J-S03023-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                  :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
 SEAN HENNESSY                                 :
                                               :
                        Appellant              :   No. 353 EDA 2018

                   Appeal from the Order January 26, 2018
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): MC-51-CR-0031792-2016


BEFORE: BENDER, P.J.E., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.:                                FILED MARCH 06, 2019

      Appellant, Sean Hennessy, appeals from the order entered on January

26, 2018, denying his petition for writ of certiorari to the Municipal Court of

Philadelphia.    On this appeal, Appellant’s court-appointed counsel has filed

both a petition for leave 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 for leave to withdraw and affirm the order denying certiorari.

      On May 17, 2017, Appellant entered an open guilty plea, in the Municipal

Court of Philadelphia, to the misdemeanor charges of simple assault and
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recklessly endangering another person (“REAP”). During the plea hearing, the

Commonwealth summarized the factual basis for the plea:

        If this case would have gone to trial, the Commonwealth’s
        evidence would show [that,] on or about . . . August 12,
        2016[, the victim, J.T. (hereinafter “the Victim”)] was outside
        of his residence [in Philadelphia when] he observed
        [Appellant] with another individual[. The Victim] believed
        that [Appellant] was causing injury to that other individual
        and attempted to step in and break it up. When he did so,
        this angered [Appellant]. When [the Victim] turned around,
        he was struck by [Appellant]. This assault was witnessed by
        another individual who would also be a witness for the
        Commonwealth. Because of the strike, [the Victim] fell to
        the ground striking the car and then the sidewalk on the way
        to the ground. He was subsequently admitted to the hospital
        where he was diagnosed with [a] traumatic brain injury.

N.T. Guilty Plea Hearing, 5/17/17, at 11-12.

     Appellant agreed to the facts as stated by the Commonwealth and the

municipal court accepted Appellant’s plea. Id. at 12. On August 28, 2017,

the municipal court sentenced Appellant to serve a term of two to 23 months

in jail, followed by two years of probation, for his convictions.         N.T.

Sentencing, 8/28/17, at 17.

     On September 5, 2017, Appellant filed a post-sentence motion to

withdraw his guilty plea. Within the motion, Appellant claimed that he should

be permitted to withdraw his plea because he is innocent and because his plea

counsel rendered ineffective assistance during the plea process. Appellant’s

Motion to Withdraw Plea, 9/5/17, at 1; N.T. Plea Withdrawal Hearing,

10/31/17, at 4 and 6. Appellant explained the basis for his motion during the

October 31, 2017 hearing:


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        Well, Your Honor, in the beginning I wanted to go to trial with
        this, because I believe I’m innocent totally. What [the
        Victim] has said was fabricated.

        I don’t think I was [represented] correctly either because I
        got a second opinion and they said it’s a winnable case. . . .

        Well, I was led to believe to take the case and go and don’t
        waste the court’s time and stuff. And that pleading guilty I
        would get probation and I can still go to work and finish my
        probation, pay my fines, whatever. I just wanted it over with.

        I don’t want . . . no more trouble. But that’s definitely not
        what happened. And I was good with what I thought was
        going to happen. But this is – this is gong to set me back –
        it’s going to set me back, especially with my job. And [my
        attorney] did say you’re a lenient judge, you know, and
        pleading me out you wouldn’t be so harsh. And that’s what
        I went with. And if I had known that, I would have definitely
        took it to trial, Your Honor.

                                       ...

        I’m committed to my boss five days a week where I do
        weekend work on my own. I am the only provider for my
        kids. . . . And [my sentence] would just – from what I believe
        what’s going to happen when we talked before I got
        sentenced, I was okay with it, because [my attorney] was
        leaning towards you not giving me jail time because of I
        wouldn’t want to waste the court’s time and money.

                                       ...

        The reason that I did believe that I was going to get probation
        is I didn’t maliciously attack that person. Like, it wasn’t, like,
        some brutality, like brutal, like it was some malicious act or
        something.

N.T. Plea Withdrawal Hearing, 10/31/17, at 9 and 12-17 (some internal

capitalization omitted).




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      The municipal court denied Appellant’s motion on October 31, 2017. On

November 18, 2017, Appellant filed, in the Court of Common Pleas of

Philadelphia County, a petition for a writ of certiorari to the Municipal Court of

Philadelphia. Appellant’s Petition for Writ of Certiorari, 11/18/17, at 1. The

court of common pleas denied certiorari on January 26, 2018 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 counsel accompanied this petition with an Anders brief. The

Anders brief raises one claim:

        The lower court erred in denying [Appellant’s] post-sentence
        motion to withdraw his guilty plea as [Appellant] did not enter
        the plea knowingly, voluntarily[,] and intelligently, because
        [Appellant] received ineffective assistance of plea counsel
        and [Appellant] asserts he is factually innocent, and that the
        lower court’s denial of his post-sentence motion to withdraw
        his guilty plea amounted to a manifest injustice.

Appellant’s Brief at 12 (internal emphasis omitted).

      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.”



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

counsel:

         (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; see also

Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en

banc) (holding that the Anders procedure requires this Court to review “the

entire record with consideration first of the issues raised by counsel. . . . [T]his

review does not require this Court to act as counsel or otherwise advocate on

behalf of a party. Rather, it requires us only to conduct a review of the record

to ascertain if[,] on its face, there are non-frivolous issues that counsel,

intentionally or not, missed or misstated. We need not analyze those issues

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of arguable merit; just identify them, deny the motion to withdraw, and order

counsel to analyze them”).         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 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.    Our review begins with the claim

Appellant raises in his brief.

      Although Appellant numbers one claim in his brief, the claim is

composed of three sub-claims. Specifically, Appellant claims that the court of

common pleas erred in denying certiorari because:         his plea counsel was

ineffective during the plea process; he is innocent of the charges; and, he

would not have pleaded guilty if he had known he was going to receive jail

time. See Appellant’s Brief at 12-20. These claims are frivolous.

      First, Appellant claims that he is entitled to relief because his plea

counsel was ineffective.         This claim is unreviewable on direct appeal.

Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002) (“as a general rule,

a [defendant] should wait to raise claims of ineffective assistance of trial

counsel until collateral review”); Commonwealth v. Holmes, 79 A.3d 562,

620 (Pa. 2013) (“absent [certain, specified] circumstances [(that are

inapplicable to the case at bar)] claims of ineffective assistance of counsel are

to be deferred to PCRA review; trial courts should not entertain claims of




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ineffectiveness upon post-verdict motions; and such claims should not be

reviewed upon direct appeal”). The claim is thus frivolous.

      We will consider Appellant’s second and third sub-claims together. As

Appellant claims, the court of common pleas erred in denying his petition for

certiorari because he is innocent of the charges and because he would not

have pleaded guilty if he had known he was going to receive jail time.

      “[A] defendant has no absolute right to withdraw a guilty plea; rather,

the decision to grant such a motion lies within the sound discretion of the trial

court.” Commonwealth v. Muhammad, 794 A.2d 378, 382 (Pa. Super.

2002). We have previously determined:

        Post-sentence motions for withdrawal are subject to higher
        scrutiny [than pre-sentence motions] since courts strive to
        discourage entry of guilty 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 [] 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. A deficient plea does not per se establish prejudice on
        the order of manifest injustice.

Commonwealth v. Broaden, 980 A.2d 124, 129 (Pa. Super. 2009) (internal

citations and quotations omitted).

      Initially, Appellant claims that the municipal court erred when it denied

his post-sentence motion to withdraw his guilty plea – and that the court of

common pleas erred in denying his petition for certiorari – because he is

innocent of the charges against him.        Appellant’s Brief at 19.   However,



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Appellant did not elucidate upon his innocence claims in his court filings or

during the hearing on his motion to withdraw his guilty plea. Rather, Appellant

has simply made a bare assertion of innocence, which is insufficient to obtain

relief even in the context of a pre-sentence motion to withdraw a guilty plea.

Commonwealth v. Carrasquillo, 115 A.3d 1284, 1285 and 1293 (Pa. 2015)

(“a bare assertion of innocence is not, in and of itself, a sufficient reason to

require a court to grant . . . a pre[-]sentence motion to withdraw a guilty

plea”). In the context of a post-sentence motion to withdraw a plea, the claim

is frivolous. See Broaden, 980 A.2d at 129 (“[p]ost-sentence motions for

withdrawal are subject to higher scrutiny [than pre-sentence motions] since

courts strive to discourage entry of guilty pleas as sentence-testing devices”).

      Appellant also claims that he should have been entitled to withdraw his

guilty plea because, prior to entering the plea, his attorney made him believe

that he was going to receive probation. See Appellant’s Brief at 15. Appellant

claims that he would not have pleaded guilty if he had known he was going to

receive jail time. Id. at 15-16.

      To the extent Appellant’s claim sounds in plea counsel’s ineffectiveness,

the claim is frivolous. See supra at *6. Moreover, to the extent this claim

attempts to demonstrate the manifest injustice necessary to withdraw a plea,

the claim is frivolous because Appellant entered an open guilty plea to the

misdemeanor charges. See N.T. Guilty Plea Hearing, 5/17/17, at 9 and 12-13.

Thus, Appellant had no reasonable expectation that he would receive

probation in this case.

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       We have independently considered the sub-claims raised within

Appellant’s brief and we have determined that the claims are frivolous. In

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

might arguably support this appeal.1 The appeal is therefore wholly frivolous.

Accordingly, we affirm the order denying Appellant’s petition for writ of

certiorari and grant counsel’s petition for leave to withdraw.

       Petition for leave to withdraw appearance granted.        Order affirmed.

Jurisdiction relinquished.




____________________________________________


1 Admirably, the Commonwealth highlights the absence of any record evidence
that Appellant was informed of the maximum sentence he would face if he
pleaded guilty.      See Commonwealth’s Brief at 9-11.          We thank the
Commonwealth for its candor. Nevertheless, Appellant did not raise any such
claim before the lower courts. Therefore, the claim is waived. Pa.R.A.P.
302(a) (“[i]ssues not raised in the lower court are waived and cannot be raised
for the first time on appeal”); Commonwealth v. Rush, 959 A.2d 945, 949
(Pa. Super. 2008) (“a request to withdraw a guilty plea on the grounds that it
was involuntary is one of the claims that must be raised by motion in the trial
court in order to be reviewed on direct appeal”); see also Pa.R.Crim.P.
1007(A). Since the claim is waived, the claim is frivolous under Anders.
Commonwealth v. Tukhi, 149 A.3d 881, 888-889 (Pa. Super. 2016)
(holding that, under Anders, “[a]n issue that is waived is frivolous”);
Commonwealth v. Kalichak, 943 A.3d 285, 291 (Pa. Super. 2008) (holding:
“this issue has been waived. Having been waived, pursuing this matter on
direct appeal is frivolous”).


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/6/19




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