J-S32026-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

LISA SWING

                            Appellant                No. 2818 EDA 2015


              Appeal from the Judgment of Sentence July 7, 2015
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0002204-2015


BEFORE: BOWES, J., MUNDY, J., and PLATT, J.*

MEMORANDUM BY MUNDY, J.:                               FILED JULY 06, 2016

        Appellant, Lisa Swing, appeals from the July 7, 2015 aggregate

judgment of sentence of 5 to 10 years’ imprisonment, followed by 12 years’

probation, imposed following her entry of a negotiated guilty plea to robbery

with serious bodily injury inflicted, burglary, and criminal conspiracy.1

Contemporaneously with this appeal, Appellant’s counsel has filed a petition

to withdraw and an Anders2 brief, stating that the appeal is wholly frivolous.

After careful review, we affirm and grant counsel’s petition to withdraw.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 3701(a)(1)(ii), 3502(a)(1), and 903.
2
    Anders v. California, 386 U.S. 738 (1967).
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       The trial court has set forth the relevant factual history as follows.

                    On February 19, 2015[, Appellant] entered her
              friend’s apartment bearing two cups of coffee. Her
              friend, the Victim, turned to walk back in the
              apartment and was accosted by two men,
              [Appellant]’s co-conspirators. One man had a gun.
              The Victim was shocked with a stun gun and
              immobilized. Duct tape was applied to her eyes,
              hands and legs. Her pocketbook and jewelry were
              taken. A neighbor heard the commotion and called
              the police. [Appellant] and her co-conspirators were
              apprehended in a stolen truck and [Appellant] had
              the Victim’s stolen jewelry in her jacket pocket.

Trial Court Opinion, 10/23/15, at 1.

       On July 7, 2015, Appellant initialed each paragraph of, signed, and

dated a negotiated guilty plea agreement.          Following an on the record

colloquy, Appellant pled guilty to the aforementioned crimes. N.T., 7/7/15,

at 7. Appellant was sentenced the same day to an aggregate term of 5 to

10 years’ imprisonment, followed by 12 years’ probation, which was the

recommended sentence in the plea agreement. On July 10, 2015, Appellant

filed a timely post sentence motion to withdraw her guilty plea stating she

“had done nothing wrong and wished to have a trial.” Motion to Withdraw

Guilty Plea, 7/10/15, at ¶ 5. On August 19, 2015, a hearing was held on

Appellant’s motion. On August 20, 2015, the trial court denied Appellant’s

motion. On September 17, 2015, Appellant filed a timely notice of appeal.3

____________________________________________


3
  On September 22, 2015, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pennsylvania Rule
(Footnote Continued Next Page)


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On October 23, 2015, the trial court filed its Rule 1925(a) opinion.        On

January 7, 2016, counsel filed, with this Court, a motion to withdraw.

Appellant has not filed a response to counsel’s Anders brief or motion to

withdraw.

      In his Anders Brief, counsel has raised the following issue for our

review.

             Whether the [trial c]ourt should have further
             explored the statements made by [Appellant] during
             the hearing on her motion to withdraw the guilty
             plea which suggested that she was innocent of the
             charges, was coerced into pleading guilty, was
             confused at the time, and that her medication kept
             her from entering a knowing, voluntary and
             intelligent plea?

Anders Brief at 2.

      “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. Daniels, 999 A.2d 590, 593 (Pa. Super.

2010) (citation omitted). Additionally, an Anders brief shall comply with the

requirements set forth by our Supreme Court in Commonwealth v.

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

                  [W]e hold that in the Anders brief that
             accompanies court-appointed counsel’s petition to
                       _______________________
(Footnote Continued)

of Appellate Procedure 1925(b). On October 9, 2015, counsel filed a
statement of his intent to file an Anders brief in lieu of a concise statement,
pursuant to Rule 1925(c)(4).




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              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 statutes on point that
              have led to the conclusion that the appeal is
              frivolous.

Id. at 361.

      Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.

2005), and its progeny, counsel seeking to withdraw on direct appeal must

also meet the following obligations to his or her client.

              Counsel also must provide a copy of the Anders
              brief to his client. Attending the brief must be a
              letter that advises the client of [her] right to: (1)
              retain new counsel to pursue the appeal; (2)
              proceed pro se on appeal; or (3) raise any points
              that the appellant deems worthy of the court[’]s
              attention in addition to the points raised by counsel
              in the Anders brief.

Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (internal

quotation marks and citation omitted).        “Once counsel has satisfied the

above requirements, it is then this Court’s duty to conduct its own review of

the trial court’s proceedings and render an independent judgment as to

whether the appeal is, in fact, wholly frivolous.”          Commonwealth v.

Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc), quoting

Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004). Further,

“this Court must conduct an independent review of the record to discern if

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there are any additional, non-frivolous issues overlooked by counsel.”

Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015)

(footnote and citation omitted).

      In this appeal, we conclude that counsel’s Anders brief complies with

the requirements of Santiago. First, counsel has provided a procedural and

factual summary of the case with references to the record. Anders Brief at

3-4. Second, counsel advances relevant portions of the record that arguably

support Appellant’s claims on appeal.       Id. at 5-7.   Third, counsel noted,

“[a]fter reviewing the record in this case, counsel has concluded that this

appeal is frivolous.”   Id. at 8.     Lastly, counsel has complied with the

requirements set forth in Millisock. See Letter from Counsel to Appellant,

dated 1/8/16. As a result, we proceed to conduct an independent review to

ascertain if the appeal is indeed wholly frivolous.

      “Settled Pennsylvania law makes clear that by entering a guilty plea,

the defendant waives [her] right to challenge on direct appeal all

nonjurisdictional defects except the legality of the sentence and the validity

of the plea.”   Commonwealth v. Lincoln, 72 A.3d 606, 609 (Pa. Super.

2013) (citation omitted), appeal denied, 87 A.3d 319 (Pa. 2014). “Our law

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

was doing. [Sh]e bears the burden of proving otherwise.” Commonwealth

v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011) (citation omitted). “[A]

defendant has no absolute right to withdraw a guilty plea; rather, the


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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). The standard for deciding whether to grant a motion to withdraw a

guilty plea varies based on when such a motion is filed. Our Supreme Court

has concluded that a request to withdraw a guilty plea made before

sentencing should be “liberally allowed,” and outlined the following two-part

test for a pre-sentence motion “(1) the defendant has provided a ‘fair and

just reason’ for withdrawal of his plea; and (2) the Commonwealth will not

be ‘substantially prejudiced in bringing the case to trial.’”    Id. at 383,

quoting Commonwealth v. Forbes, 299 A.2d 268, 271 (Pa. 1973). On the

other hand, the standard for a post-sentence motion to withdraw a guilty

plea is much higher.     To obtain such relief, a defendant must make a

“showing of prejudice on the order of manifest injustice.” Commonwealth

v. Warren, 84 A.3d 1092, 1096 (Pa. Super 2014). “A plea rises to the level

of manifest injustice when it was entered into involuntarily, unknowingly, or

unintelligently.” Lincoln, supra at 610.

      Instantly, a review of the record reveals Appellant filed a timely post

sentence motion to withdraw her July 7, 2015 guilty plea on July 10, 2015.

At the hearing on her motion, the trial court asked Appellant the basis for

her request to withdraw her guilty plea. Appellant responded as follows.

            For – I feel like I’m not the guilty one here, he was,
            and I was – I was just scared. I didn’t know what to
            do. I’m not going to take a plea that I’m not – I’m –
            I’m – I’ve done everything I’m supposed to do while

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            in jail. I was on the – on the – on drugs at the time
            and like I just followed. I didn’t do nothing wrong. I
            wasn’t the one who did any harm to anybody. And I
            got letters from him like threatening me, say this,
            say that, and I didn’t know what to do. And I didn’t
            know what to do the day and I was scared. And this
            is the truth.

N.T., 8/19/15, at 4.    Appellant also made bald assertions that she was

confused the day of the plea hearing, but went on to admit the plea

agreement was explained to her and she was informed of the charges she

was pleading guilty to. Id. at 4-6. Appellant further indicated at the time of

the plea hearing she was taking prescribed medication for her mental health.

Id. at 7.

      Notably, Appellant does not specifically assert that her plea was not

entered knowingly, voluntarily, and intelligently.   Rather, she testified she

was in shock, and “really didn’t want to” plead guilty, but admitted she

understood at the time of the guilty plea hearing what she was doing. Id. at

7-8. Further, a review of the plea hearing reveals the following occurred.

            [The trial court]: Do you read, write and understand
            the English language?

            [Appellant]: Yes, I do.

            [The trial court]: Were you given sufficient time and
            opportunity to review a four page Guilty Plea
            Statement?

            [Appellant]: She explained it to me, yes.

            [The trial court]:   Okay.   Did you read the whole
            thing?


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          [Appellant]: No, I didn’t read it, but she explained it
          to me.

          [The trial court]: Okay. Is there some reason you
          didn’t read the whole thing?

          [Appellant]: No, I was just – she explained it to me
          step by step.

          [The trial court]:     Are you satisfied that she
          explained everything in there to you?

          [Appellant]: Yes, I did [sic].

          [The trial court]:     Okay.   Did you understand
          everything that was communicated to you about this
          four page Guilty Plea Statement?

          [Appellant]: Yes, I do.

          [The trial court]: Okay. You realize then that you
          don’t have to plead guilty. Is that correct?

          [Appellant]: Yes.

          [The trial court]: Okay. If you went to trial the
          Commonwealth would have to prove you guilty of
          these offenses beyond a reasonable doubt. That is
          the heaviest burden of proof under the law. Knowing
          that you still wish to give up your right to trial and
          plead guilty in these matters?

          [Appellant]: Yeah.

          [The trial court]:     Is anybody forcing you or
          pressuring you into accepting this plea?

          [Appellant]: No.

          [The trial court]: Are you currently under the effects
          of drugs, alcohol or any other substance that would
          prevent you from understanding the terms of the
          plea?


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            [Appellant]: No.

                                     …

            [The trial court]: The Court finds the plea to be
            knowing, voluntary, intelligent. ….

N.T., 7/7/15, at 5-7.

      Accordingly, the record establishes that Appellant entered into the

guilty plea knowingly, voluntarily, and intelligently. Appellant negotiated a

plea with the Commonwealth, initialed every paragraph of the four page

Guilty Plea Statement, an oral plea colloquy was held on the record and

accepted by the trial court, and finally the trial court imposed the exact

sentence the Commonwealth recommended. Therefore, Appellant has failed

to demonstrate that the plea rose “to the level of manifest injustice when it

was entered into involuntarily, unknowingly, or unintelligently.”   Lincoln,

supra.

      Based on the foregoing, we conclude the trial court properly denied

Appellant’s motion to withdraw her guilty plea.       In addition, we have

reviewed the certified record consistent with Flowers and have discovered

no additional arguably meritorious issues. Accordingly, we grant counsel’s

petition to withdraw and affirm the trial court’s July 7, 2015 judgment of

sentence.

      Judgment of sentence affirmed.      Petition to withdraw as counsel

granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/2016




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