J-S88005-16


NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA,               1   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

KENYA CLARKE,

                         Appellant                        No. 503 EDA 2016


         Appeal from the Judgment of Sentence of December 14, 2015
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP- 23 -CR- 0004775 -2015


BEFORE:    OLSON, RANSOM AND STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                              Filed January 17, 2017

      Appellant, Kenya Clarke, appeals from the judgment of sentence

entered on December 14, 2015, as made final by the denial of Appellant's

post- sentence motion    on January   11,   2016.     On      this direct appeal,

Appellant's court -appointed counsel has filed both   a    petition to withdraw as

counsel and an accompanying brief pursuant to Anders v. California, 386

U.S. 738 (1967) and      Commonwealth v. Santiago, 978 A.2d 349               (Pa.

2009).     We conclude that Appellant's counsel       has     complied with the

procedural requirements necessary to affect withdrawal.           Moreover, after

independently reviewing the record, we conclude that the instant appeal         is

wholly frivolous.   We, therefore, grant counsel's petition to withdraw and

affirm Appellant's judgment of sentence.

      The trial court has ably summarized the underlying facts of this case:



*Retired Senior Judge assigned to the Superior Court.
J-S88005-16


          On    May 11, 2015, [Appellant] was arrested and [the
          Commonwealth subsequently] charged [him] with[:]             1)
          receiving stolen property; 2) possession of a small amount
          of marijuana; 3) criminal misconduct/damaging property
          intentionally, recklessly or negligently; 4) disorderly conduct
          - engaged in fighting[;] 5) disorderly conduct [; 6)]
          firearms not to be carried without a license; [7)] []
          possession of a controlled substance       .   .   ;
                                                             .  and[, 8)]
          use /possession of drug paraphernalia.        The prosecution
          proceeded with charges one and two, while charges three
          through [eight] were dropped.

          On   December 14, 2015, [Appellant] entered into a
          negotiated guilty plea to counts one and two, to serve a
          max[imum] sentence of [23] months, with credit for time
          served from May 12, 2015 to August 11, 2015.
          Additionally, [Appellant] was sentenced to one year of
          probation to be served consecutively, and per count two,
          [30] days of probation to be served concurrently.
          [Appellant] also agreed to undergo a drug and alcohol
          evaluation and enroll in and successfully complete any
          recommended treatment...          .




Trial Court Opinion, 7/18/16, at    1 -2.


        On December 21, 2015, Appellant filed a motion to         withdraw his guilty

plea.   Within Appellant's motion, Appellant alleged that "a medical condition

prevented him from making       a   knowing, intelligent[,] and voluntary plea."

Appellant's Motion to Withdraw Guilty Plea, 12/21/15, at         1.

        On January 11, 2016, the parties appeared before the          trial court for   a

hearing on the motion.       During the hearing, Appellant testified that he

remembered pleading guilty on December 14, 2015 and that he was not




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taking any medication that day.' N.T. Post -Trial Motion Hearing, 1/11/16, at

5 -6.    Moreover, in regards to whether Appellant's failure to take medication

that day affected his "condition, "2 Appellant testified:

              My therapist said I should have been taking it and I should
              have told the judge that I had mental problems, but I don't
              - I've been living with this problem all my life and I thought
              it was normal. I don't think it's a mental problem, but she
              said it is.

Id. at   6.

         Appellant also testified       that he currently takes the prescription
medication Prozac and "another medicine           .   .   .   I'm not sure what it's called."

Id. at   10.

         Other than the above testimony, Appellant presented no evidence that

even touched upon whether he suffered from "a medical condition [that]

prevented him from making           a   knowing, intelligent[,] and voluntary plea. "3

' The record    is unclear as to whether Appellant had a prescription for
medication on the day he pleaded guilty and there is no evidence as to what
that prescription might have been.

2   There   is no   evidence as to what Appellant's "condition" might have been.

3  During the post -trial motion hearing, Appellant introduced, and the trial
court admitted, a letter that was, apparently, written by a "Ms. Evans." The
letter was admitted for the purpose of "allow[ing the letter]          to speak
                                                                              .   .   .


[to] the testimony of Ms. Evans who would come and testify to this." N.T.
Post -Trial Motion Hearing, 1/11/16, at 3 -4. The letter was not read into
evidence and it is not included in the certified record. As such, we consider
the letter "to be non -existent" on appeal. Commonwealth v. Kennedy,
868 A.2d 582, 593 (Pa. Super. 2005), quoting Eichman v. McKeon, 824
A.2d 305, 316 (Pa. Super. 2003) ( "this Court may not consider anything that
is not part of the official certified record: [a]ny document which is not part of
(Footnote Continued Next Page)


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Appellant's Motion to Withdraw Guilty Plea, 12/21/15, at 1; see N.T. Post -

Trial Motion Hearing, 1/11/16, at   1   -11.

      The trial court denied Appellant's motion to withdraw his guilty plea on

January 11, 2016 and Appellant filed      a    timely notice of appeal to this Court.

      On appeal, Appellant's court -appointed counsel filed a petition for

leave to withdraw and accompanied this petition with an Anders brief.

Counsel's Anders brief raises one potential appellate claim:

         Was the trial court in error for denying [Appellant's] motion
         to withdraw his guilty plea when same was not knowingly,
         voluntarily[,] and intelligently made?
Appellant's Brief at 4.

      Before reviewing the merits of this appeal, this Court must first

determine whether appointed counsel has fulfilled the necessary procedural

requirements for withdrawing as counsel.            Commonwealth v. Miller, 715
A.2d 1203, 1207 (Pa. Super. 1998).

      To withdraw under     Anders, court -appointed counsel must satisfy
certain technical requirements.     First, counsel must "petition the court for

leave to withdraw stating that, after making         a   conscientious examination of

the record, counsel has determined that the appeal would be frivolous."

Miller, 715 A.2d at 1207. Second, counsel must file              an   Anders brief,   in

which counsel:

(Footnote Continued)

the official certified record is considered to be non -existent ") (internal
quotations omitted).


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         (1) provide[s] a summary of the procedural history and
         facts, with citations to the record; (2) refer[s] to anything in
         the record that counsel believes arguably supports the
         appeal; (3) set[s] forth counsel's conclusion that the appeal
         is frivolous;    and (4) state[s] 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.
      Finally, counsel must furnish   a   copy of the Anders brief to his or her

client and advise the client "of [the client's] right to retain new counsel,

proceed pro se or raise any additional           points worthy of this Court's

attention."   Commonwealth v. Woods, 939 A.2d 896, 898               (Pa. Super.

2007).

      If counsel meets    all of the above obligations,    "it then becomes the
responsibility of the reviewing court to make        a   full examination of the

proceedings and make an independent judgment to decide whether the

appeal is in fact wholly frivolous." Santiago, 978 A.2d at 355 n.5.     It   is   only

when all of the procedural and substantive requirements are satisfied that

counsel will be permitted to withdraw.

      In the case at bar, counsel substantially complied with all of the above

procedural obligations.    We must, therefore, review the entire record and

analyze whether this appeal is, in fact, wholly frivolous.




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      On appeal, Appellant claims           that the trial court erred    in   denying his

post- sentence motion to withdraw his guilty plea.                 Appellant's claim on

appeal is frivolous.

      This Court has summarized the applicable standard of review and

substantive rules regarding an order denying              a     post- sentence motion to

withdraw   a   guilty plea:

         A defendant who    attempts to withdraw a guilty plea after
         sentencing must demonstrate prejudice on the order of
         manifest injustice before withdrawal is justified. A showing
         of manifest injustice may be established if the plea was
         entered into involuntarily, unknowingly, or unintelligently.



         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 [trial] court is obliged to make a specific
         determination after extensive colloquy on the record that a
         plea is voluntarily and understandingly tendered.

         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. As noted
         in the Comment to Rule 590, at a minimum the trial court
         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 no /o
               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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J-S88005-16



          (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.

       This Court has further summarized:

          In order for   guilty plea to be constitutionally valid, the
                         a
          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. Thus, even though there is an
          omission or defect in the guilty plea colloquy, a plea of
          guilty will not be deemed invalid if the circumstances
          surrounding the entry of the plea disclose that the
          defendant had a full understanding of the nature and
          consequences of his plea and that he knowingly and
          voluntarily decided to enter the plea.

       Finally, we apply the following when addressing an appellate
       challenge to the validity of a guilty plea:

          Our law presumes that a defendant who enters a guilty
          plea was aware of what he was doing. He bears the
          burden of proving otherwise.

          The longstanding rule of Pennsylvania law is that a
          defendant may not challenge his guilty plea by asserting
          that he lied while under oath, even if he avers that
          counsel induced the lies. 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.


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J-S88005-16


             A defendant who elects to plead     guilty has a duty to
             answer questions truthfully. We [cannot] permit a
             defendant to postpone the final disposition of his case by
             lying to the court and later alleging that his lies were
             induced by the prompting of counsel.

Commonwealth v. Yeomans, 24 A.3d 1044, 1046 -1047                 (Pa. Super. 2011)

(internal corrections and footnotes omitted) (some internal citations and

quotations omitted).

      In the case at bar, Appellant sought to withdraw his guilty plea

because, he claimed, he suffered from "a medical condition [that] prevented

him from making    a   knowing, intelligent[,] and voluntary plea." Appellant's

Motion to Withdraw Guilty Plea, 12/21/15, at 1.                However, during the

hearing on Appellant's post- sentence motion, Appellant introduced                 no

evidence:    that he suffered from an identifiable medical condition; that his
"condition" affected his ability to enter   a   knowing, intelligent, and voluntary

plea; or, that his "condition" affected him in any manner whatsoever. Thus,

Appellant failed to satisfy his burden of production, as Appellant failed to put

forth any evidence to show that his plea was not knowing, intelligent, and

voluntary. See Commonwealth v. Bedell, 954 A.2d 1209, 1212 -1213 (Pa.

Super. 2008) ( "[o]nce     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, Appellant's claim that "the

trial court [erred in] denying [his] motion to withdraw his guilty plea"            is

frivolous.




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J-S88005-16



      We have independently considered the issue raised within Appellant's

brief and we have determined that the claim    is   frivolous. In addition, after

an independent review of the entire record, we see nothing that might

arguably support this appeal.      The appeal is therefore wholly frivolous.

Accordingly, we affirm Appellant's judgment of sentence and grant counsel's

petition to withdraw appearance.

      Petition to withdraw appearance granted.          Judgment of sentence

affirmed. Jurisdiction relinquished.



Judgment Entered.




J: seph   Seletyn,
          D.
Prothonotary


Date: 1/17/2017




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