J-S47015-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KEITH A. HERBERT                           :
                                               :
                       Appellant               :   No. 591 MDA 2019

         Appeal from the Judgment of Sentence Entered March 4, 2019
     In the Court of Common Pleas of Schuylkill County Criminal Division at
                       No(s): CP-54-CR-0000411-2018


BEFORE: DUBOW, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.:                              FILED OCTOBER 23, 2019

        Appellant, Keith A. Herbert, appeals from the Judgment of Sentence

entered March 4, 2019, following his guilty plea to Burglary, Criminal Mischief,

Fleeing or Attempting to Elude Officer, Flight to Avoid Apprehension, Resisting

Arrest, Recklessly Endangering Another Person (“REAP”), and Driving Under

the Influence (“DUI”).1 With this appeal, Appellant’s counsel has filed a

Petition to Withdraw as Counsel and an Anders2 brief. After careful review,

we affirm the Judgment of Sentence and grant counsel’s Petition to Withdraw.

        We glean the following factual and procedural history from the certified

record. In the early morning hours of February 26, 2018, Appellant broke into

____________________________________________


1 18 Pa.C.S. § 3502(a)(4); 18 Pa.C.S. § 3304(a)(5); 75 Pa.C.S. § 3733(a);
18 Pa.C.S. § 5126(a); 18 Pa.C.S. § 5104; 18 Pa.C.S. § 2705; and 75 Pa.C.S.
§ 3802(d)(2), respectively.

2   Anders v. California, 386 U.S. 738 (1967).
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the Unity Cafe in Shenandoah and subsequently fled the scene in a vehicle.

Officer Stamets and Bowman were nearby in a patrol car when they received

a radio report of the burglary. After observing Appellant’s vehicle traveling

westbound on East Centre Street, Officer Stamets activated the patrol car’s

emergency lights and attempted to block Appellant’s vehicle from fleeing the

area. However, Appellant’s car collided with the police vehicle and Appellant

ran from his vehicle. After a brief foot chase, Officer Stamets apprehended

Appellant.

     The Commonwealth charged Appellant with four counts of Aggravated

Assault, and one count each of Burglary, Criminal Mischief, Theft by Unlawful

Taking, Fleeing or Attempting to Elude Officer, Flight to Avoid Apprehension,

Possessing Instruments of Crime, Resisting Arrest, REAP, DUI, and Drivers

Required to be Licensed.

     On January 4, 2019, at his plea hearing, Appellant entered a guilty plea

to one count each of Burglary, Criminal Mischief, Fleeing or Attempting to

Elude Officer, Flight to Avoid Apprehension, Resisting Arrest, REAP, and DUI.

In exchange, the Commonwealth nolle prossed the other charges, including

the four counts of Aggravated Assault. The trial court accepted Appellant’s

plea and ordered a pre-sentence investigation report.

     At Appellant’s March 4, 2019 sentencing hearing, his counsel informed

the court that Appellant told him that he had written a letter to the court

requesting to withdraw his guilty plea. Appellant explained that he wanted to

withdraw his plea because, in describing the Fleeing or Attempting to Elude

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Officer charge at the plea hearing, the court stated that “he ran into th[e]

police car[,]” even though he had not assaulted the officers. N.T. Sentencing,

3/4/19, at 4. Thus, he did “[not] want[] to be sentenced [for] something he

did not do.” Id.

       The court explained that its comments about Appellant running into the

police car pertained to its questioning the Commonwealth about withdrawing

the Aggravated Assault charges. The court reminded Appellant that the

Commonwealth had dropped the Aggravated Assault charges and explained

that Appellant’s conviction of Fleeing or Attempting to Elude Officer was based

not on the car crash, but on the fact that he tried to run away from the police

officers.3 Nevertheless, Appellant was convinced that the trial court would still

base its sentence on the nolle prossed Aggravated Assault charges, and

therefore he wished to withdraw his plea. The court denied Appellant’s request

to withdraw his guilty plea.

       The court sentenced Appellant to, inter alia, an aggregate term of eleven

to twenty-two years of incarceration. Appellant did not file a post-sentence

motion.



____________________________________________


3 We note that the criminal information contained the following description
pertaining to REAP, a charge to which Appellant pled guilty: “recklessly
engag[ing] in conduct which placed . . . [the officers] in danger of death or
serious bodily injury by ramming their police cruiser head-on with his vehicle
and fleeing on foot, . . . all of which constitutes [REAP].” Information, dated
4/10/18, at 2.


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      Appellant timely filed a Notice of Appeal. Thereafter, counsel filed a

Statement of Intent to File Anders Brief in Lieu of Statement of Errors

Complained of on Appeal. See Pa.R.A.P. 1925(c)(4). Accordingly, the trial

court did not file a Rule 1925(a) Opinion. Appellant’s counsel filed an Anders

Brief and an Application to Withdraw as Counsel with this Court. Appellant has

not filed a response.

      Counsel raises one issue in the Anders Brief challenging the trial court’s

denial of Appellant’s request to withdraw his guilty plea. However, “this Court

may not review the merits of the underlying issues without first passing on

the request to withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593

(Pa. Super. 2010).

      In order for counsel to withdraw from an appeal, our Supreme Court has

determined that counsel must file a brief pursuant to Anders that: (1)

provides a summary of the procedural history and facts, with citations to the

record; (2) refers to anything in the record that counsel believes arguably

supports the appeal; (3) sets forth counsel’s conclusion that the appeal is

frivolous; and (4) states counsel’s reasons for concluding that the appeal is

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

“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.” Id.

      Counsel’s brief meets the Anders requirements. Additionally, counsel

confirms that he sent Appellant a copy of the Anders Brief and Petition to

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Withdraw, as well as a letter explaining to Appellant that he has the right to

retain new counsel, proceed pro se, or to raise any additional points. See

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

(describing notice requirements).

      Because counsel has satisfied the above requirements, we now have the

responsibility to “make a full examination of the proceedings and make an

independent    judgment as    to    whether   the   appeal   is in   fact   wholly

frivolous.”   Santiago, 978 A.2d at 355 n.5 (citation omitted). See also

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

banc) (noting that we must “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.”) (citation omitted).

      We first address the substantive issue raised by counsel, i.e., that the

trial court erred in precluding Appellant from withdrawing his guilty plea.

Anders Br. at 4-6. This Court reviews the denial of a request to withdraw a

guilty plea for an abuse of discretion. Commonwealth v. Davis, 191 A.3d

883, 889 (Pa. Super. 2018). An abuse of discretion is more than an error in

judgment; it will not be found unless the trial court’s judgment was manifestly

unreasonable, or was the result of partiality, bias, or ill-will. Commonwealth

v. McNabb, 819 A.2d 54, 55 (Pa. Super. 2003).

      There is no absolute right to withdraw a guilty plea. Commonwealth

v. Carrasquillo, 115 A.3d 1284, 1291 (Pa. 2015). The trial court has the


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discretion to determine whether a pre-sentence withdrawal request will be

granted. Id. at 1291-92. See Pa.R.Crim.P. 591(A) (“At any time before the

imposition of sentence, the court may, in its discretion, permit, upon motion

of the defendant, or direct, sua sponte, the withdrawal of a plea of guilty or

nolo contendere and the substitution of a plea of not guilty.”). Such discretion

is to be administered liberally, and withdrawal should be granted where: (1)

the accused has made some “colorable demonstration” that permitting

withdrawal of the plea would promote fairness and justice; and (2) the

Commonwealth will not be substantially prejudiced in bringing the case to

trial. Carrasquillo, supra at 1292; Commonwealth v. Muhammad, 794

A.2d 378, 382-83 (Pa. Super. 2002). The determination of whether the plea

withdrawal would permit fairness and justice is based on the totality of the

circumstances present at the time the withdrawal request is made.

Commonwealth v. Tennison, 969 A.2d 572, 573 (Pa. Super. 2009).

      Here, Appellant sought to withdraw his plea because he believed that

the trial court would base its sentence for his Fleeing or Attempting to Elude

Officer conviction on facts underlying the nolle prossed Aggravated Assault

charges, specifically, “that [Appellant] ran into a police car.” N.T. Sentencing,

3/4/19, at 4.

      Based on our review of the record, we conclude that the trial court did

not abuse its discretion in denying Appellant’s Request to Withdraw his Guilty

Plea. The court addressed Appellant’s sentencing concerns. It discussed the


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facts   underlying   the   nolle   prossed    Aggravated   Assault   charges   and

distinguished those facts from the facts underlying the Fleeing or Attempting

to Elude Officer charge. The court demonstrated that it understood which

charges were nolle prossed, and stated that it would not base its sentencing

decisions on the facts underlying those charges.

        Therefore, Appellant did not make a “colorable demonstration” that

permitting withdrawal of the plea would promote fairness and justice.

Accordingly, we conclude that the trial court’s denial of Appellant’s Motion to

Withdraw his guilty plea was not manifestly unreasonable or the result of

partiality, bias, or ill-will. McNabb, 819 A.2d at 55. We, thus, agree with

counsel that this issue has no merit.

        Additionally, our independent review of the record does not reveal any

non-frivolous arguments available to Appellant. Yorgey, supra. Thus, we

agree with counsel that this appeal is wholly frivolous. Accordingly, we grant

counsel’s Petition to Withdraw as Counsel and affirm Appellant’s Judgment of

Sentence.

        Judgment of Sentence affirmed. Counsel’s Petition to Withdraw as

Counsel granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/23/2019

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