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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :       IN THE SUPERIOR COURT OF
                                          :             PENNSYLVANIA
            v.                            :
                                          :
RYAN DAVID FISHER,                        :
                                          :
                  Appellant               :            No. 348 WDA 2016

          Appeal from the Judgment of Sentence February 4, 2016
              in the Court of Common Pleas of Butler County,
            Criminal Division, No(s): CP-10-CR-0001490-2015

BEFORE: PANELLA, LAZARUS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                        FILED AUGUST 16, 2016

      Ryan David Fisher (“Fisher”) appeals from the judgment of sentence

imposed following his guilty plea to organized retail theft. See 18 Pa.C.S.A.

§ 3929(3)(a).     Additionally, Jeffrey M. Thompson, Esquire (“Attorney

Thompson”), Fisher’s counsel, has filed a Petition to Withdraw as Counsel

and an accompanying brief pursuant to Anders v. California, 386 U.S. 738

(1967).   We grant Attorney Thompson’s Petition to Withdraw and affirm

Fisher’s judgment of sentence.

      In June 2015, Fisher was charged with corrupt organizations, criminal

conspiracy, organized retail theft, access device fraud, retail theft, theft by

deception, and receiving stolen property.1       Thereafter, pursuant to an

agreement with the Commonwealth, Fisher waived his preliminary hearing in

exchange for the immediate withdrawal of the corrupt organizations charge

1
 18 Pa.C.S.A. §§ 911(b)(3); 903(a)(1); 3929(3)(a); 406(a)(2); 3939(a)(1);
3922(a)(1); 3925(a).
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and a reduction in the grading of the criminal conspiracy charge from felony

1 to felony 3, with all other counts remaining as charged. On November 4,

2015, Fisher entered into a plea agreement, in which he pled guilty to

organized retail theft in exchange for a term of 90-180 days in prison, 30

months of probation, and $12,661.14 in restitution, with no further penalty

for the remaining charges. The trial court accepted the plea and sentenced

Fisher in accordance with the terms of the plea agreement. On February 16,

2016, Attorney Thompson filed a Motion to Withdraw as Counsel, which the

trial court denied.

Fisher filed a timely Notice of Appeal. Attorney Thompson subsequently filed

a Pa.R.A.P. 1925(c)(4) Notice of Intent to file an Anders brief. On May 9,

2016, Attorney Thompson filed a Petition to Withdraw as Counsel.       Fisher

filed neither a pro se brief, nor retained alternate counsel.

      In his Anders brief, Attorney Thompson has raised the following

questions for our review:

            I. Did the trial court have subject matter jurisdiction over
            the offenses charged?

            II. Was Fisher’s guilty plea knowingly, voluntarily, and
            intelligently made?

            III. Did the trial court impose an illegal sentence?




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Anders Brief at 4.2

      We must first determine whether Attorney Thompson has complied

with the dictates of Anders in petitioning to withdraw from representation.

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

(stating that “[w]hen faced with a purported Anders brief, this Court may

not review the merits of any possible underlying issues without first

examining counsel’s request to withdraw.”). Pursuant to Anders, when an

attorney believes that an appeal is frivolous and wishes to withdraw as

counsel, he or she must

      (1) [p]etition the court for leave to withdraw stating that after
      making a conscientious examination of the record, counsel has
      determined the appeal would be frivolous; (2) file a brief
      referring to any issues that might arguably support the appeal,
      but which does not resemble a no-merit letter; and (3) furnish a
      copy of the brief to the defendant and advise him of his right to
      retain new counsel, proceed pro se, or raise any additional points
      he deems worthy of this Court’s attention.

Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012)

(citation omitted).

      Additionally, the Pennsylvania Supreme Court has determined that a

proper Anders 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

2
  “Upon entering a guilty plea, a defendant waives his right to challenge on
appeal all non-jurisdictional defects except the legality of his sentence and
the validity of his plea.” Commonwealth v. Passmore, 857 A.2d 697,
708-09 (Pa. Super. 2004).

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      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 the record,
      controlling case law, and/or statutes on point that have led to
      the conclusion that the appeal is frivolous.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

      Here, Attorney Thompson has complied with the requirements set

forth in Anders by indicating that he has conscientiously examined the

record and determined that an appeal would be frivolous. Further, Attorney

Thompson provided a letter to Fisher, informing him of counsel’s intention to

withdraw and advising Fisher of his rights to retain new counsel, proceed pro

se, and file additional claims.   Finally, Attorney Thompson’s Anders brief

meets the standards set forth in Santiago by providing a factual summary

of Fisher’s case, with support for Attorney Thompson’s conclusion that

Fisher’s plea was knowingly, voluntarily, and intelligently made, that the trial

court did not impose an illegal sentence and had subject matter jurisdiction

over Fisher’s offenses, rendering his appeal wholly frivolous.         Because

Attorney Thompson has complied with the procedural requirements for

withdrawing from representation, we will independently review the record to

determine whether Fisher’s appeal is, in fact, wholly frivolous.

      In his first claim, Fisher contends that the trial court did not have

subject matter jurisdiction over the offenses charged. Anders Brief at 12.

      Subject matter jurisdiction regards the competency of a court to hear

and decide the type of issues presented. See Commonwealth v. Bethea,



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828 A.2d 1066, 1074 (Pa. 2003).           All courts of common pleas have

statewide subject matter jurisdiction in cases arising under the Crimes Code.

See id.

      Here, Fisher’s guilty plea to organized retail theft was filed in the Court

of Common Pleas of Butler County. Thus, the trial court had subject matter

jurisdiction over the charges filed against Fisher, and this claim is wholly

frivolous. See id.

      In his second claim, Fisher argues that his guilty plea was not

knowingly, voluntarily, or intelligently made. Anders Brief at 14.

            Our law is clear that, to be valid, a guilty plea must be
      knowingly, voluntarily and intelligently entered. 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. To withdraw a plea after
      sentencing, a defendant must make a showing of prejudice
      amounting to “manifest injustice.” A plea rises to the level of
      manifest injustice when it was entered into involuntarily,
      unknowingly, or unintelligently. A defendant’s disappointment in
      the sentence imposed does not constitute “manifest injustice.”

Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa. Super. 2008)

(citation omitted). In order to ensure a voluntary, knowing, and intelligent

plea, trial courts are required to ask the following questions in the guilty plea

colloquy:

      1) Does the defendant understand the nature of the charges to
         which he or she is pleading guilty or nolo contendere?

      2) Is there a factual basis for the plea?

      3) Does the defendant understand that he or she has the right to
         a trial by jury?


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      4) Does the defendant understand that he or she is presumed
         innocent until found guilty?

      5) Is the defendant aware of the permissible ranges 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?

Id. (citation omitted); see also Pa.R.Crim.P. 590, cmt. “Once 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.”

Commonwealth v. Stork, 737 A.2d 789, 790 (Pa. Super. 1999) (citation

and brackets omitted). “In determining whether a guilty plea was entered

knowingly and voluntarily, … a court is free to consider the totality of the

circumstances surrounding the plea.”    Commonwealth v. Flanagan, 854

A.2d 489, 513 (Pa. 2004) (citation and quotation marks omitted).

      Fisher indicated that at the time of his plea, he understood the English

language and he was not under the influence of alcohol or drugs. See N.T.,

11/04/15, at 2; Written Plea Colloquy, 11/04/15, at 1. Fisher confirmed that

he knew and understood the nature of the charges, the factual basis for the

plea, the permissible range of sentences and fines, and that the judge was

not bound by the terms of the plea agreement. See N.T., 11/04/15, at 3-4;

Written Plea Colloquy, 11/04/15, at 2-4. Fisher also acknowledged that by

pleading guilty, he was foregoing certain rights, including, inter alia, the

presumption of innocence, the right to file pre-trial motions and the right to


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a jury trial. See N.T., 11/04/15, at 4-5; Written Plea Colloquy, 11/04/15, at

2-3.   Based upon the foregoing, we conclude that Fisher’s guilty plea was

knowingly, voluntarily and intelligently made.     See Commonwealth v.

Kelly, 5 A.3d 370, 382 n.11 (Pa. Super. 2010) (stating that “[a] defendant

is bound by the statements he makes during his plea colloquy, and may not

assert grounds for withdrawing the plea that contradict statements made

when he pled.”) (citation omitted).

       Lastly, Fisher challenges the legality of his sentence. Anders Brief at

15.

       Initially, “any claim, which asserts that a sentence exceeds the lawful

maximum, implicates the legality of the sentence.” Commonwealth v.

Foster, 17 A.3d 332, 336 (Pa. 2011).        A challenge to the legality of a

sentence can be raised as a matter of right and is non-waivable.

Commonwealth v. Munday, 78 A.3d 661, 664 (Pa. Super. 2013).

Whether a sentence is illegal presents a question of law, and our standard of

review is plenary. Commonwealth v. Orie, 88 A.3d 983, 1020 (Pa. Super.

2014).

       Here, Fisher pled guilty to a felony 3 crime: organized retail theft. A

felony of the third degree carries a maximum sentence of seven years in

prison and a fine of $15,000. See 18 Pa.C.S.A. § 1103(3). The trial court

sentenced Fisher to serve a term of 90 to 180 days in prison, which falls well




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within the permissible range. Thus, the trial court did not impose an illegal

sentence, and Fisher’s claim is without merit.

      Further, our independent examination of the record indicates that

there are no other claims of arguable merit. See Anders, 386 U.S. at 744-

45. Accordingly, we conclude that Fisher’s appeal is wholly frivolous, and

Attorney Thompson is entitled to withdraw as counsel.

      Petition to Withdraw as Counsel granted;       judgment of sentence

affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/16/2016




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