J-S30036-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

RUBEN GONZALEZ

                            Appellant                   No. 1077 EDA 2015


            Appeal from the Judgment of Sentence March 10, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0001498-2013


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                                 FILED MAY 10, 2016

        Appellant Ruben Gonzalez appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas following his open

guilty plea to aggravated assault and conspiracy to commit aggravated

assault.1 We affirm and grant counsel’s petition to withdraw.

        At his guilty plea hearing, Appellant stipulated to the following facts:

           [O]n October 24[,] 2012[,] the complaining witness,
           Christopher Corisdeo [(“Victim”),] was high on PCP and
           walking down the [1900] block of East Dauphin Street….
           [Victim] was flailing his arms and he [struck] one of the
           codefendants in the face. That codefendant is Myleidi
           Rodriguez. Ms. Rodriquez at the time was the girlfriend of
           [Appellant]….



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1
    18 Pa.C.S. §§ 2702(a) and 903(c), respectively.
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            As a result of witnessing that, [Appellant] along with
            several codefendants struck the victim.      [V]ictim was
            knocked to the ground immediately.        The defendants,
            Brandon Baez, Melvin Soto, Frank Justiniano, Aaron Webb,
            and Alex Webb proceeded to kick, punch, and stomp
            [Victim] in his face. [Victim] was dragged to an empty lot
            at the corner of Dauphin and Emerald Streets where the
            assault continued. Responding officers found [Victim’s]
            body in a pool of blood. One of his eyes had fallen out of
            the socket. One of the codefendants, Mr. Frank Justiniano,
            was observed by witnesses and several of the
            codefendants gave statements saying that Mr. Justiniano
            picked up a cinder block at the end of the assault and
            dropped the cinder block on [Victim’s] head.

            Every bone in [Victim’s] face was fractured. He had to
            have his entire face reconstructed with titanium plate.
            [H]e had over 18 hours [of] surgery and now two years
            later he still suffers serious side effects including seizures,
            …serious     cognizant     delays,   memory      issues,   and
            depression.

N.T., Guilty Plea, 12/02/2014, at 7-8.

      On January 11, 2013, a grand jury indicted Appellant with attempted

murder, aggravated assault, robbery, possession of an instrument of crime,

and conspiracy to commit those crimes.          On December 2, 2014, Appellant

completed a written guilty plea, and the court conducted an oral guilty plea

colloquy.      In exchange for pleading guilty to aggravated assault and

conspiracy to commit aggravated assault, the other charges against

Appellant were nolle prossed. Appellant indicated on his written guilty plea

that he was aware he could go to prison for twenty (20) to forty (40) years.

      On March 10, 2015, the court sentenced Appellant to six (6) to twenty

(20) years’ incarceration for aggravated assault and three (3) to twenty (20)


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years’ incarceration for conspiracy.             The court imposed the sentences

consecutively, resulting in an aggregate sentence of nine (9) to forty (40)

years’ incarceration.

       On March 17, 2015, Appellant filed a motion to withdraw his guilty

plea and for reconsideration of sentence, claiming he did not know his

sentences could be imposed consecutively.             On April 13, 2015, before the

court had ruled on this motion, Appellant filed a motion to have his appellate

rights re-instated nunc pro tunc, because he believed he had missed the

deadline to file a timely appeal.              That same day, the court reinstated

Appellant’s appellate rights nunc pro tunc, and Appellant filed a timely notice

of appeal on April 14, 2015.2 On April 15, 2015, the court ordered Appellant

to file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b), and he timely complied on April 20, 2015.

       On October 26, 2015, Appellant’s counsel filed a petition for leave to

withdraw along with an Anders brief.

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2
  Neither the docket nor the certified record reflects that the court ruled on
Appellant’s motion to withdraw his guilty plea and for reconsideration of
sentence. In its opinion, however, the trial court states: “The motions were
denied.” Trial Court Pa.R.A.P. 1925(a) Opinion, filed July 13, 2015, at 1. If
the trial court did not rule on Appellant’s post sentence motion, it would
have been denied by operation of law July 15, 2015. See Pa.R.Crim.P.
720(B)(3)(a). Because the trial court indicated that it denied Appellant’s
motion and because it reinstated Appellant’s appellate rights nunc pro tunc,
we deem this appeal properly before us, despite the ambiguous procedural
history.




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      As a preliminary matter, appellate counsel seeks to withdraw his

representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.

1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Santiago, 978 A.2d

349 (Pa.2009).    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 must also provide a copy of the

Anders brief to the appellant, together with a letter that advises the

appellant of his or her 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 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, 936 A.2d 40 (Pa.2007).         Substantial

compliance with these requirements is sufficient.        Commonwealth v.

Wrecks, 934 A.2d 1287, 1290 (Pa.Super.2007). “After establishing that the

antecedent requirements have been met, this Court must then make an

independent evaluation of the record to determine whether the appeal is, in




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fact, wholly frivolous.”    Commonwealth v. Palm, 903 A.2d 1244, 1246

(Pa.Super.2006).
     Here, counsel filed a petition for leave to withdraw as counsel along

with an Anders brief and a letter advising Appellant of his right to obtain

new counsel or proceed pro se to raise any points he deems worthy of the

court’s attention in addition to the issues raised in the Anders brief. The

petition states counsel determined there were no non-frivolous issues to be

raised on appeal, notified Appellant of the withdrawal request, supplied him

with a copy of the Anders brief, and sent him a letter explaining his right to

proceed pro se or with new, privately-retained counsel to raise any

additional points or arguments that Appellant believed had merit.          In the

Anders brief, counsel provides a summary of the facts and procedural

history of the case with citations to the record, refers to evidence of record

that might arguably support the issue raised on appeal, provides citations to

relevant case law, and states his conclusion that the appeal is wholly

frivolous and his reasons therefor.        See Anders Brief, at 7-9, 13-19.

Accordingly,   counsel     has   substantially   complied   with   the   technical

requirements of Anders and Santiago.

      As Appellant filed neither a pro se brief nor a counseled brief with new,

privately-retained counsel, we review this appeal based on the issues raised

in the Anders brief:

         WHETHER [APPELLANT’S] GUILTY PLEA WAS A KNOWING
         AND VOLUNTARY PLEA[?]

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           WHETHER THE TRIAL COURT SHOULD HAVE PERMITTED
           [APPELLANT] TO WITHDRAW HIS GUILTY PLEA WHERE
           IMMEDIATELY AFTER IMPOSITION OF SENTENCE AT THE
           BAR OF THE COURT [APPELLANT] ORALLY REQUESTED
           WITHDRAWAL[?]

Anders Brief at 6. 3

        Appellant claims the trial court abused its discretion by denying his

motion to withdraw his guilty plea, after imposition of sentence, because he

did not enter into it knowingly and voluntarily. We disagree.

        This Court’s scope of review of a trial court’s ruling on a motion to

withdraw a plea is to review the record of the plea and any post-sentence

proceeding.      See Commonwealth v. Moser, 921 A.2d 526, 528-530

(Pa.Super.2007). Our standard of review is whether the trial court abused

its discretion. Id. at 530.

        “[T]he law does not require that [the defendant] be pleased with the

outcome of his decision to enter a plea of guilty: All that is required is that

[his] decision to plead guilty be knowingly, voluntarily, and intelligently

made.”      Commonwealth v. Willis, 68 A.3d 997, 1002 (Pa.Super.2013)

____________________________________________


3
    Appellant also listed the following issue in the Anders Brief:

           WHETHER THERE IS ANYTHING IN THE RECORD THAT
           MIGHT ARGUABLY SUPPORT THE APPEAL THAT OBVIATES
           A CONCLUSION THAT THE APPEAL IS FRIVOLOUS[?]

Anders Brief at 6. This issue reflects counsel’s request to withdraw, which
we grant herein after a discussion of Appellant’s other issues, infra.



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(quoting      Commonwealth      v.   Anderson,   995    A.2d   1184,     1192

(Pa.Super.2010), appeal denied, 9 A.3d 626 (Pa.2010) (alterations in

original)).     A guilty plea colloquy must “affirmatively demonstrate the

defendant understood what the plea connoted and its consequences.”        Id.

(quoting Commonwealth v. Lewis, 708 A.2d 497, 501 (Pa.Super.1998)).

No absolute right to withdraw a plea exists. Commonwealth v. Flick, 802

A.2d 620, 623 (Pa.Super.2002). After a defendant enters a guilty plea, “it is

presumed that he was aware of what he was doing, and the burden of

proving involuntariness is upon him.” Commonwealth v. Bedell, 954 A.2d

1209, 1212 (Pa.Super.2008).

      The standard for withdrawal of a guilty plea after the imposition of

sentence is much higher than the standard applicable to a pre-sentence

motion to withdraw.       Commonwealth v. Byrne, 833 A.2d 729, 737

(Pa.Super.2003).     A defendant must demonstrate that manifest injustice

would result if the court were to deny his post-sentence motion to withdraw

the plea.     Id. “[D]isappointment by a defendant in the sentence actually

imposed does not represent manifest injustice.” Id. “Manifest injustice may

be established if the plea was not tendered knowingly, intelligently, and

voluntarily.”      Commonwealth      v.    Hodges,   789   A.2d   764,    765

(Pa.Super.2002); see also Pa.R.Crim.P. 590(a)(3). “Determining whether a

defendant understood the connotations of his plea and its consequences




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requires an examination of the totality of the circumstances surrounding the

plea.” Commonwealth v. Moser, 921 A.2d 526, 529 (Pa.Super.2007).

      “A valid plea colloquy must delve into six areas: 1) the nature of the

charges, 2) the factual basis of 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), appeal denied, 887 A.2d

1241 (Pa.2005); Comment to Pa.R.Crim.P. 590(A)(2).                A written plea

colloquy that is read, completed and signed by the defendant and made part

of   the   record   may   serve   as   the   defendant’s   plea   colloquy   when

supplemented by an oral, on-the-record examination. Morrison, 878 A.2d

at 108 (citing Comment to Pa.R.Crim.P. 590). Even if “there is an omission

or defect in the guilty plea colloquy, a plea of guilty will not be deemed

invalid if the circumstances surrounding the entry of the plea disclose that

the defendant had a full understanding of the nature and consequences of

his plea and that he knowingly and voluntarily decided to enter the plea.”

Fluharty, 632 A.2d at 315. Further, “where 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.” Moser, 921 A.2d at 529.

      Here, in denying Appellant’s petition to withdraw his guilty plea, the

trial court reasoned:


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          Appellant both signed the colloquy form, and later testified
          in court that he understood the terms of his plea. N.T.,
          12/02/2014, at 2.      Appellant verbally verified that he
          understood the rights he was giving up. Id. at 3. He
          stated that he understood he was submitting an “open
          plea”[4] and that sentencing would be at the discretion of
          the judge following presentence and mental health
          evaluations. Id. at 2. He stated in the colloquy form and
          before this court that he understood that the sentence
          could be up to forty years’ imprisonment. Colloquy, at 6;
          N.T., 12/2/2014, at 3. Appellant was questioned by this
          court prior to sentencing to ensure that he understood and
          accepted the terms of the plea arrangement. Id. at 3. He
          was sentenced in accordance with the sentencing
          guidelines, as well as within the range of possible
          sentences indicated in the colloquy form. Upon hearing
          that his sentences were to be served consecutively,
          Appellant immediately objected and indicated he would like
          to withdraw his guilty plea. N.T., 3/10/2015.

                                       *       *   *

          It is the opinion of this court that the guilty plea was
          entered into with a full understanding of its terms. No
          manifest injustice is created by refusing to allow Appellant
          to use a guilty plea to “test the waters” of sentencing only
          to renege when an appropriate sentence within the
          sentencing guidelines is handed down.
____________________________________________


4
    We observe:

       [i]n an open plea agreement, there is an agreement as to the
       charges to be brought, but no agreement at all to restrict the
       prosecution’s right to seek the maximum sentences applicable to
       those charges. At the other end of the negotiated plea
       agreement continuum, a plea agreement may specify not only
       the charges to be brought, but also the specific penalties to be
       imposed.

Commonwealth v. Dalberto, 648 A.2d 16, 20 (Pa.Super.1994) (quoting
Commonwealth v. Porreca, 567 A.2d 1044, 1047 (Pa.Super.1989), rev'd
on other grounds in 595 A.2d 23 (Pa.1991)).



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Trial Court Pa.R.A.P. 1925(a) Opinion, filed July 13, 2015, at 5, 6.

      The trial court did not abuse its discretion in denying Appellant’s

request to withdraw his guilty plea that he entered into knowingly,

intelligently, and voluntarily.   In return for his open plea to aggravated

assault and conspiracy, Appellant received the benefit of all other charges

being nolle prossed.    Appellant knew he could receive a maximum of 40

years’ incarceration.     Moreover, his minimum sentence of 9 years’

incarceration is far less than what he could have received. Appellant cannot

now escape the terms of the bargain into which he voluntarily entered.

      Further, after an independent review of the record, we agree with

Counsel that this appeal is wholly frivolous.

      Judgment of sentence affirmed.            Counsel’s petition to withdraw

granted.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/10/2016




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