Com. v. Infante, E. ( 2018 )

J-S71044-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
EDWARDO INFANTE,
Appellant No. 3666 EDA 2016
Appeal from the Judgment of Sentence December 8, 2014
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0015363-2013
BEFORE: PANELLA, J., STABILE, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED JANUARY 31, 2018
Appellant, Edwardo Infante, appeals nunc pro tunc from the judgment
of sentence imposed following his counseled, open plea of nolo contendere to
aggravated assault, attempted rape, and related charges. Counsel has filed
a petition to withdraw and an Anders brief.1 We grant the petition to
withdraw and affirm the judgment of sentence.
The underlying facts of this case are not in dispute. After assaulting a
door attendant to gain entry to an apartment house, Appellant forced his way
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1See Anders v. California, 386 U.S. 738 (1967); see also Commonwealth
v. Santiago, 978 A.2d 349, 351 (Pa. 2009).
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into the victim’s apartment, and proceeded to assault her sexually in several
ways. The door man called the police. When the police arrived, Appellant
resisted arrest and kicked a Philadelphia police sergeant in the groin. The
police had to tase Appellant to subdue him.
On June 23, 2014, Appellant filed an open, counseled plea of no contest
to reduced charges of aggravated assault, attempted rape, attempted
involuntary deviate sexual intercourse, attempted aggravated indecent
assault, and burglary. Appellant completed a written plea colloquy and the
trial court engaged in an oral colloquy with Appellant. (See Trial Court
Opinion, 3/06/17, at 3-4). The remaining charges were nol prossed.
Appellant’s plea avoided a possible aggregate sentence of not less than forty-
five nor more than ninety years in prison. (See id. at 4). On December 8,
2014, the court sentenced Appellant to a term of not less than eight nor more
than twenty years of incarceration followed by ten years of probation. At
sentencing, the trial court was informed by the pre-sentence investigation
report. (See id.).
Appellant did not then file a timely direct appeal, but his direct appeal
rights were reinstated pursuant to a petition filed under the Post Conviction
Relief Act, 42 Pa.C.S.A. §§ 9541–9546. Appellant timely appealed, nunc pro
tunc. However, his appointed counsel filed a statement of intent to file an
Anders brief in lieu of filing a statement of errors. See Pa.R.A.P. 1925(c)(4).
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Appellant has not responded. The trial court filed an opinion on March 6,
2017. See Pa.R.A.P. 1925(a).
“When presented with an Anders brief, this [C]ourt 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) (citing Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.
2007) (en banc )). To withdraw from an appeal pursuant to Anders, 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.
Santiago, supra at 361.
On review, we find that counsel served Appellant a copy of the Anders
brief, and advised him of his right to proceed pro se or to retain a private
attorney to raise any additional points he deemed worthy of this Court’s
review. We conclude that counsel has substantially complied with the
requirements of Anders and Santiago.2
____________________________________________
2 As already noted, Appellant has not responded to counsel’s motion to
withdraw.
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Furthermore, counsel concludes that Appellant has no non-frivolous
grounds for appeal. (See Anders Brief, at 3). On independent review, we
agree.
We are aware that by entering a nolo contendere plea, a
defendant does not admit that he is guilty. Commonwealth v.
Lewis, 791 A.2d 1227 (Pa. Super. 2002); see also
Commonwealth v. Moser, 999 A.2d 602 (Pa. Super.2010 ). “As
the United States Supreme Court has held, a plea of nolo
contendere is ‘a plea by which a defendant does not expressly
admit his guilt, but nonetheless waives his right to a trial and
authorizes the court for purposes of sentencing to treat him as if
he were guilty.’ North Carolina v. Alford, 400 U.S. 25, 36, 91
S.Ct. 160, 167, 27 L.Ed.2d 162, 170 (1970).” Lewis, supra at
1234 (emphasis added). “[T]he difference between a plea of nolo
contendere and a plea of guilty is that, while the latter is a
confession binding defendant in other proceedings, the former has
no effect beyond the particular case.” Moser, supra at 606(quoting Commonwealth ex rel. Monaghan v. Burke, 167
Pa.Super. 417, 74 A.2d 802, 804 (1950)). Thus, for purposes of
proceedings relating to the charges, Appellant agreed to be
treated as guilty of the crimes.
Commonwealth v. V.G., 9 A.3d 222, 226–27 (Pa. Super. 2010) (emphasis
in original).
“[A] defendant who pleads nolo contendere waives all defects and
defenses except those concerning the jurisdiction of the court, legality of
sentence, and validity of plea.” Commonwealth v. Kraft, 739 A.2d 1063,
1064 (Pa. Super. 1999) (footnote and citation omitted). On independent
review, we find no non-frivolous basis to assert any of these defenses.
Judgment of sentence affirmed. Permission to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/31/18
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