Com. v. Martinez, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JOHN FABIO MARTINEZ, :
:
Appellant : No. 1511 EDA 2015
Appeal from the Judgment of Sentence April 24, 2015
in the Court of Common Pleas of Philadelphia County,
Criminal Division, No(s): CP-51-CR-0007483-2014
BEFORE: PANELLA, RANSOM and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED January 20, 2017
John Fabio Martinez (“Martinez”) appeals from the judgment of
sentence imposed following his negotiated guilty pleas to one count each of
criminal mischief and stalking, and two counts of contempt of order or
agreement.1 See 18 Pa.C.S.A. §§ 3304(a)(5), 2709.1(a)(1); 23 Pa.C.S.A.
§ 6114(a). Additionally, Jill Heilman, Esquire (“Attorney Heilman”),
Martinez’s counsel, has filed a Petition to Withdraw as counsel and an
accompanying brief pursuant to Anders v. California, 386 U.S. 738, 744
(1967). We grant Attorney Heilman’s Petition to Withdraw, and affirm
Martinez’s judgment of sentence.
1
Martinez was charged on three separate dockets. Martinez pled guilty to
criminal mischief and one count of contempt for violation of order or
agreement on January 30, 2015. Sentencing was deferred for consolidation.
At the sentencing hearing on April 24, 2015, Martinez pled guilty to the
remaining charges.
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In its Opinion, the trial court set forth the relevant facts underlying
this appeal as follows:
On April 27, 2014, at approximately 4:30 a.m.[,] in the area of
303 Magee Ave[nue] in the City and County of Philadelphia, []
Patricia Martinez [(“Patricia”)] observed [Martinez] outside her
home standing next to her car. When [Patricia] later inspected
her car, all four tires had been slashed and the exterior of the
vehicle had been keyed. At the time, there was an active
Protection from Abuse ([“]PFA[”]) order in place against
[Martinez].
On December 25, 2014, … [Patricia] observed [Martinez] walking
around her home ominously. She later received [F]acebook
messages from [Martinez] stating that he was going to kill
himself. On that date, there was a PFA order in place against
[Martinez].
On January 28, 2015, [Patricia] again saw [Martinez] outside her
home…. She asked him to leave and went inside her home.
[Martinez] refused to leave and continued banging on the rear
door of the home. Eventually, [Martinez] shattered the glass
door.
Trial Court Opinion, 12/18/15, at 1-2.
On April 24, 2015, Martinez was sentenced to a total of four years of
probation—three years of reporting probation, followed by one year of non-
reporting probation, if Martinez completes the first three years without
incident. Martinez was also ordered to pay $2,163 in restitution.
Martinez, through counsel, filed a timely Notice of Appeal and a court-
ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on
appeal. Martinez subsequently filed a Supplemental Concise Statement.
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Attorney Heilman filed a Statement of Intent to File an Anders/McClendon2
Brief seeking to withdraw as counsel.
In the Anders Brief, the following questions are presented for our
review:
I. Were [Martinez’s] guilty pleas in this matter made knowingly
and voluntarily?
II. Was [Martinez’s] total sentence of 4 years [of] probation
imposed by the lower court illegal or excessive?
Anders Brief at 3. Martinez did not file a separate pro se brief, nor did he
retain alternate counsel for this appeal.
We must first determine whether Attorney Heilman has complied with
the dictates of Anders in petitioning to withdraw from representation. See
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en
banc) (stating that “[w]hen faced with a purported Anders brief, this Court
may not review the merits of any possible underlying issues without first
examining counsel’s request to withdraw.”) (citation omitted). Pursuant to
Anders, when an attorney believes that an appeal is frivolous and wishes to
withdraw as counsel, he or she must
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the recording and
interviewing the defendant, counsel has determined the appeal
would be frivolous, (2) file a brief referring to any issues in the
record of arguable merit, and (3) furnish a copy of the brief to
defendant and advise him of his right to retain new counsel or to
raise any additional points that he deems worthy of the court’s
2
Commonwealth v. McClendon, 424 A.2d 1185 (Pa. 1981).
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attention. The determination of whether the appeal is frivolous
remains with the [appellate] court.
Commonwealth v. Burwell, 42 A.2d 1077, 1083 (Pa. Super. 2012)
(citations omitted).
Additionally, the Pennsylvania Supreme Court has determined that a
proper Anders brief 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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
Here, Attorney Heilman has complied with the requirements set forth
in Anders by indicating that she has conscientiously examined the record
and determined that an appeal would be frivolous. Further, Attorney
Heilman provided a letter to Martinez, informing him of Attorney Heilman’s
intention to withdraw and advising Martinez of his rights to retain counsel,
proceed pro se, and file additional claims. Finally, Attorney Heilman’s
Anders Brief meets the standards set forth in Santiago. Attorney Heilman
provided a factual summary of Martinez’s case, with support for Attorney
Heilman’s conclusions that Martinez’s guilty pleas were made knowingly and
voluntarily, and that the trial court did not err or abuse its discretion by
imposing Martinez’s sentence, rendering his appeal wholly frivolous.
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Because Attorney Heilman has complied with the procedural requirements
for withdrawing from representation, we will independently review the record
to determine whether Martinez’s appeal is, in fact, wholly frivolous.
In his first claim, Martinez challenges the validity of his guilty pleas.
Anders Brief at 11-14.
Our law is clear that to be valid, a guilty plea must be
knowingly, voluntarily and intelligently entered. There is no
absolute right to withdraw a guilty plea, and the decision as to
whether to allow a defendant to do so is a matter within the
sound discretion of the trial court. To withdraw a plea after
sentencing, a defendant must make a showing of prejudice
amounting to “manifest injustice.” A plea rises to the level of
manifest injustice when it was entered into involuntarily,
unknowingly, or unintelligently. A defendant’s disappointment in
the sentence imposed does not constitute “manifest injustice.”
Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa. Super. 2008)
(citation omitted).
“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. Failure to employ either
measure results in waiver.” Commonwealth v. Lincoln, 72 A.3d 606, 609-
10 (Pa. Super. 2013) (citations omitted); see also Pa.R.Crim.P. 1007
(stating that any objections related to the validity of a plea agreement must
be raised in a post-sentence motion).
Here, Martinez did not object during his plea colloquies or file a motion
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to withdraw his pleas, and therefore, this claim is waived.3 See Lincoln, 72
A.3d at 611. Thus, a challenge to the voluntariness of Martinez’s guilty plea
would be wholly frivolous.
In his second claim, Martinez contends that the trial court abused its
discretion in imposing an excessive sentence. Anders Brief at 14-15.
Martinez also claims that his sentence is illegal. Id.Initially, “[u]pon entry of a guilty plea, a defendant generally waives
all defects and defenses except those concerning the validity of the plea, the
jurisdiction of the trial court, and the legality of the sentence imposed.”
Commonwealth v. Boyd, 835 A.2d 812, 816 (Pa. Super. 2003). Martinez
3
Even if we could consider the merits of this claim, we would conclude that
Martinez entered into his negotiated plea knowingly, intelligently, and
voluntarily. See generally Commonwealth v. Pollard, 832 A.2d 517, 524
(Pa. Super. 2003) (stating that “[t]he desire of an accused to benefit from a
plea bargain is a strong indicator of the voluntariness of his plea.”). Here,
Martinez completed three Written Guilty Plea Colloquy forms, which advised
him that the judge is not bound the by terms of the plea agreement, as well
as his right to a jury trial and the presumption of innocence. Additionally,
during the January 30, 2015 guilty plea hearing, and the April 24, 2015
sentencing hearing, the trial court conducted oral colloquies on the record,
during which Martinez acknowledged that he reviewed the Written Guilty
Plea Colloquy forms with his attorney; he understood the nature of charges
against him; he understood the maximum sentences he could receive for
each charge; and he agreed to the facts underlying each charge. See N.T.,
1/30/15, at 4-6; N.T., 4/24/15, at 9-17; see also Commonwealth v.
Morrison, 878 A.2d 102, 108 (Pa. Super. 2005) (en banc) (stating that a
written colloquy may be made part of the record of plea proceedings, if it is
supplemented by some oral examination on the record) (citing Pa.R.Crim.P.
590, cmt.); Commonwealth v. Rush, 909 A.2d 805, 808 (Pa. Super. 2006)
(stating that “[w]here the record clearly demonstrates that a guilty plea
colloquy was conducted, during which it became evident that the defendant
understood the nature of the charges against him, the voluntariness of the
plea is established.”) (citation omitted).
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challenges, in part, the discretionary aspects of his sentence. “One who
pleads guilty and receives a negotiated sentence may not then seek
discretionary review of that sentence.” Commonwealth v. O’Malley, 957
A.2d 1265, 1267 (Pa. Super. 2008). Therefore, to the extent that Martinez
challenges the discretionary aspects of his sentence, his claim is waived.
See id. Moreover, even if Martinez had the right to seek a discretionary
appeal in this case, he failed to object to his sentence during sentencing or
file a post-sentence motion. Thus, he preserved no issues for discretionary
review. See Commonwealth v. Malovich, 903 A.2d 1247, 1251 (Pa.
Super. 2006) (stating that in order to preserve a challenge to the
discretionary aspects of sentencing, an appellant must raise the issue at
sentencing or in a post-sentence motion). Accordingly, any challenge to the
discretionary aspects of Martinez’s sentence would be wholly frivolous.
However, a challenge to the legality of a sentence, even where
imposed pursuant to a negotiated plea bargain, cannot be waived. See
Commonwealth v. Langston, 904 A.2d 917, 921 n.2 (Pa. Super. 2006);
see also Boyd, 835 A.2d at 816. “If no statutory authorization exists for a
particular sentence, that sentence is illegal and subject to correction.”
Commonwealth v. Rivera, 95 A.3d 913, 915 (Pa. Super. 2014) (citation
omitted). “Issues relating to the legality of a sentence are questions of law.
Our standard of review over such questions is de novo and our scope of
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review is plenary.” Commonwealth v. Wolfe, 106 A.3d 800, 802 (Pa.
Super. 2014) (citations, brackets and ellipses omitted).
Here, Martinez was sentenced to a total of four years of probation.
Martinez was subject to the following maximum prison terms for his
charges: five years for stalking, a misdemeanor of the first degree; two
years for criminal mischief, a misdemeanor of the second degree; and six
months for contempt for violation of order or agreement, as defined by 23
Pa.C.S.A. § 6114(b)(2). See 18 Pa.C.S.A. § 106(b). Martinez received two
years of probation for criminal mischief, one year of probation for stalking,
and six months of probation for each count of contempt for violation of order
or agreement. Because Martinez was sentenced to a total term of probation
that does not exceed the applicable statutory maximum prison terms, his
sentence is legal. See 42 Pa.C.S.A. § 9754(a) (providing that “[i]n imposing
an order of probation the court shall specify at the time of sentencing the
length of any term during which the defendant is to be supervised, which
term may not exceed the maximum term for which the defendant could be
confined”); see also Commonwealth v. Crump, 995 A.2d 1280, 1284 (Pa.
Super. 2010) (stating that “a defendant cannot be given a term of probation
which exceeds the statutory maximum.”).
Further, our independent examination of the record indicates that
there are no other claims of arguable merit. See Anders, 386 U.S. at 744-
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45. Accordingly, we conclude that Martinez’s appeal is wholly frivolous, and
Attorney Heilman is entitled to withdraw as counsel.
Petition to Withdraw as counsel granted; judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/20/2017
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