonwealth would not object to a seven-

year minimum term, he made it very clear to Brecht that there was no

agreement and that any sentence up to the statutory maximum was

possible.   Counsel explained all of the options that the trial court could

exercise in sentencing Brecht, and that nothing was certain until the court

formally imposed the sentence. Counsel testified that Brecht understood the

uncertainty of sentencing when he agreed to enter the plea, as evidenced by




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Brecht’s quite apparent concern over what sentence the trial court ultimately

would impose.

        For these reasons, it is clear that Brecht was not unlawfully or illegally

induced into pleading guilty. No promises or guarantees were made to him.

He knew at all times that there was no firm agreement on the sentence that

he would receive.       Brecht and counsel may have hoped for a seven-year

minimum term, but Brecht knew from the inception of the plea discussions

that a seven-year minimum term was not a guarantee. Thus, Brecht cannot

demonstrate manifest injustice, and the trial court did not abuse its

discretion by denying Brecht’s post-sentence motion to withdraw his guilty

plea.

        Lastly,   we   note   that,   at   times    throughout   the   post-conviction

proceedings, both counsel for Brecht and the trial court have discussed the

potential issue of whether trial counsel was ineffective during the guilty plea

process (with both concluding that counsel was not ineffective).             This is a

direct appeal. As such, claims of ineffective assistance of counsel must be

deferred until the collateral stages of the post-conviction process. Indeed, in

Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), our Supreme Court

considered “the reviewability of claims of ineffective assistance (“IAC”) of

counsel on post-verdict motions and direct appeal.” Id. at 563. Following a

comprehensive review of the language codified in the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S. §§ 9541-46, and decisions from our courts, the

Supreme Court reaffirmed the principle that ineffective assistance claims

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must be deferred until collateral review, and, thus, are not reviewable on

direct appeal. The Court crafted two exceptions to this general proscription:

first, the Court held that a trial court may, in its discretion, entertain

ineffectiveness claims where extraordinary circumstances exist such that

review of the claim would best serve the interests of justice.    Id. at 563,

577.    Second, the Court “repose[d] discretion in trial courts” to review

ineffectiveness claims during post-sentence motions “only if (1) there is

good cause shown, and (2) the unitary review so indulged is preceded by the

defendant’s knowing and express waiver of his entitlement to seek PCRA

review from his conviction and sentence, including an express recognition

that the waiver subjects further collateral review to the time and serial

restrictions of the PCRA.” Id. at 563-64, 577-80.

       In the instant case, no extraordinary circumstances exist that would

warrant review of an allegation of ineffective assistance of counsel on direct

appeal.    Furthermore, there is no indication in the record that Brecht

expressly waived his right to PCRA review.          Consequently, in light of

Holmes, any potential ineffective assistance of counsel claim is not

cognizable in this direct appeal. To the extent that Anders counsel raises

the issue herein, the claim is frivolous.

       As set forth above, we have reviewed counsel’s Anders brief carefully,

and find that it complies with the technical requirements imposed by those

precedents. We further find that counsel has taken all steps necessary to

ensure that his client’s interests are protected.     We have conducted an

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independent    review     of    the   record     and   conclude    that     counsel’s

characterization and analysis of the record are accurate, and that no non-

frivolous challenges to Brecht’s judgments of sentence will lie.           Moreover,

our   review   has   revealed    no   other     non-frivolous   issues    that   merit

consideration on appeal.

      Judgments of sentence affirmed.             Counsel’s petition to withdraw

granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/22/2015




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