J-S05001-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

SHAWN L. BURROWS

                            Appellant                 No. 986 MDA 2016


          Appeal from the Judgment of Sentence Entered June 2, 2016
              In the Court of Common Pleas of Schuylkill County
             Criminal Division at No(s): CP-54-CR-0002141-2015


BEFORE: BENDER, P.J.E., PANELLA, J., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                    FILED FEBRUARY 09, 2017

        Appellant, Shawn L. Burrows, appeals from the judgment of sentence

of an aggregate term of 7 to 14 years’ incarceration, imposed after he pled

guilty to various offenses, including arson.     Appellant seeks to raise one

issue challenging the voluntariness of his guilty plea.      Additionally, his

counsel, Julie A. Werdt, Esq., seeks to withdraw her representation of

Appellant pursuant to Anders v. California, 386 U.S. 738 (1967), and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).              After careful

review, we affirm Appellant’s judgment of sentence and grant counsel’s

petition to withdraw.



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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         A detailed recitation of the facts underlying Appellant’s convictions is

unnecessary to our disposition of the issue he raises on appeal. We need

only note that his convictions stemmed from his setting fire to bed sheets

while he was an inmate at the State Correctional Institution at Mahanoy.

See Trial Court Opinion, 8/9/16, at 1. On June 2, 2016, Appellant entered a

guilty plea to arson, 18 Pa.C.S. § 3301(a)(1)(ii); institutional vandalism, 18

Pa.C.S. § 3307(a)(3); disorderly conduct, 18 Pa.C.S. § 5503(a)(4);

dangerous burning, 18 Pa.C.S. § 3301(d)(1); and criminal mischief, 18

Pa.C.S. § 3304(a)(5). That same day, the trial court sentenced Appellant to

an aggregate term of 7 to 14 years’ incarceration. The court imposed that

sentence to run concurrently with the sentence Appellant was serving at the

time he committed his offenses. Pertinent to the issue Appellant raises on

appeal, at the conclusion of the plea/sentencing proceeding, Appellant

indicated to the court that he would be filing an appeal and, when asked why

he planned to do so, Appellant replied (verbatim), “I’m just here thinking,

and I just pled guilty to time I would have got if I would have went to trial.”

N.T. Plea/Sentencing, 6/2/16, at 9-10.

         Appellant did not file a post-sentence motion seeking to withdraw his

plea. Instead, he filed a timely notice of appeal, and he also timely complied

with the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal. Therein, Appellant presented the following

issue:




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     1) The guilty plea entered by Appellant … was not knowing,
     understanding, intelligent and voluntary in that Appellant stated
     at the conclusion of plea court that he intended to file an appeal
     because the sentence he received would have been the same if
     he had proceeded to trial and been found guilty.

Pa.R.A.P. 1925(b) Statement, 7/7/16, at 1. The trial court filed an opinion

responding to this issue on August 9, 2016.

     On November 10, 2016, Attorney Werdt filed a petition to withdraw

from representing Appellant. She has also filed an Anders brief, asserting

that Appellant’s issue is frivolous, and that he has no other, non-frivolous

claims he could assert on appeal. Accordingly,

     [t]his Court must first pass upon counsel's petition to withdraw
     before reviewing the merits of the underlying issues presented
     by [the appellant]. Commonwealth v. Goodwin, 928 A.2d
287, 290 (Pa. Super. 2007) (en banc).

     Prior to withdrawing as counsel on a direct appeal under
     Anders, counsel must file a brief that meets the requirements
     established by our Supreme Court in Santiago. The 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.

     Santiago, 978 A.2d at 361. Counsel also must provide a copy of
     the Anders brief to his client. Attending the brief must be a
     letter that advises the client of his right to: “(1) retain new
     counsel to pursue the appeal; (2) proceed pro se on appeal; or
     (3) raise any points that the appellant deems worthy of the


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      court[’]s attention in addition to the points raised by counsel in
      the Anders brief.” Commonwealth v. Nischan, 928 A.2d 349,
      353 (Pa. Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40
      (2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa. Super. 2014).

After determining that counsel has satisfied these technical requirements of

Anders and Santiago, this Court must then “conduct an independent

review of the record to discern if there are any additional, non-frivolous

issues overlooked by counsel.”     Commonwealth v. Flowers, 113 A.3d
1246, 1250 (Pa. Super. 2015) (citations and footnote omitted).

      In this case, Attorney Werdt’s Anders brief complies with the above-

stated requirements.    Namely, she includes a summary of the relevant

factual and procedural history, she refers to portions of the record that could

arguably support Appellant’s claim, and she sets forth her conclusion that

Appellant’s appeal is frivolous. She also explains her reasons for reaching

that determination, and supports her rationale with citations to the record

and pertinent legal authority. Attorney Werdt also states in her petition to

withdraw that she has supplied Appellant with a copy of her Anders brief,

and she attaches a letter directed to Appellant in which she informs him of

the rights enumerated in Nischan. Accordingly, counsel has complied with

the technical requirements for withdrawal.       We will now independently

review the record to determine if Appellant’s issue is frivolous, and to

ascertain if there are any other, non-frivolous issues he could pursue on

appeal.



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      Preliminarily, we must address whether Appellant has waived his

challenge to the voluntariness of his guilty plea, based on the comments he

made at the conclusion of his plea/sentencing hearing, by not raising this

claim before the trial court. Appellant did not seek to withdraw his plea on

this basis at the time of the plea proceeding, nor in a post-sentence motion.

However, our review of the record demonstrates that Appellant was never

informed of his right to file a post-sentence motion, or the time within which

to   do   so,   as   required   by   Pa.R.Crim.P.    704(C)(3).   Under     these

circumstances, we decline to conclude that Appellant has waived his

challenge to the voluntariness of his guilty plea.

      Nevertheless, having carefully reviewed the record in this case, we

agree with Attorney Werdt that Appellant’s post-sentence challenge to his

plea is frivolous. This Court has declared:

      [P]ost-sentence motions for withdrawal are subject to higher
      scrutiny since courts strive to discourage entry of guilty pleas as
      sentence-testing devices. A defendant must demonstrate that
      manifest injustice would result if the court were to deny his post-
      sentence motion to withdraw a guilty plea. Manifest injustice
      may be established if the plea was not tendered knowingly,
      intelligently, and voluntarily. In determining whether a plea is
      valid, the court must examine the totality of circumstances
      surrounding the plea. A deficient plea does not per se establish
      prejudice on the order of manifest injustice.

Commonwealth v. Broaden, 980 A.2d 124, 129 (Pa. Super. 2009).

      In this case, Appellant claims that his plea was involuntary because he

stated, at the close of the plea/sentencing hearing, that he got the same

sentence he would have received had he proceeded to trial.           See N.T.


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Plea/Sentencing at 10 (Appellant’s stating, “I just pled guilty to time I would

have got if I would have went to trial”). This comment does not convey that

Appellant’s plea was involuntary; rather, it evinces that Appellant was using

his guilty plea as a sentence testing device.        Consequently, Appellant’s

remark does not demonstrate manifest injustice that requires the withdrawal

of his plea. See Commonwealth v. Muhammad, 794 A.2d 378, 383 (Pa.

Super. 2002) (stating that, “disappointment by a defendant in the sentence

actually imposed does not represent manifest injustice” warranting the post-

sentence withdrawal of a guilty plea) (citation omitted).

       This is especially true where the record demonstrates that Appellant

entered his plea voluntarily, knowingly, and intelligently.     This Court has

declared that “[a] valid plea colloquy must delve into six areas: 1) the

nature of the charges, 2) the factual basis for the plea, 3) the right to a jury

trial, 4) the presumption of innocence, 5) the sentencing ranges, and 6) the

plea   court's   power   to   deviate   from   any   recommended     sentence.”

Commonwealth v. Morrison, 878 A.2d 102, 107 (Pa. Super. 2005) (citing,

inter alia, Comment to Pa.R.Crim.P. 590(A)(2)).

       Here, Appellant was informed of the nature of the charges and the

facts underlying each offense.    N.T. Plea/Sentencing, 6/2/16, at 5-6.     The

court also informed him of his “absolute right to go to trial on these

charges[,]” his “right to a trial by jury[,]” and that “the Commonwealth

would have to prove [him] guilty beyond a reasonable doubt.”          Id. at 3.

Appellant stated that he understood. Id. at 4.

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      The court also asked Appellant if he had completed the comprehensive

written plea colloquy with the assistance of his attorney, and he stated that

he had. Id. at 3. In that document, Appellant was notified that if he chose

to go to trial, he would be “presumed to be innocent unless and until [he

was] proven guilty beyond a reasonable doubt[.]”      Written Plea Colloquy,

6/2/16, at 2 ¶ 18.    The written colloquy also informed Appellant of the

sentencing guideline ranges applicable to his offenses, and of the maximum

sentence and fine he faced for each charge. Id. at “Schedule A.” Appellant

indicated that he “fully underst[ood] the maximum permissible sentences

and/or fines that [could] be imposed for the crime/crimes charged as set

forth in Schedule ‘A.’”   See id. at 2 ¶ 13.   Additionally, the written plea

colloquy informed Appellant that the trial court was not bound by the plea

agreement. Id. at 2 ¶ 14.

      In addition to inquiring into the six required areas, the court also

asked Appellant if he was under the influence of any “drugs, alcohol or

medication” that would impair his ability to understand what he was doing,

or if he had any mental illness that would impact his ability to enter a

knowing, intelligent, and voluntary plea. Id. at 2-3. Appellant responded

“[n]o” to both questions. Id. at 2-3. Appellant also declared that he was

pleading guilty of his own free will, that no one had forced him to enter a

plea, and that he was satisfied with the representation of his attorney. Id.

at 4, 6-7.




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     Based on this record, we conclude that Appellant’s plea was knowing,

intelligent, and voluntary.   The fact that Appellant is unhappy with the

sentence he received does not constitute a manifest injustice warranting

Appellant’s withdrawal of that plea.   Accordingly, we agree with Attorney

Werdt that the issue Appellant seeks to raise on appeal is frivolous.

Moreover, our independent review of the record does not reveal any non-

frivolous issues that Appellant could assert. Therefore, we grant counsel’s

petition to withdraw and affirm Appellant’s judgment of sentence.

     Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/9/2017




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