Com. v. Santiago-Rivera, T. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TOMAS SANTIAGO-RIVERA :
:
Appellant : No. 1186 MDA 2022
Appeal from the Judgment of Sentence Entered March 22, 2022
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0003174-2020
BEFORE: OLSON, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY McCAFFERY, J.: FILED MAY 05, 2023
Tomas Santiago-Rivera (Appellant) appeals from the judgment of
sentence entered in the Berks County Court of Common Pleas, following his
guilty plea to one count of driving under the influence of a controlled substance
(DUI).1 Contemporaneous with this appeal, Appellant’s counsel, Emily
Washburn, Esquire, has filed a petition to withdraw from representation and
an Anders brief.2 The Anders brief challenges the validity of Appellant’s
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* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S. § 3802(d)(2).
2 See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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guilty plea and the discretionary aspect of his sentence. We affirm the
judgment of sentence and grant counsel’s petition to withdraw.
At the plea hearing, the parties stipulated to the facts as set forth in the
affidavit of probable cause, accompanying the police criminal complaint, which
stated the following. N.T., 3/22/22, at 5. On August 4, 2020, at
approximately 1:10 a.m., State Troopers Travis Rutt and Philip Cyphers
investigated a single car accident on Interstate 78 in Greenwich Township,
Berks County. Affidavit of Probable Cause, 9/15/20, at 1. A witness reported
that Appellant was driving at high speed when he hit a concrete barrier. Id.
at 3. The car “careened back into the left lane and struck the center concrete
barrier” again. Id. Appellant’s car then spun and came to a rest. Id.
State Trooper Rutt stated that Appellant “demonstrated a wide array of
emotions . . . from crying to calm, to laughing and to depressed.” Affidavit of
Probable Cause at 3. State Trooper Rutt also noted that Appellant’s eyes were
bloodshot and glassy. Id. Finally, State Trooper Rutt conducted a field
sobriety test and a preliminary breath test, which was positive for the
presence of alcohol. Id. Appellant was subsequently arrested and charged
with DUI, as well as several traffic violations.3
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3 The charges included: 75 Pa.C.S. §§ 3802(a)(1) (driving while under the
influence of alcohol), 3309(1) (driving on roadways laned for traffic), 3361
(driving at unsafe speed), and 3714(a) (careless driving).
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On March 22, 2022, Appellant, represented by Attorney Washburn,
entered a negotiated guilty plea for one count of DUI. The Commonwealth
stated the parties had agreed to the “mandatory minimum sentence of 90
days to five years and a $1,500 fine.” N.T. at 4. Immediately thereafter, the
trial court imposed the agreed-upon sentence.
On March 30, 2022, Appellant timely filed a post-sentence motion to
withdraw his guilty plea. The docket reveals that on August 26, Appellant filed
a notice of appeal, but the post-sentence motion was not denied by operation
of law until three days thereafter, August 29th.4 However, “where the clerk
of courts does not enter an order indicating that the post-sentence motion is
denied by operation of law and notify the defendant of same, a breakdown in
the court system has occurred and we will not find an appeal untimely under
these circumstances.” Commonwealth v. Perry, 820 A.2d 734, 735 (Pa.
Super. 2003). We thus deem Appellant’s notice of appeal as timely filed.
On September 14, 2022, the trial court directed Appellant to file, within
21 days, a Pa.R.A.P. 1925(b) statement of errors complained of on appeal.
Two days after this deadline, on October 7th, Attorney Washburn filed a
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4 See Pa.R.Crim.P. 720(B)(3)(a) (“If the judge fails to decide the [post-
sentence] motion within 120 days . . . the motion shall be deemed denied by
operation of law.”), (c) (“When a post-sentence motion is denied by operation
of law, the clerk of courts shall forthwith enter an order on behalf of the
court . . .”). Here, the 120th day after the filing of the post-sentence motion
was July 28, 2022.
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statement of intent to file an Anders brief two days after the deadline. See
Pa.R.A.P. 1925(c)(4).
Generally, the failure to file a timely, court-ordered Rule 1925(b)
statement results in waiver of all issues for appeal. Commonwealth v. Hess,
810 A.2d 1249, 1252 (Pa. 2002). We further note that pursuant to
Pennsylvania Rule of Criminal Procedure 114(C), a docket entry for a court
order shall include the date of service of the order. Pa.R.Crim.P. 114(C)(2)(c).
In Commonwealth v. Hess, 810 A.2d 1249 (Pa. 2002), a docket sheet did
not indicate the date of service of a trial court’s Rule 1925(b) order. Id. at
1254. The Pennsylvania Supreme Court held that given “this failure to comply
with the mandatory procedures under Rule 114, [the Court was] unable to
ascertain the date upon which [the a]ppellant was purportedly served with the
. . . 1925(b) order and, therefore, [it] simply cannot conclude when, if ever,
the [filing] period under Rule 1925(b) began to run.” Id. The Supreme Court
concluded that the appellant could not “be penalized for failing to file a timely
1925(b) statement.” Id. at 1255.
Similarly, here the trial court docket does not state the date of service
for the Rule 1925(b) order. As a result, we are unable to determine when
Appellant received the order. See Hess, 810 A.2d at 1254. Therefore, we
deem Attorney Washburn’s filing of the statement to be timely and proceed to
a review of the issues raised in the Anders brief.
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When counsel files a petition to withdraw and accompanying Anders
brief, we must first examine the request to withdraw before addressing any of
the substantive issues raised on appeal. Commonwealth v. Bennett, 124
A.3d 327, 330 (Pa. Super. 2015). An attorney seeking to withdraw from
representation on appeal
must: 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 that he
or she has the right to retain private counsel or raise additional
arguments that the defendant seems worthy of the court’s
attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc). Pursuant to Santiago, counsel must also:
(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.
Id., quoting Santiago, 978 A.2d at 361.
In Attorney Washburn’s Anders brief, she aptly summarized the
pertinent factual and procedural history with citations to the records. Anders
Brief at 6-9. Attorney Washburn states that after a conscientious review of
the record and applicable law, she concludes the appeal is frivolous. Id. at
17. Moreover, Attorney Washburn has provided this Court with a copy of the
letter she sent to Appellant, advising him of his right to proceed with newly
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retained counsel or pro se, and to raise any additional points for this Court’s
attention. See Attorney Washburn’s Letter to Appellant, 1/13/23. Therefore,
the brief and petition to withdraw filed by Attorney Washburn comply with the
requirements of Anders and Santiago. See Cartrette, 83 A.3d at 1032.
We note Appellant has not filed a response.
The Anders brief identifies two potential claims for our review:
A. Whether Appellant can support the standard of manifest
injustice required to withdraw his negotiated guilty plea.
B. Whether Appellant, having entered into a negotiated guilty
plea, can challenge the discretionary aspects of his sentence.
Anders Brief at 5.
We now make an independent review of these issues and conduct “a full
examination of all the proceedings, to decide whether the case is wholly
frivolous[.]” See Commonwealth v. Yorgey, 188 A.3d 1190, 1196 (Pa.
Super. 2018) (en banc) (citation omitted). If we agree with counsel’s
assessment, we “may grant counsel’s request to withdraw and dismiss the
appeal[.]” Id. (citation omitted).
Appellant first seeks to withdraw this negotiated guilty plea, asserting
that “it was manifestly unjust.” Anders Brief at 10. It is well settled that “by
entering a guilty plea, the defendant waives his right to challenge on direct
appeal all nonjurisdictional defects except the legality of the sentence and the
validity of the plea.” Commonwealth v. Lincoln, 72 A.3d 606, 609 (Pa.
Super. 2013). Indeed,
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there is no absolute right to withdraw a guilty plea;[ ] trial courts
have discretion in determining whether a withdrawal request will
be granted; such discretion is to be administered liberally in favor
of the accused; and any demonstration by a defendant of a fair-
and-just reason will suffice to support a grant, unless withdrawal
would work substantial prejudice to the Commonwealth.
Commonwealth v. Carrasquillo, 115 A.3d 1284, 1291-92 (Pa. 2015)
(citation omitted).
Further, “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.” Lincoln, 72 A.3d
at 609-10, citing Pa.R.Crim.P. 720(B)(1)(a)(i).
[A] defendant who attempts to withdraw a guilty plea after
sentencing must demonstrate prejudice on the order of manifest
injustice before withdrawal is justified. A plea rises to the level of
manifest injustice when it was entered into involuntarily,
unknowingly, or unintelligently. . . .
* * *
The determination [of materiality] must be fact- and case-specific.
...
Lincoln, 72 A.3d at 610 (citations and quotation marks omitted). “A
defendant is bound by the statements he makes during his plea colloquy, and
may not assert grounds for withdrawing the plea that contradict statements
made when he pled.” Commonwealth v. Stork, 737 A.2d 789, 790-91 (Pa.
Super. 1999) (citations omitted).
Our law presumes that a defendant who enters a guilty plea was
aware of what he was doing. He bears the burden of proving
otherwise. [W]here the record clearly demonstrates that a guilty
plea colloquy was conducted, during which it became evident that
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the defendant understood the nature of the charges against him,
the voluntariness of the plea is established. Thus,
[a] court accepting a defendant’s guilty plea is required
to conduct an on-the-record inquiry during the plea
colloquy. The colloquy must inquire 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?
Commonwealth v. Rush, 909 A.2d 805, 808-09 (Pa. Super. 2006) (citations
omitted). See also Pa.R.Crim.P 590, cmt.
Here, Appellant properly preserved his claim in a timely filed post-
sentence motion before the trial court. See Lincoln, 72 A.3d at 609-10. The
record reveals Appellant participated in a comprehensive and thorough written
colloquy, which was followed by an oral colloquy. See Statement
Accompanying Appellant’s Request to Enter a Guilty Plea, 3/22/22, at 1-4. In
the written colloquy, Appellant agreed that he understood: (1) he is presumed
to be innocent until proven guilty of the offenses charged; (2) he has the right
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to a jury trial; (3) by pleading guilty, he is giving up the right to go to trial;
(4) by pleading guilty, he is giving up his right to file pre-trial motions; and
(5) he understood the nature of the charges to which he was pleading guilty.
Id. at 2. Appellant stated that he has not had any drugs, alcohol, or
medication within the last 48 hours. Id. at 6. We further note the following
exchange at the plea hearing:
[Commonwealth]: The plea agreement has been negotiated
between your attorney and the Commonwealth calling for you to
enter this plea in exchange for . . . a mandatory minimum
sentence of 90 days to five years and a $1,500 fine. Is that your
understanding of the agreement?
[Appellant]: Yes.
* * *
THE COURT: Has anyone forced, threatened, or coerced you
into pleading guilty?
[Appellant]: No.
THE COURT: You have [filled] out, signed, and submitted
documents to the Court. Have you had an opportunity to speak
with [your attorney] about those documents?
[Appellant]: Yes, we talked about it.
THE COURT: You understand what those documents mean?
[Appellant]: It means three months in jail, one-year
probation.
THE COURT: That is part of it. Do you have any questions
about those documents?
[Appellant]: I’m good. She explained it. She explained it
correctly. . . .
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N.T. at 4, 6.
The record does not support a claim that Appellant entered into the
guilty plea unknowingly, involuntarily, or unintelligently. Therefore, we
conclude that Appellant has not established manifest injustice justifying the
withdrawal of his guilty plea. See Lincoln, 72 A.3d at 610.
The second issue raised in the Anders brief is a challenge to the
discretionary aspects of Appellant’s sentence. This Court has stated:
[W]hen the plea agreement contains a negotiated sentence
which is accepted and imposed by the sentencing court,
there is no authority to permit a challenge to the
discretionary aspects of that sentence. If either party to a
negotiated plea agreement believed the other side could, at any
time following entry of sentence, approach the judge and have the
sentence unilaterally altered, neither the Commonwealth nor any
defendant would be willing to enter into such an agreement.
Permitting a discretionary appeal following the entry of a
negotiated plea would undermine the designs and goals of plea
bargaining, and would make a sham of the negotiated plea
process[.]
Commonwealth v. Morrison, 173 A.3d 286, 290 (Pa. Super. 2017)
(citations omitted and emphasis added).
In the instant case, Appellant negotiated a plea deal, which included the
term of sentence that he now disputes. See Statement Accompanying
Appellant’s Request to Enter a Guilty Plea at 3. Following Appellant’s
acceptance of the guilty plea, the trial court imposed the agreed upon
sentence. Further, we reiterate that Appellant received the minimum
sentence. We conclude that no relief is due.
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Moreover, our independent review of the record reveals no non-frivolous
issues to be raised on appeal. See Yorgey, 188 A.3d at 1196. Accordingly,
we grant Attorney Washburn’s petition to withdraw, and we affirm the
judgment of sentence.
Judgment of sentence affirmed. Attorney Washburn’s petition to
withdraw from representation granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/05/2023
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