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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ALEX HERNANDEZ-ORTIZ,
Appellant No. 688 MDA 2014
Appeal from the Judgment of Sentence Entered March 20, 2014
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0003906-2013
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 22, 2014
Appellant, Alex Hernandez-Ortiz, appeals from the judgment of
sentence of time-served to 23 months’ incarceration, imposed after he pled
guilty to disorderly conduct and simple assault. On appeal, Appellant alleges
that his plea was invalid because he did not understand the immigration
consequences of entering that plea. Additionally, Appellant’s counsel,
Donna M. DeVita, Esq., seeks permission to withdraw her representation of
Appellant pursuant to Anders v. California, 386 U.S. 738 (1967), as
elucidated by our Supreme Court in Commonwealth v. McClendon, 434
A.2d 1185 (Pa. 1981), and amended in 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.
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Appellant pled guilty to the above-stated offenses on March 20, 2014.
He was sentenced that same day to the negotiated, aggregate term of time-
served to 23 months’ incarceration. Appellant did not file a post-sentence
motion.1 On April 15, 2014, Appellant filed a timely, pro se notice of appeal,
stating:
I want to appeal my guilty plea because I did not know it
was going to affect my immigration status. My lawyer did not
tell me that pleading guilty would get me in trouble with
immigration. I am currently in York County Prison.
Notice of Appeal, 4/15/14. The trial court issued an order directing
Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained
of on appeal. In response, Attorney Glick filed a “Statement of Intent to File
Anders/McClendon Brief in Lieu of Statement of Errors Complained of on
Appeal.” On July 2, 2014, the trial court issued a Rule 1925(a) opinion.
On August 11, 2014, Attorney Glick filed a petition to withdraw as
counsel and an Anders brief with this Court. “When faced with a purported
Anders brief, this Court may not review the merits of the underlying issues
without first passing on the request to withdraw.” Commonwealth v.
Rojas, 874 A.2d 638, 639 (Pa. Super. 2005) (quoting Commonwealth v.
Smith, 700 A.2d 1301, 1303 (Pa. Super. 1997)). In Santiago, our
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1
Appellant was represented by George N. Marros, Esq., during the
plea/sentencing hearing, and during the time period within which to file a
timely post-sentence motion. Attorney Glick began representing Appellant
on or about April 24, 2014. See Anders Brief at 5.
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Supreme Court altered the requirements for counsel to withdraw under
Anders. Thus, pursuant to Anders/Santiago, in order to withdraw from
an appeal, counsel now 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.
Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super. 2010) (citing
Santiago, 978 A.2d at 361). “Counsel also must provide a copy of the
Anders brief to his client.” Commonwealth v. Orellana, 86 A.3d 877, 880
(Pa. Super. 2014).
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 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).
Orellana, 86 A.3d at 880. Once we are satisfied that counsel has met these
technical requirements, this Court must then conduct its own review of the
record and independently determine whether the appeal is, in fact, wholly
frivolous. See Daniels, 999 A.2d at 594.
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Instantly, Attorney Glick’s Anders brief provides a summary of the
procedural history and facts of Appellant’s case with citations to the record.
She also includes a discussion of Appellant’s claim that he was unaware of
the immigration consequences of his plea, as well as related issues regarding
Appellant’s understanding of the guilty plea due to his limited fluency in the
English language. Ultimately, Attorney Glick concludes that an appeal on
Appellant’s behalf would be wholly frivolous, and explains her reasons
underlying that determination. She also supports her rationale with citations
to the record, as well as relevant law. Additionally, Attorney Glick attached
to her petition to withdraw a copy of a letter she sent to Appellant advising
him that he has the right to retain new counsel, proceed pro se, and/or raise
any issues he deems worthy of this Court’s examination. Therefore, we
conclude that Attorney Glick has complied with the requirements for
withdrawal. Accordingly, we will now independently review Appellant’s
claim, and also determine whether there are any other issues he could
arguably present on appeal. See Daniels, 999 A.2d at 594.
In her Anders brief, Attorney Glick explains that Appellant wishes to
challenge the validity of his guilty plea on the basis that he did not
understand the immigration consequences of entering that plea.2 In
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2
To the extent Appellant’s notice of appeal suggested that his
plea/sentencing counsel acted ineffectively by not discussing with Appellant
the immigration consequences of his plea, we cannot review such a claim on
direct appeal, as the specific circumstances under which ineffectiveness
(Footnote Continued Next Page)
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concluding this claim is frivolous, Attorney Glick first points out that in the
written plea colloquy, Appellant “acknowledged that he was not a United
States citizen, and he answered ‘yes’ to the question[,] ‘Do you understand
that if you are not a United States citizen, there may be immigration
consequences as a result of your guilty plea?’” Anders Brief at 9. While
citing this question and answer on Appellant’s written plea colloquy, Attorney
Glick nevertheless expresses her “concern that [Appellant’s] command of
English kept him from understanding the immigration consequences of his
guilty plea….” Id. at 9. Attorney Glick also candidly discusses her suspicion
that Appellant’s limited fluency in English may have inhibited his overall
understanding of the guilty plea. Id. at 7-9. However, Attorney Glick
ultimately determines that any issues concerning the validity of Appellant’s
plea, and his understanding of the consequences thereof, are waived due to
Appellant’s failure to file a post-sentence motion seeking to withdraw his
plea on these grounds. Id. at 10.
_______________________
(Footnote Continued)
claims may be addressed on direct appeal are not present in this case. See
Commonwealth v. Holmes, 79 A.3d 562, 576-578 (Pa. 2013) (holding
that the trial court may address claim(s) of ineffectiveness where they are
“both meritorious and apparent from the record so that immediate
consideration and relief is warranted,” or where the appellant’s request for
review of “prolix” ineffectiveness claims is “accompanied by a knowing,
voluntary, and express waiver of PCRA review”; absent these circumstances,
the holding in Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), applies
and claims of ineffective assistance of counsel should be deferred until
collateral review).
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We are compelled to agree. The record confirms that Appellant did not
file a post-sentence motion to withdraw his plea, or raise any issue orally at
the time of his plea/sentencing proceeding. Thus, he has not preserved any
challenge to the validity of his plea for our review.3 See Pa.R.A.P. 302(a)
(“Issues not raised in the lower court are waived and cannot be raised for
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3
We acknowledge that this Court has declined to find waiver on this basis
where the trial court failed to inform the defendant of his post-sentence
rights as required by the Pennsylvania Rules of Criminal Procedure. See
Commonwealth v. Muller, 482 A.2d 1307, 1309 (Pa. Super. 1984). Here,
during the plea/sentencing proceeding, Appellant was not expressly
informed of his right to file a post-sentence motion, or the time limits within
which to do so, as required by Pa.R.Crim.P. 704(C)(3). However, in the
Comment to Rule 704, it states that
[t]he rule permits the use of a written colloquy that is read,
completed, signed by the defendant, and made part of the
record of the sentencing proceeding. This written colloquy must
be supplemented by an on-the-record oral examination to
determine that the defendant has been advised of the applicable
rights enumerated in paragraph (C)(3) and that the defendant
signed the form.
Comment to Rule 704. Here, Appellant completed and signed a written
“Guilty Plea Colloquy and Post-Sentence Rights” form that contained 21
questions explaining, in detail, Appellant’s post-sentence motion and appeal
rights. See Guilty Plea Colloquy, 1/17/14, at 5-7. At the plea/sentencing
hearing, the court stated, “The plea colloquy I’m showing you explains the
rights that you have when you plead guilty and also the rights you have
after you plead guilty and have been sentenced.” N.T., 3/20/14, at 4. The
court then asked if Appellant reviewed that form with his attorney and
signed it, to which Appellant answered, “yes.” Id. We conclude that this
satisfied the dictates of Rule 704. This is especially true where Appellant
filed a timely pro se notice of appeal, thus evincing his understanding of his
post-sentence rights.
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the first time on appeal.”); Commonwealth Lincoln, 72 A.3d 606, 610 (Pa.
Super. 2013) (indicating challenges to the validity of a guilty plea “must be
raised by motion in the trial court in order to be reviewed on direct appeal”)
(quoting Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008)).
Moreover, as Attorney Glick also points out, the record of Appellant’s
plea/sentencing hearing, on its face, does not indicate that Appellant’s plea
was involuntary, unintelligent, or unknowing. Appellant appropriately
answered each question posed to him, and nothing in his responses
indicated that he did not understand the information being provided to him.
He also completed the written guilty plea colloquy and did not express any
confusion regarding that document during the plea/sentencing proceeding.
Additionally, Attorney Glick emphasizes that Appellant received standard
range sentences imposed to run concurrently; thus, there are no issues
involving the legality of his sentence.
Accordingly, based on our independent review of the record, we agree
with Attorney Glick that the issue Appellant seeks to assert is frivolous, and
we ascertain no other non-frivolous issues that he could present on direct
appeal. Thus, we affirm his judgment of sentence and grant counsel’s
petition to withdraw.
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Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/22/2014
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