Com. v. Vega-Alvarado, M.

• Court: Superior Court of Pennsylvania
• Decided: March 11, 2016
• Docket: 1615 MDA 2015
• Status: Unpublished

Opinion

J-S18013-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

MONICA C. VEGA-ALVARADO,

Appellant No. 1615 MDA 2015

Appeal from the Judgment of Sentence July 30, 2015 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0002046-2015

BEFORE: BOWES, LAZARUS AND STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.: FILED MARCH 11, 2016

Monica C. Vega-Alvarado appeals from the judgement of sentence of

eleven and one-half months to twenty-three months imprisonment that was

imposed pursuant to a negotiated guilty plea to possession of a controlled

substance (cocaine). We affirm and grant counsel’s petition to withdraw

from representation.

We glean the pertinent facts from the affidavit of probable cause and

the Commonwealth’s presentation of the factual basis for the guilty plea. On

October 5, 2014, Reading Police Officer Eric Niemsyk encountered Appellant

and other unidentified individuals at the intersection of Bingham and 18 th

Streets in Reading, Pennsylvania. Dressed in full uniform, Officer Niemsyk

alighted his marked patrol car and asked Appellant and her companions for

* Retired Senior Judge assigned to the Superior Court. J-S18013-16

identification. After they provided their names, Officer Niemsyk told the

group that they were free to leave. Before Appellant walked too far away,

Officer Niemsyk called out, “Hey, can I ask you something” and Appellant

responded affirmatively. See Criminal Complaint, 2/12/15, at AOPC Form

411C. The officer reminded Appellant that she was still free to leave and

then inquired whether “she had anything illegal on her.” Id. Appellant

initially failed to respond, but on Officer Niemsyk’s second query, she

produced a clear plastic bag of crack cocaine from her bra and surrendered it

to him. Id. Appellant is not a person who is registered, licensed, or

authorized to possess the controlled substance. Criminal Complaint,

2/12/15; N.T., 7/30/15, at 4.

Appellant was charged with one count each of possession of a

controlled substance and possession of paraphernalia. Represented by the

Office of the Berks County Public Defender, Appellant executed a negotiated

guilty plea to possession of a controlled substance graded as a

misdemeanor. As part of the agreement, the Commonwealth requested that

the trial court impose the agreed-upon sentence of eleven and one-half

months to twenty-three months imprisonment, a standard range sentence in

light of Appellant’s prior record and offense gravity scores, and moved to

dismiss the remaining offense. N.T., 7/30/15, at 5. Appellant executed a

written guilty plea, and following an oral colloquy, the trial court found the

Appellant was entering the plea knowingly, intelligently, and voluntarily,

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accepted the terms of the negotiated plea agreement, dismissed the

remaining count, and immediately entered the judgment of sentence. Id. at

3-5. Thereafter, the trial court ensured that Appellant had been advised of

her post-sentence and appellate rights. Id. at 6.

Appellant filed a timely post-sentence motion seeking solely to reduce

her sentence. On August 19, 2015, the trial court denied the motion. This

timely appeal followed. In response to the trial court’s order to file a concise

statement of errors complained of on appeal, Assistant Public Defender

Christopher M. Price invoked Pa.R.A.P. 1925(c)(4) and filed a statement of

his intent to file an Anders brief and petition to withdraw from

representation.1

We may not address the merits of the appeal without first reviewing

the request to withdraw. Commonwealth v. Rojas, 874 A.2d 638, 639

(Pa.Super. 2005). Accordingly, we review Attorney Price’s petition at the

outset.

In Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009), our

Supreme Court altered our application of the Anders briefing requirements

to permit counsel to fully articulate his or her conclusion that the appeal is

frivolous. The Santiago Court did not change the remaining procedural

requirements that court-appointed counsel must satisfy in requesting to ____________________________________________

1 See Anders v. California, 386 U.S. 738 (1967).

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withdraw from representation, i.e.: (1) petition the court for leave to

withdraw stating that, after making a conscientious examination of the

record, counsel has determined that the appeal would be frivolous;

(2) furnish a copy of the brief to the defendant; and (3) advise the

defendant of his or her right to retain new counsel or raise any additional

points that he or she deems worthy of the court's attention.

Herein, Attorney Price’s petition to withdraw from representation

stated that he had made a conscientious review of the record and had

concluded that the appeal was wholly frivolous. In addition, Attorney Price

attested that he mailed to Appellant: a copy of the petition to withdraw; a

copy of the Anders brief stating the reasons for his conclusion; and a letter

advising Appellant of her rights to proceed pro se or to retain private counsel

if the petition is granted and to raise any additional issues that she deemed

worthy of consideration.2 Significantly, with respect to the latter

requirement, Attorney Price mailed Appellant a letter advising her of her

rights. See Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super.

2005). Thus, counsel has satisfied the procedural requirements of Anders.

Having found procedural compliance, we now must determine whether

Attorney Price’s Anders brief complies with the substantive dictates outlined

in Santiago. We conclude that it does. Attorney Price’s Anders brief 1) ____________________________________________

2 Appellant neglected to respond to counsel’s letter or the petition to withdraw.

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summarized the procedural history and pertinent facts with citation to the

certified record; 2) identified the testimony adduced during the evidentiary

hearing that arguably supports the appeal and outlines potential claims that

the certified record does not sustain the statutory grounds for termination;

3) referenced controlling case law in setting forth his conclusion that the

appeal is frivolous; and 4) explained his finding that it is. Accordingly,

Attorney Price satisfied the Santiago requirements.

Next, we consider the issue raised in the Anders brief,

Whether the trial court erred in denying Appellant’s Post Sentence Motion to Modify Sentence where . . . Appellant was remorseful[,] . . . expected no further contact with the criminal justice system, and wishe[d] to consummate a meaningful and accelerated reintegration to society.

Appellant’s brief at 5.

Appellant’s claim challenges the discretionary aspects of her sentence.

Before we reach the merits of a discretionary sentencing issue, we must

ascertain whether 1) a timely appeal was filed from the judgment of

sentence; 2) the issue was preserved during the trial court proceedings; 3)

the appellant complied with Pa.R.A.P. 2119(f); and 4) the Rule 2119(f)

statement reveals a substantial question that the sentence was not

appropriate under the sentencing code. Commonwealth v. Lebarre, 961

A.2d 176, 178 (Pa.Super. 2008).

Herein, Appellant filed a timely appeal and previously preserved the

claim in her post-sentence motion. Attorney Price declined to raise the issue

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in a Rule 1925(b) statement on the grounds that the claim was baseless and

that he intend to file the instant Anders brief, which omitted the required

Pa.R.A.P. 2119 statement, ostensibly for the same reason. In light of

Appellant’s timely appeal, preservation of her claim in a post-sentence

motion, and our obligation to perform an independent review of this case, to

the extent that the certified record reveals a non-frivolous claim, we will not

find that claimed waived due to counsel’s omissions.

Our standard of review is well settled. “Sentencing is a matter vested

within the discretion of the trial court and will not be disturbed absent a

manifest abuse of discretion.” Commonwealth v. Crump, 995 A.2d 1280

1282-1283 (Pa.Super. 2010). To establish an abuse of discretion, Appellant

must prove that the sentencing court arrived at a manifestly unreasonable

sentence, ignored or misapplied the law, or exercised its judgment with

impartiality, prejudice, bias or ill will. Commonwealth v. Walls, 926 A.2d

957, 961 (Pa. 2007). None of the foregoing conditions are implicated in the

case at bar.

It is well-settled that “where a defendant pleads guilty pursuant to a

plea agreement specifying particular penalties, the defendant may not seek

a discretionary appeal relating to those agreed-upon penalties.”

Commonwealth v. Brown, 982 A.2d 1017, 1019 (Pa.Super. 2009).

Herein, Appellant entered a negotiated guilty plea to possession of a

controlled substance graded as a misdemeanor. The trial court accepted the

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terms of the accord and entered the agreed-upon sentence. Hence,

pursuant to Brown, supra, Appellant received the benefit of her plea

bargain and she cannot seek to challenge the negotiated penalty as

excessive. This issue is wholly frivolous.

Finally, we have independently reviewed the certified record and found

no preserved issues that would arguably support the direct appeal. The

guilty plea proceeding confirms that Appellant entered the guilty plea

knowingly, intelligently, and voluntarily. See Commonwealth v. Pollard,

832 A.2d 517, 522-523 (Pa.Super. 2003); Pa.R.Crim.P. 590. Stated plainly,

Appellant understood the nature of the charges to which she pled guilty,

adopted the Commonwealth’s factual basis for the plea, and acknowledged

her right to a jury trial and the presumption of her innocence. Moreover,

Appellant was aware of her maximum sentencing exposure—three years

imprisonment and a $25,000 fine, and she understood that the trial court

would not be bound by the terms of the negotiated plea unless it accepts the

agreement. In addition to the oral colloquy, the certified record includes a

written colloquy that Appellant read, completed, signed, and then reaffirmed

on the record during the plea proceeding. There are no preserved non-

frivolous issues that would support this appeal.

Having addressed the issue leveled in the Anders brief and

independently reviewed the certified record, we agree with Attorney Price

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that the direct appeal is wholly frivolous. Accordingly, we grant counsel’s

petition to withdraw pursuant to Anders, supra and Santiago, supra.

Petition of Christopher Price, Esquire, to withdraw from representation

is granted. Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/11/2016

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