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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                           :
                                              :
                                              :
 ANEURI ANTONIO PENA                          :
                                              :
                         Appellant            :   No. 996 MDA 2018

            Appeal from the Judgment of Sentence April 11, 2018
     In the Court of Common Pleas of Berks County Criminal Division at
                      No(s): CP-06-CR-0004964-2017


BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

MEMORANDUM BY BOWES, J.:                      FILED: APRIL 30, 2019

      Aneuri Antonio Pena appeals from the judgment of sentence of six

months of probation after he pled guilty to harassment and disorderly conduct.

Appellant’s counsel has filed a petition to withdraw and a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009). We grant counsel’s petition to withdraw

and affirm the judgment of sentence.

      The Commonwealth charged Appellant with one count each of

aggravated assault, simple assault, harassment, and disorderly conduct,

arising from an incident in Berks County, Pennsylvania. On October 7, 2017,

police took Appellant to the Reading hospital for medical clearance before

incarceration.        Once at the hospital, Appellant resisted medical treatment,

causing security guards and medical staff to attempt to position Appellant into
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four-point restraints. During the scuffle, Appellant bit the finger of a nurse’s

assistant and spit in the face of a security guard.

        On April 11, 2018, Appellant appeared before the trial court to enter an

open guilty plea, under which the Commonwealth would withdraw the

aggravated and simple assault charges in exchange for Appellant’s guilty plea

to the remaining offenses. N.T. Guilty Plea/Sentencing, 4/11/18, at 2. The

court engaged in a colloquy of Appellant, wherein he demonstrated a

knowledge of the charges pending, the elements of the offenses, and the

maximum penalties for each offense.              Id. at 3-9.    Appellant verified his

understanding that, in exchange for his guilty plea, he would give up his right

to a jury trial on the simple assault and aggravated assault and a bench trial

on the summary charges. Id. at 5-6. The trial court accepted the plea and

Appellant immediately proceeded to sentencing.                 Appellant received an

aggregate sentence of six months of probation. Id. at 9.1

        On April 17, 2018, Appellant filed a post-sentence motion asking to

withdraw his guilty plea. In the motion, Appellant averred that withdrawal

was necessary “to correct a manifest injustice,” because he was innocent, and

because “he was overwhelmed with the plea process.” Post-Sentence Motion,

4/17/18, 1-2. The trial court denied Appellant’s motion and Appellant filed a

timely notice of appeal.        The trial court made no request for a concise




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1   Appellant was also ordered to pay costs of supervision and a fifty-dollar fine.

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statement of errors complained of on appeal, but issued its 1925(a) statement

on July 20, 2018.

      In this Court, counsel filed both an Anders brief and a petition to

withdraw as counsel. Accordingly, the following principles guide our review of

this matter:

             Direct appeal counsel seeking to withdraw under Anders
      must file a petition averring that, after a conscientious
      examination of the record, counsel finds the appeal to be wholly
      frivolous. Counsel must also file an Anders brief setting forth
      issues that might arguably support the appeal along with any
      other issues necessary for the effective appellate presentation
      thereof . . . .

             Anders counsel must also provide a copy of the Anders
      petition and brief to the appellant, advising the appellant of the
      right to retain new counsel, proceed pro se or raise any additional
      points worthy of this Court’s attention.

             If counsel does not fulfill the aforesaid technical
      requirements of Anders, this Court will deny the petition to
      withdraw and remand the case with appropriate instructions (e.g.,
      directing counsel either to comply with Anders or file an
      advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
      petition and brief satisfy Anders, we will then undertake our own
      review of the appeal to determine if it is wholly frivolous. If the
      appeal is frivolous, we will grant the withdrawal petition and affirm
      the judgment of sentence. However, if there are non-frivolous
      issues, we will deny the petition and remand for the filing of an
      advocate’s brief.

Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa.Super. 2007)

(citations omitted). Our Supreme Court has clarified portions of the Anders

procedure:




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        [I]n the Anders brief that accompanies court-appointed counsel’s
        petition to withdraw, counsel 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 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
        record, controlling case law, and/or statues on point that have led
        to the conclusion that the appeal is frivolous.

Santiago, supra at 361.

        Based upon our examination of counsel’s petition to withdraw and

Anders brief, we conclude that counsel has substantially complied with the

technical requirements set forth above. Counsel set forth the case history,

referred to an issue that arguably supports the appeal, stated her conclusion

that the appeal is frivolous, and cited to controlling case law which supports

that conclusion.      See Anders brief at 9-24.       Additionally, counsel gave

Appellant proper notice of his right to immediately proceed pro se or retain

another attorney.2         See Santiago, supra; Letter, 9/17/18, at 1-2.

Accordingly, we proceed to an examination of the issue raised to discern if it

is frivolous. Commonwealth v. Dempster, 187 A.3d 266, 273 (Pa.Super.

2018) (en banc).

        Counsel identified one issue that arguably supports this appeal:

“[w]hether the trial court erred when it denied Appellant’s petition to withdraw




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2   Appellant did not file a response to counsel’s petition.

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his guilty plea, even though said guilty plea was not made knowingly,

intelligently, or voluntarily.” Anders brief at 8.

      In Commonwealth v. Broaden, 980 A.2d 124 (Pa.Super. 2009), we

summarized the principles governing post-sentence motions to withdraw

guilty pleas:

      post-sentence motions for withdrawal are subject to higher
      scrutiny 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 guilty 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.

Id. at 129 (citations omitted).

      A court accepting a defendant’s plea is required to conduct an on-the-

record inquiry, which explores the following areas:

      (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?[;] (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?[; and] (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?

Commonwealth v. Pollard, 832 A.2d 517, 522-23 (Pa.Super. 2003)

(citations omitted); see also Pa.R.Crim.P. 590.         Moreover, “[o]ur law




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presumes that a defendant who enters a guilty plea was aware of what he was

doing. He bears the burden of proving otherwise.” Pollard, supra at 523.

      Upon review, we discern that the plea colloquy complied with

Pa.R.Crim.P. 590.     The court inquired at length concerning Appellant’s

understanding of the nature of the charges he faced and the terms of the plea

agreement. N.T. Guilty Plea/Sentencing, 4/11/18, at 2-9. More specifically,

it listed the offenses charged, the elements which the Commonwealth would

have to prove if Appellant chose to proceed to trial, and the maximum

penalties he faced if convicted. Id. at 4-6. It also reminded Appellant that

he had the right to have a jury trial on the aggravated and simple assault

charges, and to proceed to a bench trial on the summary offenses. Id. at 5.

Finally, it advised Appellant that he was presumed innocent and incorporated

his written guilty plea colloquy into the record. Id. at 3, 5.

      During the colloquy, Appellant initially expressed hesitation about the

guilty plea going forward, because he felt that he was being “coerced a little,”

did not “feel like [he was] really understanding the case,” and wanted “better

knowledge of the legal strategy.” Id. at 4. Appellant’s attorney immediately

responded that she was ready to proceed to trial. Id. However, once the trial

court explored Appellant’s concerns by engaging in a detailed discussion of

the entire process with Appellant, and his counsel stated the facts of the case

in conjunction with the various elements that the Commonwealth would have




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to prove at trial, Appellant’s concerns were alleviated and he expressed his

desire to plead guilty. Id. at 7-9.

       Upon our independent review of the record, we discern no manifest

injustice that would support the post-sentence withdrawal of Appellant’s guilty

plea. The guilty plea colloquy irrefutably establishes that the trial court made

the appropriate inquiries and that Appellant entered his plea knowingly,

intelligently, and voluntarily. Appellant willingly availed himself of the benefits

of the plea agreement and is bound by the statements he made during his

written and oral guilty plea colloquies. Commonwealth v. Turetsky, 925

A.2d 876, 881 (Pa.Super. 2007) (“A person who elects to plead guilty is bound

by the statements he makes in open court while under oath and he may not

later assert grounds of withdrawing the plea which contradict the statements

he made at his plea colloquy.”) (citation omitted). Therefore, for all of the

foregoing reasons, Appellant’s claim is devoid of merit.

       Further, we have conducted a “full examination of the proceedings” and

determined that “the appeal is in fact wholly frivolous.”3 Commonwealth v.

Flowers, 113 A.3d 1246, 1248 (Pa.Super. 2015). Since our review did not




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3 We undertook our review mindful of the fact that “upon entry of a guilty
plea, a defendant waives all claims and defenses other than those sounding
in the jurisdiction of the court, the validity of the plea, and what has been
termed the ‘legality’ of the sentence imposed.”            Commonwealth v.
Eisenberg, 98 A.3d 1268, 1275 (Pa. 2014). No viable claims or defenses on
those subjects are apparent from the record before us.

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disclose any other arguably meritorious claims, we grant counsel’s petition to

withdraw and affirm the judgment of sentence. Dempster, supra at 273.

      Petition of Lauren E. Otero, Esquire, to withdraw as counsel is granted.

Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/30/2019




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