J-S15014-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA
v.
ANGEL FELICIANO
Appellant No. 1781 EDA 2016
Appeal from the Judgment of Sentence February 3, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0009715-2012
BEFORE: BOWES, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY BOWES, J.: FILED MAY 22, 2017
Angel Feliciano appeals nunc pro tunc from the judgment of sentence
of twenty-five to fifty years imprisonment that was imposed after he entered
a negotiated guilty plea to third-degree murder, conspiracy, and possession
of an instrument of crime (“PIC”). Stephen O’Hanlon, Esquire, has filed a
petition to withdraw from representation 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 and affirm.
The trial court succinctly summarized the factual basis for the guilty
plea as follows: J-S15014-17
In mid-January, 2010, defendant was involved in a dispute over drug territory with the decedent, Kenneth Rolon. On January 22, 2010, defendant was a passenger in a car being driven by his co-defendant, Willey Ortiz,[1] when defendant saw Rolon standing on a street corner. Ortiz pulled over to the corner and waved Rolon over to the car. When Rolon approached the car, defendant fired a .25 caliber pistol in Rolon's chest, killing him. N.T.[,] 2/3/14[,] at 34-37.
Trial Court Opinion, 6/29/16, at 2-3.
The trial court accepted Appellant’s plea of guilty to third-degree
murder, conspiracy, and PIC, and immediately imposed the negotiated
aggregate sentence of twenty-five to fifty years incarceration. Specifically,
Appellant received twenty to forty years imprisonment for murder and a
consecutive term of five to ten years for conspiracy. No further penalty was
imposed on PIC. The aggregate sentence was imposed concurrently with a
sentence Appellant was then serving.
Appellant filed a post-sentence motion seeking to withdraw his guilty
plea. The trial court denied the petition on April 15, 2014, and we dismissed
the ensuing appeal due to Appellant’s failure to file a brief. However, after
Appellant filed a timely PCRA petition with the assistance of appointed
counsel, Attorney O’ Hanlon, the PCRA court reinstated Appellant’s direct
appeal rights nunc pro tunc. Appellant filed a timely appeal. In his ____________________________________________
1 A jury convicted Ortiz of third-degree murder, and we affirmed the ensuing twenty-to-forty-year term of imprisonment imposed by the trial court. Commonwealth v. Ortiz, 125 A.3d 438 (Pa.Super. 2015) (unpublished memorandum filed).
-2- J-S15014-17
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),
Appellant renewed his assertion that the trial court erred in denying his post-
sentence petition to withdraw the guilty plea.
On October 11, 2016, Attorney O’Hanlon filed with this Court a petition
to withdraw from representation pursuant to Anders, and he filed a
Santiago brief outlining the claims that Appellant sought to assert on appeal
and explaining why each was frivolous. Appellant has not responded to
Attorney O’Hanlon’s petition to withdraw. As we may not address the merits
of this appeal without first reviewing the request to withdraw, we review
counsel’s petition at the outset. Commonwealth v. Cartrette, 83 A.3d
1030 (Pa.Super. 2013) (en banc).
In order to be permitted to withdraw, counsel must meet three
procedural requirements: 1) petition for leave to withdraw and state that,
after making a conscientious examination of the record, counsel has
concluded that the appeal is frivolous; 2) provide a copy of the Anders brief
to the defendant; and 3) inform the defendant that he has the right to retain
private counsel or raise, pro se, additional arguments that the defendant
deems worthy of the court’s attention. Id.
Attorney O’Hanlon’s petition to withdraw sets forth that he made an
extensive review of the record and applicable law and concluded that the
appeal was wholly frivolous. He informed Appellant that he was seeking to
withdraw and furnished him with a copy of the Anders brief. Further,
-3- J-S15014-17
counsel told Appellant that he had the right to retain new counsel or could
proceed on a pro se basis and raise any additional issues he deemed worthy
of this Court’s review. A copy of counsel’s letter to Appellant is appended to
the petition to withdraw. Thus, counsel complied with the procedural
aspects of Anders.
We must now examine whether counsel’s Anders brief meets the
substantive elements of Santiago. Pursuant to Santiago, an 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 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.
Santiago, supra at 361.
In his brief, counsel summarized the factual and procedural history of
the case and referenced the portions of the record that ultimately fail to
support any issues of merit. Counsel delineated case law regarding post-
sentence requests to withdraw guilty pleas that establishes that Appellant’s
issue is frivolous. Thus, the brief is compliant with Santiago.
Next, we consider the issue raised in the Anders brief, which
challenges the validity of Appellant’s guilty plea, i.e., whether Appellant
knowingly, intelligently, and voluntarily entered the guilty plea. Specifically,
-4- J-S15014-17
Attorney O’Hanlon queries whether the trial court erred in rejecting
Appellant’s post-sentencing request to withdraw his negotiated guilty plea.
See Anders brief at 8-11.
In Commonwealth v. Pollard, 832 A.2d 517, 522 (Pa.Super. 2003)
(citations and quotation marks omitted), we observed as follows:
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.
The instant issue implicates the propriety of the trial court’s plea
colloquy. Prior to accepting a guilty plea, a trial court is required to conduct
an on-the-record plea colloquy, which inquires into 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 trial by jury?
(4) Does the defendant understand that he or she is presumed innocent until found guilty?
Free access — add to your briefcase to read the full text and ask questions with AI
J-S15014-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA
v.
ANGEL FELICIANO
Appellant No. 1781 EDA 2016
Appeal from the Judgment of Sentence February 3, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0009715-2012
BEFORE: BOWES, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY BOWES, J.: FILED MAY 22, 2017
Angel Feliciano appeals nunc pro tunc from the judgment of sentence
of twenty-five to fifty years imprisonment that was imposed after he entered
a negotiated guilty plea to third-degree murder, conspiracy, and possession
of an instrument of crime (“PIC”). Stephen O’Hanlon, Esquire, has filed a
petition to withdraw from representation 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 and affirm.
The trial court succinctly summarized the factual basis for the guilty
plea as follows: J-S15014-17
In mid-January, 2010, defendant was involved in a dispute over drug territory with the decedent, Kenneth Rolon. On January 22, 2010, defendant was a passenger in a car being driven by his co-defendant, Willey Ortiz,[1] when defendant saw Rolon standing on a street corner. Ortiz pulled over to the corner and waved Rolon over to the car. When Rolon approached the car, defendant fired a .25 caliber pistol in Rolon's chest, killing him. N.T.[,] 2/3/14[,] at 34-37.
Trial Court Opinion, 6/29/16, at 2-3.
The trial court accepted Appellant’s plea of guilty to third-degree
murder, conspiracy, and PIC, and immediately imposed the negotiated
aggregate sentence of twenty-five to fifty years incarceration. Specifically,
Appellant received twenty to forty years imprisonment for murder and a
consecutive term of five to ten years for conspiracy. No further penalty was
imposed on PIC. The aggregate sentence was imposed concurrently with a
sentence Appellant was then serving.
Appellant filed a post-sentence motion seeking to withdraw his guilty
plea. The trial court denied the petition on April 15, 2014, and we dismissed
the ensuing appeal due to Appellant’s failure to file a brief. However, after
Appellant filed a timely PCRA petition with the assistance of appointed
counsel, Attorney O’ Hanlon, the PCRA court reinstated Appellant’s direct
appeal rights nunc pro tunc. Appellant filed a timely appeal. In his ____________________________________________
1 A jury convicted Ortiz of third-degree murder, and we affirmed the ensuing twenty-to-forty-year term of imprisonment imposed by the trial court. Commonwealth v. Ortiz, 125 A.3d 438 (Pa.Super. 2015) (unpublished memorandum filed).
-2- J-S15014-17
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),
Appellant renewed his assertion that the trial court erred in denying his post-
sentence petition to withdraw the guilty plea.
On October 11, 2016, Attorney O’Hanlon filed with this Court a petition
to withdraw from representation pursuant to Anders, and he filed a
Santiago brief outlining the claims that Appellant sought to assert on appeal
and explaining why each was frivolous. Appellant has not responded to
Attorney O’Hanlon’s petition to withdraw. As we may not address the merits
of this appeal without first reviewing the request to withdraw, we review
counsel’s petition at the outset. Commonwealth v. Cartrette, 83 A.3d
1030 (Pa.Super. 2013) (en banc).
In order to be permitted to withdraw, counsel must meet three
procedural requirements: 1) petition for leave to withdraw and state that,
after making a conscientious examination of the record, counsel has
concluded that the appeal is frivolous; 2) provide a copy of the Anders brief
to the defendant; and 3) inform the defendant that he has the right to retain
private counsel or raise, pro se, additional arguments that the defendant
deems worthy of the court’s attention. Id.
Attorney O’Hanlon’s petition to withdraw sets forth that he made an
extensive review of the record and applicable law and concluded that the
appeal was wholly frivolous. He informed Appellant that he was seeking to
withdraw and furnished him with a copy of the Anders brief. Further,
-3- J-S15014-17
counsel told Appellant that he had the right to retain new counsel or could
proceed on a pro se basis and raise any additional issues he deemed worthy
of this Court’s review. A copy of counsel’s letter to Appellant is appended to
the petition to withdraw. Thus, counsel complied with the procedural
aspects of Anders.
We must now examine whether counsel’s Anders brief meets the
substantive elements of Santiago. Pursuant to Santiago, an 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 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.
Santiago, supra at 361.
In his brief, counsel summarized the factual and procedural history of
the case and referenced the portions of the record that ultimately fail to
support any issues of merit. Counsel delineated case law regarding post-
sentence requests to withdraw guilty pleas that establishes that Appellant’s
issue is frivolous. Thus, the brief is compliant with Santiago.
Next, we consider the issue raised in the Anders brief, which
challenges the validity of Appellant’s guilty plea, i.e., whether Appellant
knowingly, intelligently, and voluntarily entered the guilty plea. Specifically,
-4- J-S15014-17
Attorney O’Hanlon queries whether the trial court erred in rejecting
Appellant’s post-sentencing request to withdraw his negotiated guilty plea.
See Anders brief at 8-11.
In Commonwealth v. Pollard, 832 A.2d 517, 522 (Pa.Super. 2003)
(citations and quotation marks omitted), we observed as follows:
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.
The instant issue implicates the propriety of the trial court’s plea
colloquy. Prior to accepting a guilty plea, a trial court is required to conduct
an on-the-record plea colloquy, which inquires into 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 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?
(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?
-5- J-S15014-17
Id. at 522-523; Pa.R.Crim.P. 590(b); see also Commonwealth v. Rush,
909 A.2d 805 (Pa.Super. 2006).
Moreover,
The guilty plea colloquy must affirmatively demonstrate that the defendant understood what the plea connoted and its consequences. 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. 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. Furthermore, nothing in the rule precludes the supplementation of the oral colloquy by a written colloquy that is read, completed, and signed by the defendant and made a part of the plea proceedings.
Commonwealth v. Bedell, 954 A.2d 1209, 1212-1213 (Pa.Super. 2008)
(citations and internal quotations omitted).
During the plea colloquy in the case sub judice, Appellant confirmed
that he read, understood, and executed the written guilty plea colloquy.
N.T., 2/3/14, at 26-27. Appellant stated that he did not have questions
about the written document and that he signed it of his free will. Id. at 27.
During the trial court’s oral colloquy, Appellant stipulated to the
Commonwealth’s factual basis for the guilty plea, and verified that he was
offering the guilty plea because he committed the alleged offenses. Id. at
34-37. The court informed Appellant of the permissible range of sentences
and discussed his potential sentencing exposure. Id. at 25-27. It advised
Appellant of his right to a jury trial and the concomitant procedural rights he
-6- J-S15014-17
would be permitted to exercise during trial. Id. at 28-29. Next, the trial
court explained the nature, elements, and grading of the offenses, and
outlined the presumption of innocence and the Commonwealth’s burden of
proof. Id. at 29-34. Finally, Appellant confirmed that he was satisfied with
counsel’s representation and reiterated that he was entering into the guilty
plea freely and voluntarily. Id. at 42-43. Thereafter, the trial court
accepted Appellant’s guilty plea as voluntary, knowing, and intelligent. Id.
at 43. In light of the foregoing evidence, we conclude the certified record
demonstrates that the trial court complied with the requirements outlined in
Pollard, supra and the comment to Rule 590(b).
We have independently reviewed the certified record and found no
other preserved issues that would arguably support the direct appeal.
Having addressed the issue that might arguably support this appeal and
independently reviewed the certified record, we agree with Attorney
O’Hanlon’s position that the direct appeal is wholly frivolous. Accordingly,
we grant counsel’s petition to withdraw pursuant to Anders, supra, and
Santiago, supra.
Stephen O’Hanlon’s petition to withdraw from representation is
granted. Judgment of sentence affirmed.
-7- J-S15014-17
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 5/22/2017
-8-