J-S49035-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

CARMITA HUDENLL-TRIGGS,

                            Appellant               No. 3610 EDA 2015


           Appeal from the Judgment of Sentence October 19, 2015
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0004691-2015

BEFORE: PANELLA, J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                        FILED JUNE 13, 2016


       Appellant Carmita Hudenll-Triggs1 appeals from the judgment of

sentence entered in the Court of Common Pleas of Delaware County on

October 19, 2015, at which time she was sentenced to two years’ county

probation and restitution in the amount of $2,114.99 following her

negotiated guilty plea to one count of Criminal Mischief. 2      In addition,

Appellant's counsel has filed a petition to withdraw his representation and a

brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18
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1
  We note that in both the trial court record and in documents filed with this
Court, Appellant’s name is spelled inconsistently. While in some instances it
is Hudenll-Triggs, in other it is Hudnell-Triggs.
2
  18 Pa.C.S.A. § 3304(A)(5). This subsection indicates a person is guilty of
criminal mischief if she “intentionally damages real or personal property of
another[.]”



*Former Justice specially assigned to the Superior Court.
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L.Ed.2d 493 (1967), and Commonwealth v. Santiago, 602 Pa. 159, 978

A.2d 349 (2009). After a careful review, we grant counsel's petition to

withdraw and affirm Appellant’s judgment of sentence.

      Appellant’s charges arose following an incident on May 19, 2015, at

which time Officer Arthur Erle responded to a report of criminal mischief at

32 Oxford Street, Upper Darby.     Upon arrival, Officer Erle discovered pink

paint had been poured over a 2006 Chevrolet Equinox which had been

parked in the street.   Officer Erle obtained video surveillance showing an

individual walking toward the vehicle and pouring a colored substance

thereon. On May 26, 2015, Appellant spoke with Officer Erle after reading

and signing the Upper Darby Township Police Advisement of Rights form.

Upon viewing a still photograph obtained from the video surveillance,

Appellant identified the individual as herself and completed a signed, written

statement wherein she admitted to pouring paint on the victim’s vehicle.

See Affidavit of Probable Cause, filed 7/15/15. Appellant was charged with

one count of criminal mischief, and the matter was held for court.

      A preliminary hearing was held on August 7, 2015, and Appellant was

arraigned on September 2, 2015. On October 14, 2015, Appellant filed an

omnibus pretrial motion wherein she maintained she had not knowingly,

intelligently and voluntarily waived her constitutional right to remain silent

and to be represented by counsel at her police interrogation. A hearing on

the motion was scheduled for October 19, 2015; however, at that time


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Appellant entered her negotiated guilty plea. After conducting an extensive

colloquy with Appellant, the trial court accepted her guilty plea and

subsequently sentenced her. Thereafter, Appellant filed a timely motion to

withdraw her plea on October 29, 2015, and on November 5, 2015, the trial

court held a hearing on that motion.

      At the hearing, Appellant indicated that although she still was satisfied

with trial counsel’s representation of her, she had been “a little confused”

when she entered her plea, because she “did not do it.” N.T., 11/5/15, at 9-

10. Appellant generally asserted her innocence and stated she thought the

police wanted to question her because her grandson had been seen hanging

out of a window. Id. at 11. She claimed she had been “set up” by police

because she told them she did not damage the vehicle and did not know the

victim. Id. at 12.   She further represented that due to numerous physical

impairments, it would have been impossible for her to cause the damage

and indicated she had problems reading and writing which affected her

ability to complete the written colloquy. Id. at 13, 17. She stated she lied

to police because they told her she would go to jail, and she was afraid. Id.

at 13, 24.

      The trial court denied Appellant’s motion on November 5, 2015, and

Appellant filed a timely appeal on December 4, 2015. On December 7, 2015,

the trial court filed its Order pursuant to Pa.R.A.P. 1925. On December 22,

2015, appellate counsel filed his Statement of Matters Complained of on


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Appeal wherein he indicated his intent to file an Anders brief with this

Court.   As noted above, counsel filed a petition to withdraw and an

Anders/Santiago brief with this Court on March 22, 2016.

      Before reviewing the merits of the underlying issue Appellant presents,

we first consider counsel’s petition to withdraw.           Commonwealth v.

Orellana, 86 A.3d 877, 879 (Pa.Super. 2014).

      When presented with an Anders brief, this Court may not review
      the merits of the underlying issues without first passing on the
      request to withdraw. Commonwealth v. Goodwin, 928 A.2d
      287, 290 (Pa.Super. 2007) (en banc). Before counsel is
      permitted to withdraw, he or she must meet the following
      requirements:
           First, counsel must petition the court for leave to
           withdraw and state that after making a conscientious
           examination of the record, he has determined that the
           appeal is frivolous; second, he must file a brief
           referring to any issues in the record of arguable merit;
           and third, he must furnish a copy of the brief to the
           defendant and advise him of his right to retain new
           counsel or to himself raise any additional points he
           deems worthy of the Superior Court's attention.
      Santiago, 602 Pa. at 178–79, 978 A.2d at 361.2
      FN2. The requirements set forth in Santiago apply to cases
      where the briefing notice was issued after August 25, 2009, the
      date the Santiago opinion was filed. As the briefing notice in
      this case was issued after Santiago was filed, its requirements
      are applicable here. Commonwealth v. Martuscelli, 54 A.3d
      940, 947 (Pa.Super. 2012).

Commonwealth v. Bynum-Hamilton, 2016 WL 639004 at 3-4 (Pa. Super.

filed Feb. 17, 2016).

      Herein,   we      have   reviewed   counsel’s   Application   to   Withdraw

Appearance and his accompanying correspondence which he served upon

Appellant. In the letter, counsel indicated he was enclosing the Application

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to Withdraw along with his Anders brief and explained that if Appellant had

any issues she wished to pursue before this Court, she must do so

immediately either pro se or with the assistance of new counsel.3 We also

have examined the Anders brief counsel prepared.            These documents

satisfy us that counsel has complied with all of the foregoing requirements;

therefore, we next analyze the issue of arguable merit counsel presented in

her Anders brief to make an independent judgment as to whether the

appeal is, in fact, wholly frivolous.      Commonwealth v. Bynum-Hamilton,

2016 WL 639004 at 4 (citing Santiago, supra).           Specifically, Appellant

questions:

              Whether the Hearing Court should have permitted
        [Appellant] to withdraw her guilty plea after she professed her
        innocence of the charge against her and stated she was confused
        at the time she entered the plea.

Brief of Appellant at 1.

        There is no absolute right to withdraw a guilty plea, and the decision

as to whether to allow a defendant to do so is a matter within the sound

discretion of the trial court. Commonwealth v. Muhammad, 794 A.2d 378,

382 (Pa.Super. 2002). A trial court's decision to deny a defendant's motion

to withdraw her guilty plea is subject to an abuse-of-discretion standard of

review.     Commonwealth v. Broaden, 980 A.2d 124, 128 (Pa.Super.
____________________________________________


3
    Appellant has not responded to the application to withdraw as counsel.




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2009).     Post-sentence motions to withdraw a guilty plea are subject to

higher scrutiny than those filed before one’s sentence is imposed to

discourage the entry of guilty pleas as “sentence-testing devices.”    Id. at

129 (citation omitted).    Thus, in order to withdraw a guilty plea after

sentence is imposed, a defendant must demonstrate that a manifest

injustice would result if the court were to deny her post-sentence motion to

withdraw her plea. Id. Manifest injustice is present when “the plea was not

tendered knowingly, intelligently, and voluntarily.” Id. (citation omitted).

When determining if a guilty plea is valid, we must examine the totality of

circumstances surrounding it. Id. (citation omitted).   It is well-established

that a defendant's disappointment in the sentence imposed upon her does

not constitute “manifest injustice.” Commonwealth v. Pollard, 832 A.2d

517, 522 (Pa.Super. 2003) (citation omitted).

      Herein, the record belies Appellant’s contentions the trial court should

have permitted her to withdraw her guilty plea. At the outset of her guilty

plea hearing, Appellant indicated to the trial court that she fully had

reviewed with counsel and signed each page of her guilty plea statement

and that she would not need any additional time to speak privately with

counsel regarding information contained therein.     N.T., 10/19/15, at 4-5.

However, Appellant added she was “trying to figure out why I’m signing

something that I don’t even know this lady. I don’t think—I don’t know her

at all.”   Id. at 5.   Following this assertion, the trial court explained to


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Appellant that she did not have to plead guilty, reminded her trial counsel

had filed a suppression motion, and stated that it would hear evidence on

the motion the next day if she so chose.            The trial court further warned

Appellant that once it started to hear evidence, the Commonwealth would no

longer be committed to the plea deal and again offered Appellant an

opportunity to confer with counsel; Appellant did so.                 Id. at 5-6.4

Thereafter, Appellant indicated she intended to proceed with the plea and

had no additional questions or concerns for the trial court regarding the

Criminal Information itself or the description of it in the guilty-plea

statement. Id. at 7-8.

       The trial court informed Appellant of the elements of criminal mischief

after which she indicated she was satisfied with counsel’s representation,

asked the trial court to accept her guilty plea and requested that the court

sentence her to the recommended probationary term.                    Id. at 9-10.

Appellant was informed of her post-sentence rights, and she indicated she

understood them without further explanation from counsel. Id. at 11.

        The    aforementioned        contradicts   Appellant’s   assertions   at   the

November 5, 2015, hearing regarding her inability to comprehend the nature

of her guilty plea and her general claim of her innocence. Consequently,


____________________________________________


4
 The notes of testimony indicate “[off the record from 1:12 p.m. to 1:29
p.m.]” N.T., 10/19/15, at 6.



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after an independent review of this appeal, we find Appellant’s issue to be

frivolous, and we grant counsel’s petition to withdraw.

      Petition to Withdraw Granted. Judgment of Sentence Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/13/2016




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