Com. v. Rivera, A. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37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
____________________________________________
* 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)
-2-
J-S12015-23
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).
-3-
J-S12015-23
(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.
-4-
J-S12015-23
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?
-5-
J-S12015-23
(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
-6-
J-S12015-23
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
-7-