Com. v. Rivera, F. ( 2023 )

J-S13008-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FERNANDO RIVERA :
:
Appellant : No. 2291 EDA 2022
Appeal from the Judgment of Sentence Entered March 28, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0005244-2019
BEFORE: NICHOLS, J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY NICHOLS, J.: FILED AUGUST 8, 2023
Appellant Fernando Rivera appeals from the judgment of sentence
imposed after he entered an open guilty plea to aggravated assault and
related offenses. Appellant’s counsel (Counsel) has filed a petition to withdraw
and an Anders/Santiago brief.1 After review, we grant Counsel’s petition to
withdraw and affirm the judgment of sentence.
The underlying facts and procedural history of this matter are well
known to the parties. See Trial Ct. Op., 11/14/22, at 1-4. Briefly, on January
11, 2019, Appellant got into an argument with Shayquan Wright (Wright) over
the sale of a dirt bike. Aff. of Probable Cause, 2/15/19, at 2. Appellant then
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
J-S13008-23
shot at Wright multiple times, striking him in the neck, leg, and groin. Id.Appellant was subsequently arrested in connection with the shooting, and on
July 27, 2021, Appellant entered an open guilty plea to one count each of
aggravated assault, persons not to possess firearms, firearms not to be carried
without a license, carrying firearms on public streets or public property in
Philadelphia, possessing an instrument of crime (PIC), and recklessly
endangering another person (REAP).2
On March 28, 2022, the trial court sentenced Appellant to concurrent
terms of seven to fourteen years of incarceration for both aggravated assault
and persons not to possess firearms. Sentencing Order, 3/28/22, at 1. The
trial court imposed no further sentence on the remaining crimes, resulting in
an aggregate sentence of seven to fourteen years of incarceration. See id.On April 1, 2022, Appellant filed a timely post-sentence motion
requesting reconsideration of his sentence. The trial court docket reflects that
the post-sentence motion was denied by operation of law on August 2, 2022.
Appellant filed a notice of appeal on August 26, 2022. On August 31,
2022, the trial court directed Appellant to file a Pa.R.A.P. 1925(b) statement.
On September 19, 2022, in lieu of Rule 1925(b) statement, Counsel filed a
notice of intent to file an Anders/Santiago brief pursuant to Rule 1925(c)(4).
The trial court subsequently issued a Rule 1925(a) opinion.
____________________________________________
2 18 Pa.C.S. §§ 2702(a), 6105(a)(1), 6106(a)(1), 6108, 907(a), and 2705,
respectively.
-2-
J-S13008-23
Before we reach the issues identified in the Anders/Santiago brief, we
first address whether Appellant’s appeal is timely. See Commonwealth v.
Capaldi, 112 A.3d 1242, 1244 (Pa. Super. 2015) (explaining that the
timeliness of an appeal impacts our jurisdiction, and this Court lacks
jurisdiction over an untimely appeal). A notice of appeal must be filed within
thirty days of the date of the order from which it is taken. See Pa.R.A.P.
903(a); see also Capaldi, 112 A.3d at 1244. In criminal cases where the
defendant files a timely post-sentence motion, the notice of appeal shall be
filed within thirty days of the entry of the order deciding the post-sentence
motion. See Pa.R.Crim.P. 720(B)(2)(a).
Pursuant to Rule 720 of the Pennsylvania Rules of Criminal Procedure,
the trial court must rule on a defendant’s post-sentence motion within 120
days. See Pa.R.Crim.P. 720(B)(3)(a). If the trial court fails to do so, “the
motion shall be deemed denied by operation of law.” See id. When a post-
sentence motion is denied by operation of law, the clerk of courts shall enter
an order deeming the motion denied by operation of law on behalf of the trial
court and serve copies on the parties. See Pa.R.Crim.P. 720(B)(3)(c).
Here, although the 120-day period for the trial court to decide
Appellant’s post-sentence motion expired on August 1, 2022,3 the clerk of
____________________________________________
3 The 120th day fell on Saturday, July 30, 2022, and therefore, Monday,
August 1, 2022, was the first day the courts would be open following the
expiration of the 120-day period. See 1 Pa.C.S. § 1908 (for computations of
time, if the last day of any such period shall fall on a Saturday, Sunday, or on
a legal holiday, such day shall be omitted from the computation).
-3-
J-S13008-23
courts did not enter the order denying Appellant’s post-sentence motion by
operation of law until one day later on August 2, 2022. Therefore, we conclude
that a breakdown occurred. See Commonwealth v. Patterson, 940 A.2d
493, 498-99 (Pa. Super. 2007) (reiterating that a court breakdown occurs
when the trial court clerk fails to enter an order deeming a defendant’s post-
sentence motions denied by operation of law pursuant to Pa.R.Crim.P.
720(B)(3)(c)). Further, the record reflects that Appellant filed his appeal
within thirty days of the trial court’s August 2, 2022 order. See Notice of
Appeal, 8/26/22. Under these circumstances, we conclude that Appellant’s
appeal was timely. See Commonwealth v. Willis, 1621 EDA 2021, 2023
WL 129427, at *5 & n.11 (Pa. Super. filed Jan. 9, 2023) (unpublished mem.)
(finding that the appellant’s notice of appeal was timely when it was filed
within thirty days from the date that the trial court belatedly entered an order
denying the post-sentence motion by operation of law).4
Counsel has identified the following issues in the Anders/Santiago
brief:
1. Is the guilty plea in this matter valid – that is, should . . .
[A]ppellant be permitted to withdraw his guilty plea?
2. Was the sentence imposed upon . . . [A]ppellant by the lower
court manifestly excessive?
Anders/Santiago Brief at 5.
____________________________________________
4 See Pa.R.A.P. 126(b) (providing that unpublished non-precedential
memorandum decisions of the Superior Court filed after May 1, 2019, may be
cited for their persuasive value).
-4-
J-S13008-23
“When faced with a purported Anders[/Santiago] brief, this Court may
not review the merits of any possible underlying issues without first examining
counsel’s request to withdraw.” Commonwealth v. Wimbush, 951 A.2d
379, 382 (Pa. Super. 2008) (citation omitted). Counsel must comply with the
technical requirements for petitioning to withdraw by (1) filing a petition for
leave to withdraw stating that after making a conscientious examination of
the record, counsel has determined that the appeal would be frivolous; (2)
providing a copy of the brief to the appellant; and (3) advising the appellant
that he has the right to retain private counsel, proceed pro se, or raise
additional arguments that the appellant considers worthy of the court’s
attention. See Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.
2007) (en banc).
Additionally, counsel must file a brief that meets the requirements
established in Santiago, namely:
(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.
“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
-5-
J-S13008-23
frivolous.” Goodwin, 928 A.2d at 291 (citation omitted). This includes “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) (citation and footnote omitted); accord
Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en
banc).
Here, Counsel has complied with the procedural requirements for
seeking withdrawal by filing a petition to withdraw, sending Appellant a letter
notifying Appellant of his intent to withdraw, explaining his appellate rights,
and informing Appellant of his right to proceed pro se or with private counsel,
and supplying Appellant with a copy of the Anders/Santiago brief. See
Goodwin, 928 A.2d at 290. Counsel also provided this Court with a copy of
his letter to Appellant informing him of his rights. Moreover, Counsel’s
Anders/Santiago brief complies with the requirements of Santiago.
Counsel includes a summary of the relevant factual and procedural history,
refers to the portions of the record that could arguably support Appellant’s
claim, and sets forth the conclusion that the appeal is frivolous. See
Santiago, 978 A.2d at 361. Accordingly, we conclude that Counsel has met
the technical requirements of Anders and Santiago, and we will proceed to
address the issues presented in Counsel’s Anders/Santiago brief.
The first issue Counsel identified in the Anders/Santiago brief involves
the validity of Appellant’s guilty plea. Anders/Santiago Brief at 26.
However, Counsel explained that because Appellant did not raise this issue
-6-
J-S13008-23
before the trial court or move to withdraw his guilty plea, this claim is waived
and cannot support a direct appeal. See id. at 27-28. We agree with
Counsel’s assessment.
It is well settled that in order to challenge the validity of a guilty plea on
direct appeal, the defendant must either object during the plea colloquy or file
a motion to withdraw the plea within ten days of sentencing. See
Commonwealth v. Lincoln, 72 A.3d 606, 609-10 (Pa. Super. 2013);
Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i). When the defendant fails to object or
move to withdraw the plea, the issue is waived on appeal. Lincoln, 72 A.3d
at 610. “Historically, Pennsylvania courts adhere to this waiver principle
because it is for the court which accepted the plea to consider and correct, in
the first instance, any error which may have been committed.” Id. (citation
omitted and formatting altered).
Here, Appellant did not object to the validity of his guilty plea during the
plea colloquies. See Written Guilty Plea Colloquy, 7/27/21; N.T. 7/27/21, at
4-27. Further, although Appellant filed a post-sentence motion, he did not
challenge any aspect of the guilty plea or request to withdraw his guilty plea.
See Post-Sentence Mot. 4/1/22. For these reasons, we conclude that
Appellant failed to preserve the issue for review. See Lincoln, 72 A.3d at
609-10; Pa.R.A.P. 302(a). Moreover, we note that when an issue is waived,
it is deemed a frivolous issue. See Commonwealth v. Kalichak, 943 A.2d
285, 291 (Pa. Super. 2008) (holding that when an issue has been waived,
-7-
J-S13008-23
“pursuing th[e] matter on direct appeal is frivolous”).5 Accordingly, we agree
with Counsel’s assessment and conclude that Appellant’s challenge to the
validity of the plea is frivolous and no relief is due.
In the second issue, Counsel identifies a claim that the trial court abused
its discretion in imposing Appellant’s sentence. Anders/Santiago Brief at 18.
Specifically, Counsel indicates that Appellant believes the sentence was
excessive. Id. However, Counsel concludes that he cannot ethically argue
that the trial court abused its discretion when it imposed Appellant’s sentence.
See id. at 25-26.
“A challenge to an alleged excessive sentence is a challenge to the
discretionary aspects of a sentence.” Commonwealth v. Ahmad, 961 A.2d
884, 886 (Pa. Super. 2008) (citation omitted). It is well settled that a
defendant “who pleads guilty and receives a negotiated sentence may not then
seek discretionary review of that sentence.” Commonwealth v. O’Malley,
____________________________________________
5 We note that, although Counsel did not raise the issue before the trial court
or in a Rule 1925(b) statement, Counsel references one potential issue related
to the guilty plea proceedings. Specifically, Counsel notes that the
Commonwealth did not provide a description of the firearm as defined in
Section 6102, and therefore, “one could colorably argue” that the
Commonwealth provided an insufficient factual basis to support Appellant’s
guilty plea. Anders/Santiago Brief at 28-29. However, Appellant did not
raise this issue during his guilty plea colloquy, nor did he seek to withdraw his
plea in a post-sentence motion. Further, he did not argue this issue at any
time before the trial court. Therefore, Appellant failed to preserve an appellate
challenge concerning the description of the firearm. See Lincoln, 72 A.3d at
609-10; see also Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i). Accordingly, it is
waived, and therefore frivolous. See Lincoln, 72 A.3d at 609-10; Kalichak,
943 A.2d at 291.
-8-
J-S13008-23
957 A.2d 1265, 1267 (Pa. Super. 2008) (citation omitted). However, where
the appellant enters an open guilty plea and there is no agreement as to
sentence, the appellant may challenge the discretionary aspects of their
sentence on appeal. Commonwealth v. Luketic, 162 A.3d 1149, 1159 (Pa.
Super. 2017).
It is well settled that
challenges to the discretionary aspects of sentencing do not entitle
an appellant to review as of right. An appellant challenging the
discretionary aspects of his sentence must invoke this Court’s
jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (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, 42 Pa.C.S. § 9781(b).
Commonwealth v. Proctor, 156 A.3d 261, 273 (Pa. Super. 2017) (some
citations omitted and formatting altered). “A substantial question exists only
when the appellant advances a colorable argument that the sentencing judge’s
actions were either: (1) inconsistent with a specific provision of the Sentencing
Code; or (2) contrary to the fundamental norms which underlie the sentencing
process.” Id. (citation omitted).
Here, Appellant preserved his sentencing claim in a post-sentence
motion and filed a timely appeal. However, Counsel did not include a Pa.R.A.P.
2119(f) statement in the Anders/Santiago brief, and Counsel concluded that
-9-
J-S13008-23
there is no “colorable” argument or question that can be raised with respect
to Appellant’s sentence. See Anders/Santiago Brief at 25-26.
It is well settled that:
[w]hen challenging the discretionary aspects of sentence, an
appellant must include in his or her brief a separate concise
statement demonstrating that there is a substantial question as
to the appropriateness of the sentence under the Sentencing
Code. If the Commonwealth objects to the appellant’s failure to
comply with Pa.R.A.P. 2119(f), the sentencing claim is waived for
purposes of review.
Commonwealth v. Griffin, 149 A.3d 349, 353 (Pa. Super. 2016) (citations
and quotation marks omitted).
Here, the Commonwealth argues that Appellant has failed to properly
preserve his challenge to the discretionary aspects of his sentence due to his
failure to include a Rule 2119(f) statement. Commonwealth’s Brief at 9.
Because the Commonwealth has objected to Appellant’s failure to include a
Rule 219(f) statement, we are constrained to find Appellant waived his
challenge to the discretionary aspects of his sentence. Griffin, 149 A.3d at
353. Further, we reiterate that a waived issue is a deemed to be a frivolous
issue. See Kalichak, 943 A.2d at 291.
After review, we agree with Counsel’s assessment of Appellant’s appeal,
and we conclude that the appeal is, therefore, wholly frivolous.6 Further, our
____________________________________________
6 Although Counsel does not specifically use the word “frivolous,” Counsel
concludes that he is “unable to ethically advance a colorable argument”
regarding Appellant’s sentence and notes that Appellant has failed to preserve
(Footnote Continued Next Page)
- 10 -
J-S13008-23
independent review of the record does not reveal any additional, non-frivolous
issues for direct appeal, therefore no relief is due. See Goodwin, 928 A.2d
at 291; Flowers, 113 A.3d at 1250. For these reasons, we grant Counsel’s
petition to withdraw and affirm the judgment of sentence.
Counsel’s petition to withdraw granted. Judgment of sentence affirmed.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/8/2023
____________________________________________
any challenge to his guilty plea on direct appeal. Anders/Santiago Brief at
25-26, 33. However, in his application to withdraw, Counsel specifically
concludes that Appellant’s issues are frivolous. See Appl. to Withdraw at ¶ 5
(“[A]ll possible issues to be raised in the instant appeal [are] frivolous.”), ¶7
(“I ultimately determined [Appellant’s issues] to be frivolous under controlling
law in light of the existing record.”). In light of Counsel’s otherwise strictly
compliant Anders/Santiago brief, which demonstrates a comprehensive
understanding of the record and controlling law, we deem Counsel’s conclusion
is sufficient and Counsel’s brief compliant with the requirements to withdraw
pursuant to Anders and Santiago. See Commonwealth v. Boodoo, 950
EDA 2018, 2019 WL 2185511, at *2 n.3 (Pa. Super. filed May 21, 2019)
(unpublished mem.) (concluding that although counsel did not use the word
“frivolous” in the Anders/Santiago brief, counsel’s conclusions that he could
not ethically advance the defendant’s claims on appeal, when viewed in light
of counsel’s assertions and conclusions from the application to withdraw that
concluded that all possible issues are frivolous, satisfied the requirements of
Anders and Santiago).
- 11 -