Com. v. Guzman, F.

J-S12022-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FAUSTO GUZMAN :
:
Appellant : No. 1110 MDA 2022
Appeal from the Judgment of Sentence Entered July 13, 2022
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0003548-2021
BEFORE: KUNSELMAN, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY McCAFFERY, J.: FILED: JUNE 5, 2023
Fausto Guzman (Appellant) appeals from the judgment of sentence
imposed in the Berks County Court of Common Pleas following his negotiated
guilty plea to one count each of aggravated assault and flight to avoid
apprehension.1 Contemporaneous with this appeal, Appellant’s counsel, Emily
Washburn, Esquire, has filed a petition to withdraw from representation and
an Anders brief. See Anders v. California, 386 U.S. 738 (1967);
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). The Anders brief
presents two claims, challenging the voluntariness of Appellant’s plea and
discretionary aspects of his sentence. For the reasons below, we affirm the
judgment of sentence and grant counsel’s petition to withdraw.
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* Retired Senior Judge assigned to the Superior Court.
1 See 18 Pa.C.S. §§ 2702(a)(1), 5126(a).
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We discern the relevant facts underlying Appellant’s arrest from the
affidavit of probable cause. Just before 2:00 p.m. on August 18, 2021,
Reading police were dispatched to a shooting near the campus of Reading
Area Community College. See Affidavit of Probable Cause, 10/25/21, at 1
(unpaginated). The victim sustained four gunshot wounds but survived. See
id. The incident was observed by an eyewitness and captured on surveillance
video. See id. The victim was the driver of a van, that was stopped in the
right lane. Id. When a small sedan pulled up next to the van, the victim
exited the van and approached the driver of the sedan, later identified as
Appellant. Appellant opened his car door, and the victim “motion[ed] to [him]
with his hand[,]” before taking a step closer. Id. At that time, Appellant shot
at the victim, and then fled the scene. Id. It was later determined that
Appellant was the owner of the sedan, and had a valid permit to carry a
concealed firearm. Id. at 2. He was apprehended in New York, after
purchasing a one-way ticket to the Dominican Republic. Id. See also N.T.,
7/13/22, at 12.
Appellant was subsequently charged with attempted murder,
aggravated assault (two counts), flight to avoid apprehension, possessing an
instrument of crime, recklessly endangering another person, and simple
assault (two counts).2 On July 13, 2022, represented by privately retained
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2 See 18 Pa.C.S. §§ 901/2502, 2702(a)(4), 907(b), 2705, and 2701(a)(1),
(a)(2), respectively.
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counsel, Allan Sodomsky, Esquire, Appellant entered a negotiated guilty plea3
to one count each of aggravated assault and flight to avoid prosecution, in
exchange for an aggregate sentence of 4½ to 10 years’ imprisonment.4 See
N.T. at 13; Statement Accompanying Appellant’s Request to Enter a Guilty
Plea, 7/13/22, at 1.
Appellant filed a pro se notice of appeal on August 5, 2022, and, on
August 11th the trial court directed him to file a Pa.R.A.P. 1925(b) concise
statement of matters complained of on appeal. On August 19, 2022, Attorney
Sodomsky filed a motion to withdraw as counsel, noting his fee agreement
with Appellant did not include the filing of an appeal. See Motion to Withdraw
as Counsel, 8/19/22, at 1 (unpaginated). The court granted counsel’s petition
to withdraw on August 25th. See Order, 8/25/22.
On September 8, 2022, this Court issued a per curiam order, directing
the trial court to conduct a Grazier5 hearing to ascertain if Appellant wished
to proceed with counsel or pro se. See Order, 9/8/22. The trial court
complied, and determined Appellant wished to be represented by counsel.
See Letter from Trial Court to Superior Court Deputy Prothonotary, 10/6/22.
____________________________________________
3The trial court provided Appellant with a Spanish interpreter during the plea
and sentencing hearing. See N.T. at 2.
4The court imposed a sentence of 4 ½ to 10 years’ imprisonment on the count
of aggravated assault, and a concurrent term of 9 to 24 months’ imprisonment
on the charge of flight to avoid prosecution. See N.T. at 13. In addition, the
Commonwealth dismissed the remaining charges.
5 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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Thereafter, on October 31, 2022, Berks County Assistant Public Defender
Attorney Washburn entered her appearance and requested permission to file
a Pa.R.A.P. 1925(b) concise statement nunc pro tunc, which the trial court
granted. See Motion to File Concise Statement of Errors Complained of on
Appeal Nunc Pro Tunc, 11/3/22, at 2 (unpaginated); Order, 11/10/22. In lieu
of a concise statement, on November 22nd, Attorney Washburn filed a
statement indicating her intent to file an Anders brief. See Statement of
Intent to File and Anders/McClendon Brief, 11/22/22.
When, as here, 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 deems 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
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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 the present case, 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. 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 retained counsel or pro se, and to raise any additional
points for this Court’s attention. See Attorney Washburn’s letter to Appellant,
2/2/23.6 Appellant has not filed a response. Therefore, we proceed to
examine the issues identified in the Anders brief, and then 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) (quotation omitted). If we agree with counsel’s
assessment, “[we] may grant counsel’s request to withdraw and dismiss the
appeal[.]” Id. (citation omitted).
The Anders brief identifies two claims for our review:
1) Whether Appellant can support the standard of manifest
injustice required to withdraw his negotiated guilty plea[?]
2) Whether Appellant, having entered into a negotiated guilty
plea, can challenge the discretionary aspects of his sentence[?]
Anders Brief at 5.
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6 The letter was provided in both English and Spanish.
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Appellant’s challenge to the voluntariness of his guilty plea fails for two
reasons. First, “[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, 609–10 (Pa. Super. 2013) (citation
omitted). Appellant did not file a post-sentence motion, nor did he object to
the entry of or the voluntariness of his plea at the plea hearing. See
generally N.T. at 2-15. Accordingly, he has waived this issue for appellate
review. See Lincoln, 72 A.3d at 611.
Second, even if the claim were not waived, we would conclude that
Appellant is entitled to no relief.
[A] request to withdraw a guilty plea after sentencing is subject
to higher scrutiny [than a pre-sentence request] since courts
strive to discourage [the] entry of guilty pleas as sentence-testing
devices. Therefore, in order to withdraw a guilty plea after the
imposition of sentence, a defendant must make a showing of
prejudice which resulted in a manifest injustice. A defendant
meets this burden only if he can demonstrate that his guilty plea
was entered involuntarily, unknowingly, or unintelligently.
Commonwealth v. Culsoir, 209 A.3d 433, 437 (Pa. Super. 2019) (citations
& quotation marks omitted). Moreover, we presume “a defendant who
entered a guilty plea was aware of what he was doing, and the defendant
bears the burden of proving otherwise.” Commonwealth v. Hart, 174 A.3d
660, 665 (Pa. Super. 2017) (citation omitted).
In the present case, Appellant completed both a written and oral plea
colloquy, which demonstrated his understanding of the proceedings, and the
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voluntariness of his decision to enter a guilty plea.7 See Statement
Accompanying Appellant’s Request to Enter a Guilty Plea at 1-4; N.T. at 2-11.
Moreover, during the plea hearing, Appellant affirmed that he understood the
following: (1) he was charged with aggravated assault and flight to avoid
apprehension; (2) he was presumed innocent until proven guilty beyond a
reasonable doubt; (3) he had the right to a jury trial; (4) he had the right to
file pretrial motions, that he was giving up by pleading guilty; (5) his right to
challenge his plea and sentence would be limited; (6) he was satisfied with
the representation of his attorney; (7) the trial court was not bound to impose
the negotiated sentence; (8) the maximum sentences he could receive were
20 years’ incarceration for aggravated assault and 7 years for flight; and (9)
no one forced him to plead guilty. See N.T. at 2-10. See also Pa.R.Crim.P.
590, Comment. Although Appellant appeared not to fully comprehend a few
of the questions, either the trial court or defense counsel took the time to
explain the questions to him in more detail. See N.T. at 4-7, 10-11. Further,
Appellant admitted to the following facts underlying his plea:
[O]n or about August 18 of 2021, . . . near the Reading Area
Community College . . . [he] did shoot the victim with a firearm
and . . . cause bodily injury to him . . . in circumstances
manifesting an indifference to the value of human life. And that
afterwards, [he] did travel outside the Commonwealth with the
intent to avoid apprehension and punishment in this case. . . .
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7 We emphasize that the written colloquy is signed by a Spanish interpreter
who attested that they interpreted the question contained therein from English
to Spanish, and that the answers in the colloquy were Appellant’s. See
Statement Accompanying Appellant’s Request to Enter a Guilty Plea at 4.
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Id. at 8. Thus, the certified record demonstrates Appellant’s plea was entered
knowingly and voluntarily.
The second issue identified in the Anders brief challenges the
discretionary aspects of Appellant’s sentence. It is well established that such
a challenge does not entitle an appellant to “review as of right.”
Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super. 2015) (en
banc) (citation omitted). Rather,
[b]efore this Court can address such a discretionary challenge, an
appellant must comply with the following requirements:
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying
a four-part test: (1) whether appellant has filed a timely
notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether
the issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence, see Pa.R.Crim.P.
[720]; (3) whether appellant’s brief has a fatal defect,
Pa.R.A.P. 2119(f); and (4) whether there is a substantial
question that the sentence appealed from is not appropriate
under the Sentencing Code.
Id. (citation omitted).
Here, because Appellant did not file a post-sentence motion challenging
the discretionary aspects of his sentence or preserve any claim at the
sentencing hearing, he has failed to properly invoke this Court’s jurisdiction,
and is entitled to no relief. See Caldwell, 117 A.3d at 768. Moreover, the
sentence imposed was a negotiated term of Appellant’s plea agreement, and
is, therefore, not subject to discretionary review. This Court has observed:
[When] 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
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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).
Accordingly, the second issue presented in the Anders brief is also meritless.8
Consequently, we agree with Attorney Washburn’s determination that
the two issues presented in the Anders brief are meritless, and our
independent review of the record revealed no non-frivolous issues to be raised
on appeal. See Yorgey, 188 A.3d at 1196. Therefore, we affirm the
judgment of sentence and grant Attorney Washburn’s petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/05/2023
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8 We note, too, that the negotiated sentences imposed fell within the standard
range of the sentencing guidelines. See N.T. at 10.
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