J-S60019-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

RONALD J. BRILEY

                            Appellant                       No. 443 MDA 2014


      Appeal from the Judgment of Sentence entered November 20, 2013
               In the Court of Common Pleas of Dauphin County
               Criminal Division at No: CP-22-CR-0003888-2011


BEFORE: OTT, STABILE, and JENKINS, JJ.

MEMORANDUM BY STABILE, J.:                            FILED NOVEMBER 05, 2014

        Ronald J. Briley appeals from the judgment of sentence entered

following his guilty plea to murder of the second degree. Appellant’s court-

appointed counsel has filed an Anders1 brief and petitioned to withdraw,

contending that this appeal is wholly frivolous. We affirm the judgment of

sentence and grant the petition to withdraw.

        On February 4, 1996, Appellant, then 14 years old, and two others

robbed Sun’s Market, located on South 16th Street in Harrisburg.               After

completing the robbery and while fleeing the store, Appellant shot the co-

owner, Chong Kwak, in the head.                The resulting injuries rendered Kwak

comatose, a state in which he lingered for nearly 16 years. Appellant was
____________________________________________


1
    Anders v. California, 386 U.S. 738 (1967).
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tried as an adult, found guilty of aggravated assault, robbery, criminal

conspiracy, and other charges following a non-jury trial, and sentenced to 20

to 41 years in prison.        This Court affirmed the judgment of sentence on

direct appeal. Commonwealth v. Briley, 724 A.2d 952 (Pa. Super. 1998)

(unpublished memorandum).

       On June 22, 2011, Kwak died. The cause of death was determined to

be complications from the gunshot wound, and Appellant was charged with

first and second degree murder.2 On September 4, 2013, Appellant entered

an open guilty plea to second degree murder. In exchange for his plea, the

Commonwealth withdrew the charge of first degree murder. Because of his

age at the time of the shooting, Appellant was not subject to a mandatory

sentence of life without parole.3 Rather, he faced 20 years to life in prison.

The trial court later sentenced Appellant to 35 years to life in prison, with

credit for time served and concurrent to his prior sentences. Appellant filed

a post-sentence motion, asking for modification of sentence and withdrawal

of his guilty plea.       The trial court denied the motion, and this appeal

followed.

____________________________________________


2
    18 Pa.C.S.A. § 2502(a) and (b).
3
   See Miller v. Alabama, 132 S. Ct. 2455 (2012) (holding that mandatory
life without parole for juvenile murderers is cruel and unusual punishment);
18 Pa.C.S.A. § 1102.1(c)(1) (“A person who at the time of the commission
of the offense was under 15 years of age shall be sentenced to a term of
imprisonment the minimum of which shall be at least 20 years to life.”).



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      On appeal, counsel has directed the Court’s attention to two possibly

meritorious issues: (1) a challenge        to   the   discretionary aspects of

Appellant’s sentence; and (2) a challenge to the trial court’s denial of

Appellant’s post-sentence motion to withdraw his guilty plea.

      Before we consider the merits, we must address whether counsel has

complied with the requirements to withdraw from representation under

Anders.    See Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa.

2009).

      To withdraw under Anders/Santiago, counsel must (1) petition this

Court for leave to withdraw after certifying that a thorough review of the

record indicates the appeal is frivolous; (2) file a brief referring to anything

in the record that might arguably support the appeal; and (3) give the

appellant a copy of the brief and advise the appellant of the right to obtain

new counsel or file a pro se brief to raise any additional points for review.

Commonwealth v. Millisock, 873 A.2d 748, 751 (Pa. Super. 2005).

Additionally, the Anders/Santiago 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 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.


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Santiago, 978 A.2d at 361.

        We find that counsel has complied with Anders and Santiago.

Counsel has petitioned for leave to withdraw, filed a brief that refers us to

anything that might support the appeal, and informed Appellant of his right

to hire a new lawyer or file a pro se response.4 Furthermore, counsel’s brief

meets Santiago’s substantive requirements listed above.

        We now conduct an independent review to determine whether this

appeal is indeed frivolous. The first issue identified by counsel is a challenge

to the discretionary aspects of Appellant’s sentence. Appellant asserts that

his sentence is excessive and unreasonable, because the trial court failed to

account for his social changes that occurred during his sentence for robbery

and aggravated assault, i.e., the trial court failed to take into account

mitigating factors.

        We review a decision regarding the discretionary aspects of a sentence

for an abuse of discretion. Commonwealth v. Disalvo, 70 A.3d 900, 903

(Pa. Super. 2013).

        Assuming, arguendo, that a substantial question exists5 as to the

appropriateness of Appellant’s sentence, the claim is frivolous. A trial court

____________________________________________


4
    Appellant has not filed a response.
5
 An appellant is entitled to review of the discretionary aspects of a sentence
only if, among other requirements, he raises a substantial question that the
sentence is inappropriate under the Sentencing Code.             42 Pa.C.S.A.
§ 9781(b); Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa.
(Footnote Continued Next Page)


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has discretion to impose a sentence greater than the mandatory minimums

required for juvenile murderers. 18 Pa.C.S.A. § 1102.1(e).          Here, the trial

court had the benefit of a presentence investigation report. It addressed the

seriousness of the crime and its impact upon Kwak and his family. See Trial

Court Opinion, 2/11/14, at 4-5. The trial court noted that Appellant, though

an impressionable youth, shot Kwak in the head after he and his

conspirators completed the robbery.               Id.   The trial court also found

significant Appellant’s numerous, serious disciplinary problems during the

early years of his incarceration.

      The second issue identified by counsel is Appellant’s request to

withdraw his guilty plea, first made after the trial court imposed sentence.

On the record following imposition of sentence and in his written post-

sentence motion, Appellant expressed dissatisfaction with the length of his

sentence. See N.T. Sentencing, 11/20/13, at 15-16; Post-Sentence Motion,

11/25/13, ¶ 18.

      [P]ost-sentence motions for withdrawal are subject to higher
      scrutiny since courts strive to discourage entry of guilty
                       _______________________
(Footnote Continued)

Super. 2014) (en banc). “A substantial question exists 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.” Buterbaugh, 91 A.3d at 1266 (quotation omitted). A
claim that the trial court failed to take into account mitigating factors does
not raise a substantial question. Disalvo, 70 A.3d at 903; Commonwealth
v. Matroni, 923 A.2d 444, 455 (Pa. Super. 2006).



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      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.

Commonwealth v. Kelly, 5 A.3d 370, 377 (Pa. Super. 2010) (internal

quotations, citations, and quotation marks omitted) (emphasis added)

(quotation omitted); see also Commonwealth v. Starr, 301 A.2d 592,

594-95 (Pa. 1973) (requiring proof of manifest injustice for post-sentence

withdrawal of guilty plea, because a more liberal standard “obviously would

be useful as a sentence testing device, and, if permitted with any degree of

liberality, would invite abuse”).

      We have thoroughly reviewed the record, and agree with counsel that

Appellant’s challenge is frivolous. At the guilty plea hearing, the trial court,

Commonwealth, and Appellant engaged in an extensive colloquy. See N.T.

Guilty Plea, 9/4/13, at 2-12. In addition to the factual basis for the plea,

Appellant was extensively colloquied on the potential sentence he could

receive. See id. at 6 (informing Appellant that under his open guilty plea,

his sentence was      “at least 20 years to life,” and that the minimum

sentence could be anything from 20 years to life).      Moreover, in his post-

sentence motion, Appellant did not even attempt to argue that he entered

the plea unknowingly, unintelligently, or involuntarily. Rather, the sole basis

for the withdrawal request is his dissatisfaction with the sentence imposed.

Sentence dissatisfaction is not a valid reason to withdraw a guilty plea post-


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sentence where the defendant is aware of the possible sentencing range.

Commonwealth v. Muhammad, 794 A.2d 378, 383 (Pa. Super. 2002)

(“We note that disappointment by a defendant in the sentence actually

imposed does not represent manifest injustice.”).

     Having reviewed the record and applicable law, we find that this

appeal   is   wholly   frivolous.   Appellant’s   counsel   complied   with   the

requirements to withdraw under Anders/Santiago. Accordingly, we affirm

the judgment of sentence and grant the petition to withdraw.

     Judgment of sentence affirmed. Petition to withdraw granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/5/2014




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