Com. v. Cruz, M.

• Court: Superior Court of Pennsylvania
• Decided: June 27, 2025
• Docket: 56 EDA 2024
• Status: Unpublished

Opinion

J-S12001-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MOISESH ISHMAEL CRUZ : : Appellant : No. 56 EDA 2024

Appeal from the Judgment of Sentence Entered November 1, 2023 In the Court of Common Pleas of Lehigh County Criminal Division at No: CP-39-CR-0000179-2023

BEFORE: STABILE, J., McLAUGHLIN, J., and BENDER, P.J.E.

MEMORANDUM BY STABILE, J.: FILED JUNE 27, 2025

Appellant, Moisesh Ishmael Cruz, appeals from his judgment of sentence

of 11-36 months’ imprisonment for possession of a controlled substance

(marijuana) with intent to deliver (“PWID”). He claims in this appeal that his

guilty plea was not knowing, intelligent, or voluntary and his sentence was

illegal. Appellant’s counsel seeks permission to withdraw and has filed an

Anders1 brief in which she concludes that all issues lack merit. We grant

counsel’s application for leave to withdraw, and we affirm.

The Commonwealth summarized the evidence against Appellant as

stated during his guilty plea hearing:

[O]n . . . January 6 of 2023, members of the Lehigh County Probation Department went to the [Appellant]’s probation registered address at 137 South 6 th Street, Apartment A32. At that point in time, immediately upon being admitted to the ____________________________________________

1 Anders v. California, 386 U.S. 738 (1967). J-S12001-25

location, they did smell fresh marijuana, that they knew the [Appellant] did not have a card to possess marijuana for medical purposes nor did the other adult resident which is his girlfriend. Based on that, they contacted a supervisor, and they were given permission with reasonable suspicion under the statute to search the residence. During the search of the residence, they did find additional bottles of marijuana as well as packaging materials for marijuana in a closet in the living room. There was also packaging material of the same type in a closet in a bedroom identified as the [Appellant]’s by the male clothing as well as his probation parole documents.

N.T. 9/18/23, at 13.

On September 18, 2023, Appellant appeared before the court and pled

guilty to PWID. In exchange for Appellant’s plea, the Commonwealth agreed

not to proceed on other drug charges and a firearms charge and further agreed

that Appellant’s minimum sentence would be in the standard range of the

Sentencing Guidelines. On November 1, 2023, following a presentence

investigation and sentencing hearing, the court sentenced Appellant to the

sentence reference above. Appellant filed a timely post-sentence motion,

which was denied, and a timely appeal.

Following his appeal, Appellant filed a pro se concise statement of

matters complained of on appeal. The attorney who represented Appellant

during sentencing moved to withdraw. The court permitted counsel to

withdraw and appointed new counsel to represent Appellant in this appeal.

New counsel filed a motion in this Court requesting a remand so that he could

file a new concise statement of matters complained of on appeal. On May 3,

2024, this Court remanded this case to the trial court with leave for new

counsel to file a concise statement. On May 30, 2024, new counsel filed a

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concise statement. The trial court thereupon filed a Pa.R.A.P. 1925 opinion

addressing the issues in that concise statement.

On December 10, 2024, new counsel filed an Anders brief along with

an application to withdraw as counsel. The Anders brief raised a single issue,

“Whether the appeal is wholly frivolous?” Anders Brief at 4. The brief goes

on to argue that the two issues Appellant wanted to raise on appeal, a

challenge to Appellant’s guilty plea and a challenge to his sentence, are

frivolous.

Before proceeding further, we must address whether new counsel has

complied with Anders and Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009). See Commonwealth v. Washington, 63 A.3d 797, 800 (Pa. Super.

2013); Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005)

(“When faced with a purported Anders brief, this Court may not review the

merits of the underlying issues without first passing on the request to

withdraw”).

In Commonwealth v. Orellana, 86 A.3d 877 (Pa. Super. 2014), this

Court directed:

Prior to withdrawing as counsel on a direct appeal under Anders, counsel must file a brief that meets the requirements established by our Supreme Court in Santiago. The 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 counsel’s conclusion that the appeal is frivolous; and

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(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.

Santiago, 978 A.2d at 361. 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 his 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.

Id. at 879-80. New counsel’s brief complies with these requirements by (1)

providing a summary of the procedural history and facts with citations to the

record; (2) referring to matters of record relevant to this appeal; and (3)

explaining why the appeal is frivolous. In addition, new counsel sent his brief

to Appellant with a letter advising him of the rights listed in Orellana.

Accordingly, all Anders requirements are satisfied.

We now examine the issues new counsel identified in the Anders brief

and conduct “a full examination of all the proceedings, to decide whether the

case is wholly frivolous.” Commonwealth v. Yorgey, 188 A.3d 1190, 1196

(Pa. Super. 2018) (en banc). “If the appeal is frivolous, we will grant the

withdrawal petition and affirm the judgment of sentence.” Commonwealth

v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007). If there are non-frivolous

issues, we will deny new counsel’s petition to withdraw and direct him to file

an advocate’s brief. Id.

We agree with new counsel that Appellant’s challenge to his guilty plea

is frivolous. When a defendant enters a guilty plea, it is presumed that he

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was aware of what he was doing, and he carries the burden of proving the

plea was involuntary. Commonwealth v. Lewis, 708 A.2d 497, 502 (Pa.

Super. 1998). After sentencing, the court can permit the defendant to

withdraw a guilty plea only when he makes a showing of prejudice that

amounts to manifest injustice. Id. at 502-03. To prove manifest injustice,

the defendant must show that his plea was involuntary or unknowing.

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

ascertain whether the defendant entered into a guilty plea knowingly,

intentionally, and voluntarily, a reviewing court must examine the guilty plea

colloquy, focusing specifically on the trial court’s inquiry into six areas: (1) the

nature of the charges; (2) the factual basis of the plea; (3) the right to a trial

by jury; (4) the presumption of innocence; (5) the permissible range of

sentences; and (6) the judge’s authority to depart from any recommended

sentence. Commonwealth v. Muhammad, 794 A.2d 378, 383 (Pa. Super.

2002); Comment, Pa.R.Crim.P. 590. The adequacy of a guilty plea colloquy

and the voluntariness of the resulting plea must be examined under the

totality of the circumstances surrounding the entry of the plea. Muhammad,

794 A.2d at 383-84.

Here, at the beginning of the plea hearing, defense counsel set forth the

plea agreement. In exchange for Appellant’s plea of guilty to PWID, the

Commonwealth agreed not to proceed on the remaining charges and that

defendant’s minimum sentence would be in the standard range of the

Guidelines. N.T. 9/18/23, at 2-3. Appellant affirmed that this was his

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understanding. Id. at 4. The lower court informed Appellant as to the

maximum sentence he could receive for this crime, and Appellant confirmed

that he understood. Id. During the lower court’s oral colloquy, Appellant

averred that he reviewed the written colloquy with the assistance of counsel

and understood all of the rights he was giving up by pleading guilty. Id. at 4-

6. He further affirmed that no one was forcing him to plead guilty and that

he had not received any promises from anyone in return for his plea. Id. at

21. The prosecutor set forth the facts supporting Appellant’s plea, which

Appellant affirmed were correct. Id. at 13-20. Appellant also signed a

detailed written guilty plea colloquy which thoroughly explained all the rights

he was relinquishing by entering his plea. Certified Record, Item 11.

Based on the totality of the circumstances, including the court’s

comprehensive oral colloquy which was supplemented by Appellant’s written

colloquy, Appellant’s guilty pleas were knowing, intelligent and voluntary.

Commonwealth v. Sauter, 567 A.2d 707, 708-09 (Pa. Super. 1989) (where

written plea colloquy supplemented oral colloquy, it strongly suggests that

appellant’s plea was knowing and intelligent).

We also agree with new counsel that Appellant’s challenge to his

sentence is frivolous. To begin, the court imposed a legal sentence. Appellant

pled guilty to PWID under 35 P.S. § 780-113(a)(30). The maximum sentence

authorized by law for this offense is five years’ imprisonment. 35 P.S. § 780-

113(f)(2). Appellant received a sentence of eleven months to three years’

imprisonment, within the boundaries prescribed under Section 780-113(f)(2).

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Nor did Appellant’s sentence constitute an abuse of discretion. The

standard employed when reviewing the discretionary aspects of sentencing is

very narrow. Commonwealth v. Glawinski, 310 A.3d 321, 325 (Pa. Super.

2024). A sentencing court will not be deemed to have abused its discretion

“unless the record discloses that the judgment exercised was manifestly

unreasonable, or the result of partiality, prejudice, bias, or ill-will.” Id. at

326. “When imposing a sentence, the sentencing court must consider the

factors set forth in 42 Pa.C.S.[A.] § 9721(b), including the protection of the

public, the gravity of the offense, and the rehabilitative needs of the

defendant.” Commonwealth v. Lawrence, 313 A.3d 265, 286 (Pa. Super.

2024). Moreover, where the sentencing judge had the benefit of a

presentence investigation report, it will be presumed that he or she was aware

of the relevant information regarding the defendant’s character and weighed

those considerations along with mitigating statutory factors. Id.

Here, Appellant’s prior record score was a three and the offense gravity

score was three. 204 Pa. Code § 303.15. Accordingly, the standard range of

the Guidelines recommended a minimum sentence of less than twelve months’

imprisonment. 204 Pa. Code § 303.16. Appellant’s minimum sentence of

eleven months is within the recommended standard range. “[W]here a

sentence is within the standard range of the guidelines, Pennsylvania law

views the sentence as appropriate under the Sentencing Code.”

Commonwealth v. Griffin, 65 A.3d 932, 937 (Pa. Super. 2013). As such, a

sentencing court shall be deemed to have abused its discretion “only if

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application of the guidelines is clearly unreasonable.” Commonwealth v.

Macias, 968 A.2d 773, 777 (Pa. Super. 2009). “A sentence is clearly

unreasonable if it violates the requirements and goals of the Code and of the

application of the guidelines.” Commonwealth v. Fiascki, 886 A.2d 261,

264 (Pa. Super. 2005).

The trial court confirmed in its opinion it considered all required

statutory factors as well as the presentence investigation report when

fashioning Appellant’s sentence. Opinion, 6/27/24, at 4. The lower court

acted within its discretion when imposing sentence, and no appellate relief is

due.

We also note, in accordance with Yorgey, supra, that our independent

review of the record does not reveal any other non-frivolous issues that

Appellant could raise in this appeal.

For these reasons, we affirm Appellant’s judgment of sentence.

Judgment of sentence affirmed. Application to withdraw granted.

Date: 6/27/2025

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