Com. v. Rivera, A.

• Court: Superior Court of Pennsylvania
• Decided: June 23, 2023
• Docket: 1642 MDA 2022
• Status: Unpublished

Opinion

J-S12015-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ALEXANDER RIVERA : : Appellant : No. 1642 MDA 2022

Appeal from the Judgment of Sentence Entered October 25, 2022 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0002208-2022

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ALEXANDER RIVERA : : Appellant : No. 1643 MDA 2022

Appeal from the Judgment of Sentence Entered October 25, 2022 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0002206-2022

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ALEXANDER RIVERA : : Appellant : No. 1644 MDA 2022 J-S12015-23

Appeal from the Judgment of Sentence Entered October 25, 2022 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0002207-2022

BEFORE: KUNSELMAN, J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.: FILED JUNE 23, 2023

Alexander Rivera appeals from the judgment of sentence imposed

following his guilty plea to multiple offenses. Additionally, Rivera’s counsel

filed a petition to withdraw from representation and an accompanying brief

pursuant to Anders v. California, 386 U.S. 738, 744 (1967). Upon review,

we grant counsel’s petition, and affirm the judgment of sentence.

These cases arose from Rivera selling drugs to a confidential informant

on three separate occasions. Rivera was charged with three counts each of

delivery of cocaine and criminal use of a communication facility.1

Rivera entered a negotiated guilty plea to all charges. The trial court

sentenced Rivera to four years’ probation, in accordance with the guilty plea

agreement. No post-sentence motion was filed.

Rivera, pro se, filed this timely appeal. 2 Counsel sought leave from

this Court to withdraw, which we granted. Following remand and a Grazier

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* Retired Senior Judge assigned to the Superior Court.

1 35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 7512(a).

2This case involves multiple trial court dockets. Although Rivera filed a notice of appeal listing all three trial court dockets, implicating Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), we observe that Rivera filed three separate (Footnote Continued Next Page)

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hearing, the trial court appointed new counsel for Rivera. New counsel filed a

petition to withdraw from representation and an Anders brief with this Court.

Rivera did not retain independent counsel or file a pro se response to the

Anders brief.

Before we may consider the issues raised in the Anders brief, we must

first consider counsel’s petition to withdraw from representation. See

Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super. 2010) (holding

that, 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). Pursuant to Anders, when counsel believes an appeal is frivolous

and wishes to withdraw from representation, counsel must do the following:

(1) petition the court for leave to withdraw stating that after making a conscientious examination of the record, counsel has determined the appeal would be frivolous; (2) file a brief referring to any issues that might arguably support the appeal, but which does not resemble a no-merit letter; and (3) furnish a copy of the brief to the defendant and advise him of his right to retain new counsel, proceed pro se, or raise any additional points he deems worthy of this Court's attention.

Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006)

(citation omitted). In Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009), our Supreme Court addressed the second requirement of Anders, i.e.,

the contents of an Anders brief, and required that the brief:

notices, each with a different number highlighted. We therefore decline to quash Rivera’s appeal. See Commonwealth v. Johnson, 236 A.3d 1141 (Pa. Super. 2020) (en banc).

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(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, 978 A.2d at 361. Once counsel has satisfied the Anders

requirements, it is then this Court’s responsibility “to conduct a simple review

of the record to ascertain if there appear on its face to be arguably meritorious

issues that counsel, intentionally or not, missed or misstated.”

Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018).

Here, counsel has complied with each of the requirements of Anders.

Counsel indicated that he reviewed the record and concluded that Rivera’s

appeal is frivolous. Further, the Anders brief substantially comports with the

requirements set forth by our Supreme Court in Santiago. Finally, the record

included a copy of the letter that counsel sent to Rivera stating counsel’s

intention to seek permission to withdraw and advising Rivera of his right to

proceed pro se or retain new counsel and file additional claims. Accordingly,

as counsel has complied with the procedural requirements for withdrawing

from representation, we will conduct an independent review to determine

whether Rivera’s appeal is wholly frivolous.

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In the Anders brief, counsel sets forth one issue that Rivera wishes to

raise: Whether Rivera should be able to withdraw his guilty plea because he

was not in the right state of mind when he was informed about his case and

did not have enough time to consider his decision. Anders Brief at 10.

“A defendant wishing to challenge the voluntariness of a guilty plea on

direct appeal must either object during the plea colloquy or file a motion to

withdraw the plea within ten days of sentencing.” Commonwealth v.

Lincoln, 72 A.3d 606, 609-610 (Pa. Super. 2013); Pa.R.Crim.P. 720. Failing

to do so generally results in the waiver of the issue on appeal. Lincoln, 72

A.3d at 610.

Upon review of the record, we observe that Rivera failed to do either.

Rivera’s issue, therefore, is waived. Further, because it is waived, Rivera’s

issue is frivolous under Anders. See Commonwealth v. Tukhi, 149 A.3d

881, 888–89 (Pa. Super. 2016); see also Commonwealth v. Kalichak, 943

A.2d 285, 291 (Pa. Super. 2008) (“Having been waived, pursuing this matter

on direct appeal is frivolous.”). However, even if Rivera’s issue was not

waived, we still would conclude that it is frivolous.

To be valid, a guilty plea must be voluntary, knowing, and intelligent.

Commonwealth v. Persinger, 615 A.2d 1305 (Pa. 1992). There are six

relevant areas of inquiry which, at a minimum, must be addressed at a guilty

plea colloquy. These areas are as follows:

(1) Does the defendant understand the nature of the charges to which he or she is pleading guilty or nolo contendere?

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(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?

Pa.R.Crim.P. 590. A reviewing court evaluates the adequacy of the plea

colloquy and the voluntariness of the resulting plea by examining the totality

of the circumstances surrounding the entry of that plea. Commonwealth v.

Muhammad, 794 A.2d 378 (Pa. Super. 2002).

Here, the record shows that the trial court addressed the six required

areas through oral colloquy of Rivera. When Rivera’s response seemed

somewhat tentative, the court offered to stop the proceeding, but Rivera

continued. Additionally, when the trial indicated that Rivera did not have to

plea, that he could go to trial if he wanted, Rivera indicated he wanted to

plead. Rivera also completed and signed the written guilty plea colloquy which

he reviewed with his counsel at the time. Lastly, we note, because Rivera had

no prior record, the Commonwealth offered him probation which was not

typically done. Given these circumstances, if Rivera had preserved this issue,

we would conclude that his pleas were valid under Pa.R.Crim.P. 590.

Based upon the foregoing, we conclude that Rivera’s sole claim on

appeal is frivolous. Further, in accordance with Dempster, we have

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independently reviewed the certified record to determine if there are any non-

frivolous issues that counsel may have overlooked. Having found none, we

agree that the appeal is wholly frivolous. Consequently, we grant counsel’s

petition to withdraw and affirm the judgment of sentence.

Petition to withdraw granted. Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 06/23/2023

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