Com. v. Bautista, L. ( 2023 )

J-S15027-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LUIS ANGEL BAUTISTA :
:
Appellant : No. 1393 MDA 2022
Appeal from the Judgment of Sentence Entered September 1, 2022
In the Court of Common Pleas of Berks County
Criminal Division at No.: CP-06-CR-0003613-2021
BEFORE: BOWES, J., STABILE, J., and SULLIVAN, J.
MEMORANDUM BY STABILE, J.: FILED OCTOBER 17, 2023
Appellant Luis Angel Bautista appeals from the September 1, 2022
judgment of sentence entered in the Court of Common Pleas of Berks County
(“trial court”), following his negotiated guilty plea to one count of rape of a
child, 18 Pa.C.S.A. § 3121(c). His counsel has filed a brief and an application
to withdraw pursuant to Anders v. California, 386 U.S. 738 (1969), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we
affirm the judgment of sentence and grant counsel’s application to withdraw.
The facts and procedural history of this case are undisputed. Briefly, in
connection with the sexual abuse of a twelve-year-old girl that resulted in
pregnancy and the delivery of a baby boy, Appellant was charged with multiple
sex crimes. On May 12, 2022, Appellant entered into a negotiated guilty plea
to rape of child, in exchange for a sentence of 8 to 20 years’ incarceration,
followed by 3 years’ probation, and the dismissal of the remaining charges.
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On September 1, 2022, the trial court sentenced Appellant consistent with the
negotiated guilty plea. Separately, the trial court determined Appellant not to
be a sexually violent predator.1 On September 26, 2022, Appellant appealed
to this Court. The trial court directed Appellant to file a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal. Instead of the court-ordered
Rule 1925(b) statement, Appellant’s counsel filed a statement of intent to file
an Anders brief under Pa.R.A.P. 1925(c)(4).2
On February 22, 2023, Appellant’s counsel filed in this Court an
application to withdraw as counsel and filed an Anders brief, wherein counsel
for the first time claimed that Appellant’s negotiated plea was involuntary and
unknowing. Anders Brief at 5. In response, the trial court issued a brief Rule
1925(a) statement.
____________________________________________
1 On September 21, 2022, Appellant filed a “Motion for Judgment on the
Pliding [(sic)] Short Form,” that the trial court dismissed as untimely on
September 30, 2022. Therein, however, Appellant did not challenge—or
otherwise seek to withdraw—his negotiated guilty plea.
2 Rule 1925(c)(4) provides:
In a criminal case, counsel may file of record and serve on the
judge a statement of intent to file an [Anders] brief in lieu of filing
a Statement. If, upon review of the [Anders] brief, the appellate
court believes that there are arguably meritorious issues for
review, those issues will not be waived; instead, the appellate
court may remand for the filing of a Statement, a supplemental
opinion pursuant to Rule 1925(a), or both. Upon remand, the trial
court may, but is not required to, replace appellant’s counsel.
Pa.R.A.P. 1925(c)(4).
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When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first examining counsel’s petition to
withdraw. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.
2007) (en banc). It is well-established that, in requesting a withdrawal,
counsel must satisfy the following procedural requirements: 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) provide a copy of the brief to the defendant; and 3) advise the
defendant that he or she has the right to retain private counsel, proceed pro
se or raise additional arguments that the defendant considers worthy of the
court’s addition. Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.
2009).
Instantly, counsel’s application to withdraw from representation
provides that counsel reviewed the record and concluded that the appeal is
frivolous. Furthermore, counsel notified Appellant that he was seeking
permission to withdraw and provided Appellant with copies of the petition to
withdraw and his Anders brief. Counsel also advised Appellant of his right to
retain new counsel, proceed pro se, or raise any additional points he deems
worthy of this Court’s attention. Accordingly, we conclude that counsel has
satisfied the procedural requirements of Anders.
We next must determine whether counsel’s Anders brief complies with
the substantive requirements of Santiago, wherein our Supreme Court held:
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[I]n the Anders brief that accompanies court-appointed counsel’s
petition to withdraw, 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, 978 A.2d at 361. Here, our review of counsel’s brief indicates that
he has complied with the briefing requirements of Santiago. We, therefore,
conclude that counsel has satisfied the minimum requirements of
Anders/Santiago.
Once counsel has met his obligations, “it then becomes the responsibility
of the reviewing court to make a full examination of the proceedings and make
an independent judgment to decide whether the appeal is in fact wholly
frivolous.” Santiago, 978 A.2d at 355 n.5.
We now turn to the merits of Appellant’s appeal, wherein he challenges
the validity of his guilty plea. This issue, however, is waived. Appellant did
not object to the guilty plea during the plea colloquy or file any post-sentence
motions seeking to withdraw his guilty plea. See Commonwealth v.
Lincoln, 72 A.3d 606, 610-11 (Pa. Super. 2013) (holding defendant failed to
preserve challenge to validity of guilty plea where he did not object during
plea colloquy or file post-sentence motion to withdraw plea), appeal denied,
87 A.3d 319 (Pa. 2014); Commonwealth v. D’Collanfield, 805 A.2d 1244,
1246 (Pa. Super. 2002) (noting that the appellant’s claim challenging the
validity of guilty plea was waived because the appellant neither objected
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during colloquy nor challenged it in a post-sentence motion); see also
Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i) (stating post-sentence motion
challenging validity of plea of guilty or nolo contendere shall be filed no later
than 10 days after imposition of sentence); Pa.R.A.P. 302(a) (“Issues not
raised in the trial court are waived and cannot be raised for the first time on
appeal”). Moreover, historically, Pennsylvania courts adhere to this waiver
principle because “[i]t is for the court which accepted the plea to consider and
correct, in the first instance, any error which may have been committed.”
Commonwealth v. Roberts, [] 352 A.2d 140, 141 (Pa. Super. 1975)
(holding that common and previously condoned mistake of attacking guilty
plea on direct appeal without first filing petition to withdraw plea with trial
court is procedural error resulting in waiver; stating, “(t)he swift and orderly
administration of criminal justice requires that lower courts be given the
opportunity to rectify their errors before they are considered on appeal”;
“Strict adherence to this procedure could, indeed, preclude an otherwise
costly, time consuming, and unnecessary appeal to this court”). Accordingly,
Appellant is not entitled to relief.3
Separately, based upon our independent review of the record, as
detailed above, we agree with counsel that Appellant has not raised any non-
frivolous matters herein. We, therefore, affirm the judgment of sentence and
grant counsel’s application to withdraw.
____________________________________________
3 We decline to opine on the merits of the issue asserted on appeal.
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Judgment of sentence affirmed. Application to withdraw granted.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 10/17/2023
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