Com. v. Campos, X. (memorandum)

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J-S30034-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. XIOMARA CAMPOS Appellant No. 1827 MDA 2013 Appeal from the Order Entered August 28, 2013 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0001597-2012 & CP-40-CR-00019132012 BEFORE: BENDER, P.J.E., MUNDY, J., and JENKINS, J. MEMORANDUM BY JENKINS, J.: FILED JUNE 05, 2014 negotiated guilty plea in the Luzerne County Court of Common Pleas to 1 possession of a controlled substance,2 and possession of drug paraphernalia.3 On the same day, the trial court imposed a sentence of 24 months of county intermediate punishment, with the first 12 months to be served as house arrest with electronic home monitoring, on the PWID conviction, and a concurrent aggregate sentence of 24 months of probation 1 35 P.S. § 780-113(a)(30). 2 35 P.S. § 780-113(a)(16). 3 35 P.S. § 780-113(a)(32). J-S30034-14 for the possession of a controlled substance and possession of drug paraphernalia convictions. On May 24, 2013, Appellant filed a pro se motion to withdraw her guilty plea that alleged that she was rushed into the guilty plea, was not fully informed of the consequences of a felony conviction, and did not want immediate sentencing. On August 28, 2013, the trial court conducted a hearing and denied the motion. On September 26, 2013, Appellant timely filed a notice of appeal claiming that the trial court erred in denying her post-sentence motion to application seeking to withdraw from representation pursuant to Anders v. California4 and its Pennsylvania counterpart, Commonwealth v. Santiago.5 to withdraw. 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 4 386 U.S. 738 (1967). 5 978 A.2d 349 (Pa.2009). -2- J-S30034-14 counsel believes arguably supports the appeal; (3) set forth co 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 (2) proceed pro se on appeal; or (3) raise any points that the appellant Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa.Super.2007). sufficient. Substantial compliance with these requirements is Commonwealth v. Wrecks, 934 A.2d 1287, 1290 been met, this Court must then make an independent evaluation of the Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super.2006). Instantly, counsel filed a petition to withdraw as counsel. The petition that the grounds sought to be reviewed by [Appellant] are Petition to Withdraw at 1. Counsel notified Appellant of the withdrawal request, supplied her with a copy of the Anders brief, and sent her a letter explaining her right to proceed pro se or with new, privately-retained counsel to raise any additional points or arguments that Appellant believed -3- J-S30034-14 had merit. See Letter to Appellant, February 10, 2014, attached to Petition to Withdraw. 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 her conclusion that the appeal is wholly frivolous and her reasons therefor. Accordingly, counsel has substantially complied with the 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 issue of arguable merit raised in the Anders brief: Whether the trial court abused its discretion by denying -sentence motion to withdraw her guilty plea? Anders Brief, p. 1. This claim lacks merit. motion to withdraw a plea is to review the record of the plea and any postsentence proceeding. See Commonwealth v. Moser, 921 A.2d 526, 528530 (Pa.Super.2007). Our standard of review is whether the trial court abused its discretion. Id., 921 A.2d at 530. No absolute right to withdraw a plea exists. Commonwealth v. Flick a plea of guilty, it is presumed that he was aware of what he was doing, and Moser, 921 A.2d at 529; see also Commonwealth v. -4- Rush, 909 A.2d 805, 808 J-S30034-14 plea was aware of what he was doing. He bears the burden of proving imposition of sentence is much higher than the standard applicable to a presentence 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 her post-sentence motion to withdraw the plea. Id. tendered knowingly, intelligentl Commonwealth v. Hodges, 789 A.2d 764, 765 (Pa.Super.2002); see also Pa.R.Crim.P. Byrne, 833 A.2d at 737 (citation omitted); see also Commonwealth v. Moser, 921 A.2d 526, 528- with the outcome of his decision to enter a plea of guilty: All that is required knowingly, voluntarily and colloquy must affirmatively show that the defendant understood what the Commonwealth v. Fluharty, 632 understood the connotations of his plea and its consequences requires an -5- J-S30034-14 Moser re 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 Fluharty, 632 A.2d at voluntariness of the plea. Commonwealth v. Meyers, 642 A.2d 1103, 1106 (Pa.Super.1994). 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 power to deviate from any recommended sente Commonwealth v. Morrison, 878 A.2d 102, 107 (Pa.Super.2005); Comment to Pa.R.Crim.P. 590(A)(2). A written plea colloquy that is read, completed and signed by 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). Further, conducted, during which it became evident that the defendant understood the nature of the charges against him, the voluntariness of the plea is Moser, 921 A.2d at 529. plea colloquy touched upon all areas required for a valid plea. -6- See N.T. J-S30034-14 5/14/2013. At the sentencing hearing, the Commonwealth outlined the charges, the maximum possible sentences, the negotiated sentences, and the fact that Appellant was to be immediately sentenced. Appellant agreed. Id. at 3. Id. at 2. The trial court then conducted an extensive colloquy during which it reviewed the plea agreement outline by the burden of proof. Id. at 3-6. Appellant confirmed that she understood the charges, the plea agreement, the maximum possible sentences, and the plea agreement. Id. at 4-5. She further stated that she had discussed the one had forced her to plead guilty. Id. at 4-6. She further agreed to the Id. at 5. Appellant also read, completed, and signed a written plea agreement. Id. at 4-5. She is bound by these statements. See Commonwealth v. McCauley, 797 A.2d makes during his plea colloquy, and may not assert grounds for withdrawing above, the trial court expressly accepted the plea as knowingly and voluntarily tendered and sentenced Appellant consistent with the terms of the negotiated plea agreement. N.T. 5/14/2013, pp. 7-10. plea, the trial court hear enough time to decide about the plea agreement, chose poorly in pleading -7- J-S30034-14 guilty, and did not understand that a felony could not later be expunged from her record. See generally N.T. 8/28/2013. The court denied the motion as follows: Based upon everything presented, a review of the record, the [c]ourt is going to deny the motion to withdraw the guilty plea. It is clear to the [c]ourt that there is no manifest injustice. [Appellant] was given a lengthy colloquy. [Appellant] reviewed a plea agreement, signed a plea agreement. The plea agreement sets forth everything on the record of the colloquy. [Appellant] knew it was a felony offense. On the written plea agreement, it is a felony offense. I think this is just a case where following afterwards, [Appellant] wants to change her mind, but there is not grounds that the [c]ourt sees to allow her to withdraw the guilty plea. So the motion is denied. N.T. 8/28/2013, pp. 18-19. Our review of the sentencing and post-sentence motion hearing transcripts reveals that the lower court did not abuse its discretion. The entered her plea knowingly, voluntarily, and intelligently. Additionally, our independent review of the record has revealed no non-frivolous claims that Appellant could have raised, and we agree with counsel that this appeal is wholly frivolous. Accordingly, we affirm the judgment of sentence. Judgment of sentence affirmed. granted. -8- Cou J-S30034-14 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/5/2014 -9-

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