Com. v. Ortiz, A. ( 2023 )

J-S45011-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTONIO ORTIZ :
:
Appellant : No. 628 EDA 2022
Appeal from the Judgment of Sentence Entered January 12, 2022
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0003089-2021
BEFORE: OLSON, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY OLSON, J.: FILED MARCH 13, 2023
Appellant, Antonio Ortiz, appeals from the January 12, 2022 judgment
of sentence entered in the Court of Common Pleas of Lehigh County that
imposed an aggregate sentence of 3 to 10 years’ incarceration after Appellant
pleaded guilty to, inter alia, manufacture, delivery, or possession with intent
to manufacture or deliver a controlled substance (fentanyl) and receiving
stolen property (a firearm).1 Appellant’s counsel filed an Anders brief2 and a
petition to withdraw with this Court. We grant counsel’s petition to withdraw
and affirm the judgment of sentence.
____________________________________________
1 35 P.S. 780-113(a)(30) and 18 Pa.C.S.A. § 3925(a), respectively.
2Anders v. California, 386 U.S. 738 (1967); see also Commonwealth v.
Santiago 978 A.2d 349 (Pa. 2009); Commonwealth v. McClendon, 434
A.2d 1185 (Pa. 1981).
J-S45011-22
A review of the record demonstrates that at trial court docket number
CP-39-CR-0003089-2021 (“Case 3089-2021”), Appellant pleaded guilty to the
aforementioned criminal offenses on January 12, 2022. That same day, and
as part of the same negotiated plea agreement, Appellant also pleaded guilty
to aggravated assault of a police officer and resisting arrest or other law
enforcement3 at trial court docket number CP-39-CR-0001598-2021 (“Case
1598-2021”). At trial court docket number CP-39-CR-0001599-2021 (“Case
1599-2021”), Appellant pleaded guilty to fleeing or attempting to elude a
police officer.4 Finally, at trial court docket number CP-39-CR-0003090-2021
(“Case 3090-2021”), Appellant pleaded guilty to simple assault – fear of
imminent serious bodily injury.5
Upon accepting Appellant’s guilty plea,6 the trial court sentenced
Appellant, that same day, as follows: at Case 3089-2021, Appellant was
sentenced to 3 to 10 years’ incarceration for possession with the intent to
deliver a controlled substance and 12 to 24 months’ incarceration for receiving
stolen property; at Case 1598-2021, Appellant was sentenced to 2 to 10 years’
____________________________________________
3 18 Pa.C.S.A. §§ 2702(a)(3) and 5104, respectively.
4 75 Pa.C.S.A. § 3733.
5 18 Pa.C.S.A. § 2701(a)(3).
6 Appellant accepted a 3-year minimum sentence of total confinement
pursuant to the terms of his negotiated plea agreement. The maximum term
of confinement was left to the discretion of the trial court. In addition, the
Commonwealth agreed to stand silent and allow the trial court to determine
whether the aggregate sentence would run concurrently or consecutively to a
sentence Appellant was already serving. N.T., 1/12/22, at 6, 16, 28.
-2-
J-S45011-22
incarceration for aggravated assault and 3 to 12 months’ incarceration for
resisting arrest; at Case 1599-2021, Appellant was sentenced to 3 to 12
months’ incarceration for fleeing or attempting to elude a police officer; and
at Case 3090-2021, Appellant was sentenced to 6 to 12 months’ incarceration
for simple assault. The sentences imposed at the aforementioned trial court
dockets were to run concurrently, with credit for time served (50 days), and
the sentences were to run consecutively to any sentence Appellant was
currently serving.7 Ultimately, Appellant was sentenced to an aggregate term
of 3 to 10 years’ incarceration, with the aggregate sentence to run
consecutively to the sentence Appellant was currently serving, which was 2 to
5 years’ incarceration.
On January 19, 2022, Appellant filed pro se a “petition in lieu of [a] more
formal petition to appeal [an] illegal sentence” (“post-sentence motion”).8 A
____________________________________________
7 When Appellant pleaded guilty on January 12, 2022, at the aforementioned
trial court dockets, he was currently serving a sentence of 2 to 5 years’
incarceration, which was imposed at a separate trial court docket.
8 As discussed in greater detail infra, the trial court treated Appellant’s pro se
petition to appeal an illegal sentence as a post-sentence motion. For ease and
clarity of reference, we refer to Appellant’s pro se petition as a post-sentence
motion.
The envelope Appellant used to mail his pro se post-sentence motion was
postmarked January 19, 2022, but was time-stamped as having been filed
with the trial court on January 24, 2022. Absent evidence to the contrary, we
deem January 19, 2022, the date on which Appellant deposited his
post-sentence motion with prison authorities and, pursuant to the prisoner
mailbox rule, the date Appellant filed his pro se post-sentence motion. See
Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997) (explaining the
-3-
J-S45011-22
notation on the trial court docket demonstrates that a copy of Appellant’s pro
se post-sentence motion was forwarded to Appellant’s counsel via electronic
mail.
On February 3, 2022, the trial court conducted a hearing on Appellant’s
pro se post-sentence motion. Appellant, his counsel, and counsel for the
Commonwealth were present at, and participated in, the hearing. At the
conclusion of the hearing, the trial court denied Appellant’s pro se
post-sentence motion. Trial Court Order, 2/3/22.
On February 8, 2022, Appellant filed pro se a “petition in lieu of [a] more
formal petition to appeal, correct, [or] modify [a] sentence” (“pro se petition
to appeal”).9 The trial court perceived Appellant’s pro se petition to appeal as
a notice of appeal and forwarded the same to this Court. See Trial Court
Docket at 2/15/22 entry; see also Trial Court Order, 2/15/22. Appellant’s
pro se petition to appeal was accepted by this Court as a notice of appeal and
docketed at 491 EDA 2022.
____________________________________________
well-established principle, commonly referred to as the “prisoner mailbox
rule,” under which a document is deemed filed on the date an inmate deposits
the mailing with prison authorities or places it in the prison mailbox).
9The envelope used to mail Appellant’s pro se petition to appeal is postmarked
February 8, 2022. Therefore, pursuant to the prisoner mailbox rule, we deem
February 8, 2022, the date on which Appellant filed his pro se petition to
appeal. The pro se petition to appeal is time-stamped as having been received
by the trial court on February 11, 2022, and docketed with the trial court on
February 15, 2022. The trial court docket reveals that a copy of the pro se
petition to appeal was provided to Appellant’s counsel via electronic mail.
-4-
J-S45011-22
On February 15, 2022, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pennsylvania Rule of
Appellate Procedure 1925(b). Trial Court Order, 2/15/22. A copy of the trial
court’s February 15, 2022 order was sent to Appellant’s counsel via electronic
mail on February 16, 2022.
On March 2, 2022, Appellant’s counsel filed a counseled notice of appeal,
which was docketed with this Court at 628 EDA 2022.10 On March 3, 2022,
the trial court ordered Appellant to file a Rule 1925(b) statement. Counsel
filed a statement of intent to file an Anders brief in lieu of a Rule 1925(b)
statement on March 10, 2022.11 On September 6, 2022, counsel filed with
this Court an Anders brief, as well as a petition to withdraw as counsel for
Appellant.
____________________________________________
10 On March 2, 2022, Appellant’s counsel filed with this Court an application
to discontinue the appeal docketed in this Court at 491 EDA 2022. In a March
29, 2022 per curiam order, this Court granted the application, and the appeal
docketed in this Court at 491 EDA 2022 was discontinued. Per Curiam Order,
3/29/22.
11 On August 19, 2022, the trial court filed a Rule 1925(a) opinion, indicating
that Appellant waived all issues on appeal for failure to file a Rule 1925(b)
statement. On August 22, 2022, the trial court vacated its Rule 1925(a)
opinion. Rule 1925(a) requires the trial court to “file of record at least a brief
opinion of the reasons for the order, or for the rulings or other errors
complained of, or shall specify in writing the place in the record where such
reasons may be found.” Pa.R.A.P. 1925(a). To date, the trial court has not
filed a Rule 1925(a) opinion in the case sub judice. Considering the
requirement that this Court independently review the record to determine if
there is any issue of arguable merit, however, we do not find it necessary to
remand this case to the trial court for a filing of a Rule 1925(a) opinion.
-5-
J-S45011-22
Preliminarily, we must review the procedural history of the case sub
judice to determine whether the March 2, 2022 counseled notice of appeal
was timely filed, as the timeliness of an appeal implicates this Court’s
jurisdiction. Commonwealth v. Green, 862 A.2d 613, 615 (Pa. Super.
2004) (en banc) (stating, the timeliness of an appeal implicates this Court’s
jurisdiction and, as such, this Court may consider the issue of jurisdiction sua
sponte), appeal denied, 882 A.2d 477 (Pa. 2005); see also Pa.R.Crim.P.
720(A)(2)(a) and (3) (stating, “[i]f the defendant does not file a timely
post-sentence motion, the defendant's notice of appeal shall be filed within 30
days of imposition of sentence” otherwise, the notice of appeal must be filed
within 30 days of the entry of the order deciding the post-sentence motion).
Upon entry of appearance, retained counsel continues to represent a
defendant “through direct appeal or until granted leave to withdraw by the
court[.]” Pa.R.Crim.P. 120(A)(4). It is well-established that a criminal
defendant, such as Appellant, who is represented by counsel, has no
constitutional right to hybrid representation in either the trial court or an
appellate court. Commonwealth v. Ellis, 626 A.2d 1137, 1139 (Pa. 1993).
If hybrid representation occurs at the trial court level, Pennsylvania Rule
of Criminal Procedure 576(a) sets forth the procedural requirements for
accepting pro se filings as follows:
(4) In any case in which a defendant is represented by an
attorney, if the defendant submits for filing a written motion,
notice, or document that has not been signed by the defendant's
attorney, the clerk of courts shall accept it for filing, time stamp it
with the date of receipt and make a docket entry reflecting the
-6-
J-S45011-22
date of receipt, and place the document in the criminal case file.
A copy of the time stamped document shall be forwarded to the
defendant's attorney and the attorney for the Commonwealth
within 10 days of receipt.
(5) If a defendant submits a document pro se to a judge without
filing it with the clerk of courts, and the document requests some
form of cognizable legal relief, the judge promptly shall forward
the document to the clerk of courts for filing and processing in
accordance with this rule.
Pa.R.Crim.P. 576(a)(4) and (5). A pro se filing has no tolling effect.
Pa.R.Crim.P. 576 Comments (stating, “[t]he requirement that the clerk [of
courts] time stamp and make docket entries of the [pro se] filing[] only serves
to provide a record of the filing, and does not trigger any deadline nor require
any response”); see also Commonwealth v. Jette, 23 A.3d 1032, 1044 (Pa.
2011) (stating that, “the proper response to any pro se pleading is to refer
the pleading to counsel, and to take no further action on the pro se pleading
unless counsel forwards a motion”), abrogated on other grounds by,
Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021).
Pennsylvania Rule of Criminal Procedure 720 sets forth post-sentence
procedures, in pertinent part, as follows:
Rule 720. Post-Sentence Procedures; Appeal
(A) Timing.
(1) Except as provided in paragraphs (C) and (D), a written
post-sentence motion shall be filed no later than 10 days after
imposition of sentence.
(2) If the defendant files a timely post-sentence motion, the
notice of appeal shall be filed:
(a) within 30 days of the entry of the order deciding the
motion;
-7-
J-S45011-22
(b) within 30 days of the entry of the order denying the
motion by operation of law in cases in which the [trial court]
fails to decide the motion; or
(c) within 30 days of the entry of the order memorializing
the withdrawal in cases in which the defendant withdraws
the motion.
(3) If the defendant does not file a timely post-sentence motion,
the defendant's notice of appeal shall be filed within 30 days of
imposition of sentence, except as provided in paragraph (A)(4)
[(concerning when the Commonwealth files a timely motion to
modify a sentence)].
Pa.R.Crim.P. 720(A)(1-3).
In the instant case, after Appellant was sentenced on January 12, 2022,
Appellant filed a pro se post-sentence motion while still represented by
counsel. In accord with Rule 576, the trial court accepted Appellant’s pro se
post-sentence motion for filing and docketed the same on January 24, 2022.12
The clerk of courts also sent a copy of the pro se post-sentence motion to
Appellant’s counsel of record.13 The trial court then acted upon Appellant’s
____________________________________________
12 In his pro se post-sentence motion, Appellant asserts that his sentence was
illegal because it did not conform with the negotiated plea agreement.
Post-Sentence Motion, 1/24/22, at ¶1 (stating, Appellant’s “sentence was
outside the negotiated plea [agreement] where [the trial court] impose[d] a
prison term [to run] consecutive[ly, and the] negotiated plea agreement was
[for the sentence] to run concurrently”).
13 Appellant’s counsel acknowledged at the February 3, 2022 hearing,
discussed supra, that he received a copy of Appellant’s pro se post-sentence
motion. N.T., 2/3/22, at 2.
-8-
J-S45011-22
pro se post-sentence motion by scheduling a hearing on the matter.14 In
denying Appellant’s pro se post-sentence motion, the trial court stated,
So at this point, [Appellant], the motion that you have filed is
called a petition to appeal an illegal sentence. I am going to deny
that motion because there is nothing that is illegal about this
[sentence based upon a review of] the sentencing sheets[] I
complied with the plea agreement [] that you had. If you wish to
file an appeal, you are able to do that. If you want to file a motion
to withdraw the plea, you can do that. That is a separate petition
that you can go through the same procedure that you went
through with this one to file. I will review this. I will determine if
there is any basis for me to grant those. If not, I will inform you
if I deny them and you can take the appeal from there.
If any other motion is filed, I will also consider whether it is
necessary to appoint any other conflict counsel for you. But at
this point, I don't see any basis to grant your petition to appeal
an illegal sentence. Do you understand all that, [Appellant]?
N.T., 2/3/22, at 10-11.
Typically, Appellant’s pro se post-sentence motion would be a legal
nullity because he was represented by counsel when he filed it. See
Pa.R.Crim.P. 120(A)(4); see also Commonwealth v. Nischan, 928 A.2d
349, 355 (Pa. Super. 2007) (stating, a pro se post-sentence motion filed by a
defendant who is represented by counsel is a legal nullity). After Appellant
filed his pro se post-sentence motion, and a copy was provided to his counsel
pursuant to Rule 576, however, the trial court acted on the pro se
____________________________________________
14 A scheduling order for the February 3, 2022 was not entered on the docket
and is not part of the certified record. Notice of the hearing, however, was
received by Appellant, Appellant’s counsel, and the Commonwealth because
all three parties appeared at the hearing. See generally N.T., 2/3/22.
-9-
J-S45011-22
post-sentence motion by scheduling, and holding, a hearing on the matter
contrary to Rule 576 and relevant case law, as discussed supra.15 By taking
action on the pro se filing, the trial court signaled that Appellant’s pro se
post-sentence motion had been accepted by the trial court and was sufficient
to permit review contrary to the long-standing principle against hybrid
representation as set forth in Ellis, supra, and its progeny, as well as Rule
576.16
At the February 3, 2022 hearing, Appellant’s counsel did not seek
permission to file a revised post-sentence motion or to withdraw as counsel
for Appellant. Instead, counsel summarized for the trial court the basis of
Appellant’s pro se post-sentence motion, as well as the argument counsel put
forth at the time of Appellant’s sentencing whereby he requested that the trial
court impose an aggregate sentence in the case sub judice to run concurrently
with the sentence Appellant was already serving. N.T., 2/3/22, at 2-5
(stating, “[t]hat was my request to the [trial c]ourt to run [Appellant’s
sentences] concurrently with one another”). In so asserting, Appellant’s
____________________________________________
15 The proper course for the trial court to have taken would have been to
refrain from acting upon Appellant’s pro se post-sentence motion.
16 The trial court’s comments directed towards Appellant at the time the trial
court denied Appellant’s pro se post-sentence motion, i.e., “That is a separate
petition that you can go through the same procedure that you went
through with this one to file” (emphasis added), as noted supra, suggests
that Appellant was permitted to continue to submit pro se filings despite his
being represented by counsel, which is in direct contradiction to the principle
disallowing hybrid representation.
- 10 -
J-S45011-22
counsel adopted Appellant’s pro se post-sentence motion and transformed it
into a counseled post-sentence motion. Therefore, Appellant’s post-sentence
motion and the trial court’s order denying the same do not offend the
considerations of hybrid representation. Commonwealth v. Mason, 130
A.3d 601, 671 (Pa. 2015) (acknowledging that, when counsel receives proper
notice of a pro se filing pursuant to Rule 576(a)(4) and subsequently adopts
the pro se filing, the trial court shall give force to the pro se filing without
offending considerations of hybrid representation), relying on
Commonwealth v. Cooper, 27 A.3d 994 (Pa. 2011).
Considering Appellant filed a timely post-sentence motion and the trial
court denied the same on February 3, 2022, the notice of appeal filed by
Appellant’s counsel on March 2, 2022 was timely filed thereby perfecting
jurisdiction with this Court. Pa.R.Crim.P. 720(A)(2)(a) (stating, if a defendant
files a post-sentence motion, the notice of appeal shall be filed within 30 days
of the entry of the order deciding the motion). Therefore, we proceed to
address counsel’s petition to withdraw and the accompanying Anders brief,
both alleging this appeal is frivolous.
“When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.
2010) (citation omitted). To withdraw pursuant to Anders, “counsel must file
a brief that meets the requirements established by our Supreme Court in
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).”
- 11 -
J-S45011-22
Commonwealth v. Harden, 103 A.3d 107, 110 (Pa. Super. 2014) (parallel
citation omitted). Specifically, counsel’s Anders brief must comply with the
following requisites:
(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.
Id. (citation omitted). Pursuant to Commonwealth v. Millisock, 873 A.2d
748 (Pa. Super. 2005), and its progeny, “[c]ounsel also must provide a copy
of the Anders brief to his[, or her,] client.” Commonwealth v. Orellana,
86 A.3d 877, 880 (Pa. Super. 2014) (internal quotation marks and citation
omitted). The brief must be accompanied by a letter that advises the client
of the option 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.” Id. “Once counsel has satisfied the above requirements, it is then this
Court’s duty to conduct its own review of the trial court’s proceedings and
render an independent judgment as to whether the appeal is, in fact, wholly
frivolous.” Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa. Super.
2007) (en banc) (citation and internal quotation marks omitted).
- 12 -
J-S45011-22
Instantly, Appellant’s counsel satisfied the technical requirements of
Anders and Santiago. In his Anders brief, counsel identified the pertinent
factual and procedural history and made citation to the record. Counsel raises
a claim challenging Appellant’s sentence on the ground the sentence violated
the negotiated plea agreement. Counsel notes that this claim could arguably
support an appeal but, ultimately, counsel concludes the appeal is frivolous.
Counsel also attached to his petition to withdraw a letter to Appellant that
fulfills the notice requirements of Millisock. Appellant has not filed a response
to counsel’s letter, the Anders brief, or the petition to withdraw. Accordingly,
we proceed to conduct an independent review of the record to determine
whether the appeal is wholly frivolous.
In his Anders brief, counsel for Appellant challenges Appellant’s
sentence on the ground the trial court violated the terms of the negotiated
plea agreement by ordering Appellant’s aggregate sentence imposed in the
instant case to run consecutively to a sentence Appellant was currently
serving. Anders Brief at 5-13. At first glance, this claim appears to challenge
the discretionary aspects of Appellant’s sentence, namely whether the trial
court abused its discretion in imposing a sentence that was set to run
consecutively, rather than concurrently, to the sentence Appellant was already
serving. An examination of Appellant’s post-sentence motion and, in
particular, the argument Appellant put forward at the February 3, 2022
hearing, however, demonstrates that Appellant petitioned the trial court to
permit him to withdraw his guilty plea on the ground the trial court violated
- 13 -
J-S45011-22
the terms of the negotiated plea agreement.17 See N.T., 2/3/22, at 9 (stating,
“I [(Appellant)] wanted to take my plea back because it was not what we
agreed to. So if you [(trial court)] can, I would like a fair trial. I would like
to go to trial on these cases please.”).
“It is well-settled that the decision whether to permit a defendant to
withdraw a guilty plea is within the sound discretion of the trial court” and, as
such, this Court reviews a trial court order denying a motion to withdraw a
guilty plea for an abuse of discretion. Commonwealth v. Hart, 174 A.3d
____________________________________________17 We are cognizant that “where a defendant pleads guilty pursuant to a plea
agreement specifying particular penalties, the defendant may not seek a
discretionary appeal relating to those agreed-upon penalties.”
Commonwealth v. Brown, 982 A.2d 1017, 1019 (Pa. Super. 2009) (citation
omitted) (stating that, “[p]ermitting a defendant to petition for such an appeal
would undermine the integrity of the plea negotiation process and could
ultimately deprive the Commonwealth of sentencing particulars for which it
bargained”), appeal denied, 990 A.2d 726 (Pa. 2010). Where the negotiated
plea agreement specifies some but not all aspects of the sentence, i.e., a
“hybrid” guilty plea, a defendant may seek a discretionary appeal related to
the aspects of the sentence that were not agreed upon in the negotiation
process. Commonwealth v. Heaster, 171 A.3d 268, 271 (Pa. Super. 2017),
appeal denied, 181 A.3d 1078 (Pa. 2018).
In the instant case, Appellant does not allege that the trial court, in fixing its
sentence, abused its discretion by imposing consecutive, rather than
concurrent, punishments for the aforementioned offenses. Instead, in filing
his post-sentence motion, Appellant alleged that he should be permitted to
withdraw his guilty plea because he did not receive what he bargained for in
the plea negotiation process, namely that the sentence in the instant case
would run concurrently to the sentence Appellant was already serving. As
such, we decline to treat Appellant’s appeal as raising a challenge to the
discretionary aspect of his sentence.
- 14 -
J-S45011-22
660, 664 (Pa. Super. 2017), relying on Commonwealth v. Broaden, 980
A.2d 124 (Pa. Super. 2009), appeal denied, 992 A.2d 885 (Pa. 2010).
Although no absolute right to withdraw a guilty plea exists in
Pennsylvania, the standard applied differs depending on whether
the defendant seeks to withdraw the plea before or after
sentencing. When a defendant seeks to withdraw a plea after
sentencing, he[, or she,] must demonstrate prejudice on the order
of manifest injustice. [A] defendant may withdraw [the] guilty
plea after sentencing only where necessary to correct manifest
injustice. Thus, post-sentence motions for withdrawal are subject
to higher scrutiny since the courts strive to discourage the entry
of guilty pleas as sentence-testing devices.
Hart, 174 A.3d at 664 (citations and quotation marks omitted).
“Manifest injustice occurs when the plea is not tendered knowingly,
intelligently, voluntarily, and understandingly.” Id. (citation omitted).
In determining whether a plea is valid, the court must examine
the totality of circumstances surrounding the plea. Pennsylvania
law presumes a defendant who entered a guilty plea was aware of
what he[, or she,] was doing, and the defendant bears the burden
of proving otherwise.
Id. (citations and quotation marks omitted).
Here, at Appellant’s January 12, 2022 sentencing hearing, after
summarizing the potential sentencing terms to which Appellant was exposed
for the aforementioned criminal offenses (see N.T., 1/12/22, at 8-9), the trial
court stated:
The other part of this plea agreement, which is probably the most
important, is that all these sentences run together or concurrently.
Meaning, every day you spend in jail would count towards all four
sentences. And, lastly, that however I decide to mix and match,
I cannot impose a minimum period of incarceration greater than
three years. If I went even one day over the 3-year minimum,
- 15 -
J-S45011-22
that would violate your plea agreement[.] However, even though
we have a fixed agreement between the lawyers on the minimum,
there is no agreement on the maximum. So, technically, if I
wanted to, I could – for instance, if I ran the first case, the
aggravated assault and the resisting arrest[,] consecutive[ly] and
give you a 3-year minimum, I could make your maximum there
up to 12 years[’ incarceration.]
N.T., 1/12/22, at 9-10 (paragraph formatting modified). Afterward, the trial
court asked Appellant if he understood the terms of the negotiated plea
agreement, to which Appellant responded in the affirmative. Id. Additionally,
the following exchange occurred pertinent to Appellant’s understanding of the
negotiated plea agreement:
[Commonwealth:] Just so there’s no confusion about and
[Appellant] understands, the overall
agreement would be for a flat fixed 36
months with the maximum up to Your
Honor, and the highest maximum that I
could see is 15 years. If I’m
understanding the plea correctly – and I
just want to make sure that I’m on the
same page – the worst case scenario for
[Appellant] could be the 36-month
minimum, which is agreed upon, and a
15-year maximum. Just so that’s clear for
[Appellant] because it looked like maybe
there was some confusion.
[Trial Court:] . . . [Y]ou’re right. Fifteen years is the –
[Commonwealth:] Is the highest max[imum].
[Trial Court:] You’re right. I could make everything run
concurrently with that being the highest
max[imum] there.
...
[Trial Court:] To make sure I have a complete
understanding of the nature of this plea
- 16 -
J-S45011-22
agreement, is there an agreement
between counsel that these sentences [in
the instant case] run concurrent[ly] to the
sentence [Appellant is already serving]?
[Commonwealth:] No. I think [Appellant’s counsel] is asking
for that, and I said I would – I’ll remain
silent on the situation, Judge. I’ll leave it
to your discretion but there’s no
agreement that it run concurrently.
[Trial Court:] Certainly within these four cases, there’s
a package but no binding agreement with
regard to [the] sentence [already
imposed on Appellant].
[Commonwealth:] That’s correct.
[Appellant’s counsel:] . . . Yes, [Appellant] is already serving
[a] sentence [in another case] and my
request is going to be running [the
sentence in the instant case]
concurrently[.]
Id. at 16, 28-29. In imposing the individual sentences, as detailed supra, the
trial court concluded by stating,
The sentence [in Case 3090-2021] also runs concurrent[ly] with
that imposed in [Case 3089-2021, Case 1599-2021, and Case
1598-2021]. If I didn’t already mention, [the sentence imposed
in Case 3089-2021] also runs concurrent[ly] with the [sentence
imposed in Case 1599-2021 and the sentence imposed in Case
1598-2021], but [the sentence imposed in Case 3089-2021] runs
consecutive[ly] to any sentence currently being served by
[Appellant].
Id. at 37. The trial court then asked the Commonwealth and Appellant’s
counsel if there was anything else to add, to which both the Commonwealth
and counsel for Appellant replied in the negative. Id.
- 17 -
J-S45011-22
The foregoing exchange at Appellant’s plea hearing reflects that the trial
court possessed authority to impose a sentence at Case 3089-2021
consecutive to a term of imprisonment that Appellant was already serving.
Based upon the totality of circumstances surrounding Appellant’s entry into
guilty pleas on the criminal offenses charged in this case, Appellant failed to
demonstrate that his sentence differed with the terms of the negotiated plea
agreement. The terms of the negotiated plea agreement included a minimum
term of 3 years’ incarceration with no agreed upon maximum, but an
understanding that the potential maximum was 15 year’s incarceration, and
that the four sentences would run concurrently to each other but consecutively
to the sentence Appellant was already serving. As such, Appellant entered a
knowing, intelligent, voluntary plea and received the benefits to which he was
entitled under the negotiated plea agreement.
Upon review, we conclude that the record supports counsel’s
assessment that Appellant’s appeal is wholly frivolous. Moreover, our
independent review of the entire record reveals no additional non-frivolous
claims.18 Therefore, we grant counsel’s petition to withdraw and affirm the
judgment of sentence.
____________________________________________
18 Even if the issue raised in Appellant’s pro se post-sentence motion were
viewed as a challenge to the discretionary aspects of sentence, this issue
would be without arguable merit. See Commonwealth v. Austin, 66 A.3d
798, 808 (Pa. Super 2013) (stating, “Pennsylvania law affords the sentencing
court discretion to impose its sentence concurrently or consecutively to other
sentences being imposed at the same time or to sentences already imposed”
- 18 -
J-S45011-22
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/13/2023
____________________________________________
(citation and original quotation marks omitted)), appeal denied, 77 A.3d 1258(Pa. 2013).
- 19 -