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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
RONALD J. BRILEY
Appellant No. 443 MDA 2014
Appeal from the Judgment of Sentence entered November 20, 2013
In the Court of Common Pleas of Dauphin County
Criminal Division at No: CP-22-CR-0003888-2011
BEFORE: OTT, STABILE, and JENKINS, JJ.
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 05, 2014
Ronald J. Briley appeals from the judgment of sentence entered
following his guilty plea to murder of the second degree. Appellant’s court-
appointed counsel has filed an Anders1 brief and petitioned to withdraw,
contending that this appeal is wholly frivolous. We affirm the judgment of
sentence and grant the petition to withdraw.
On February 4, 1996, Appellant, then 14 years old, and two others
robbed Sun’s Market, located on South 16th Street in Harrisburg. After
completing the robbery and while fleeing the store, Appellant shot the co-
owner, Chong Kwak, in the head. The resulting injuries rendered Kwak
comatose, a state in which he lingered for nearly 16 years. Appellant was
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1
Anders v. California, 386 U.S. 738 (1967).
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tried as an adult, found guilty of aggravated assault, robbery, criminal
conspiracy, and other charges following a non-jury trial, and sentenced to 20
to 41 years in prison. This Court affirmed the judgment of sentence on
direct appeal. Commonwealth v. Briley, 724 A.2d 952 (Pa. Super. 1998)
(unpublished memorandum).
On June 22, 2011, Kwak died. The cause of death was determined to
be complications from the gunshot wound, and Appellant was charged with
first and second degree murder.2 On September 4, 2013, Appellant entered
an open guilty plea to second degree murder. In exchange for his plea, the
Commonwealth withdrew the charge of first degree murder. Because of his
age at the time of the shooting, Appellant was not subject to a mandatory
sentence of life without parole.3 Rather, he faced 20 years to life in prison.
The trial court later sentenced Appellant to 35 years to life in prison, with
credit for time served and concurrent to his prior sentences. Appellant filed
a post-sentence motion, asking for modification of sentence and withdrawal
of his guilty plea. The trial court denied the motion, and this appeal
followed.
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2
18 Pa.C.S.A. § 2502(a) and (b).
3
See Miller v. Alabama, 132 S. Ct. 2455 (2012) (holding that mandatory
life without parole for juvenile murderers is cruel and unusual punishment);
18 Pa.C.S.A. § 1102.1(c)(1) (“A person who at the time of the commission
of the offense was under 15 years of age shall be sentenced to a term of
imprisonment the minimum of which shall be at least 20 years to life.”).
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On appeal, counsel has directed the Court’s attention to two possibly
meritorious issues: (1) a challenge to the discretionary aspects of
Appellant’s sentence; and (2) a challenge to the trial court’s denial of
Appellant’s post-sentence motion to withdraw his guilty plea.
Before we consider the merits, we must address whether counsel has
complied with the requirements to withdraw from representation under
Anders. See Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa.
2009).
To withdraw under Anders/Santiago, counsel must (1) petition this
Court for leave to withdraw after certifying that a thorough review of the
record indicates the appeal is frivolous; (2) file a brief referring to anything
in the record that might arguably support the appeal; and (3) give the
appellant a copy of the brief and advise the appellant of the right to obtain
new counsel or file a pro se brief to raise any additional points for review.
Commonwealth v. Millisock, 873 A.2d 748, 751 (Pa. Super. 2005).
Additionally, the Anders/Santiago 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.
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Santiago, 978 A.2d at 361.
We find that counsel has complied with Anders and Santiago.
Counsel has petitioned for leave to withdraw, filed a brief that refers us to
anything that might support the appeal, and informed Appellant of his right
to hire a new lawyer or file a pro se response.4 Furthermore, counsel’s brief
meets Santiago’s substantive requirements listed above.
We now conduct an independent review to determine whether this
appeal is indeed frivolous. The first issue identified by counsel is a challenge
to the discretionary aspects of Appellant’s sentence. Appellant asserts that
his sentence is excessive and unreasonable, because the trial court failed to
account for his social changes that occurred during his sentence for robbery
and aggravated assault, i.e., the trial court failed to take into account
mitigating factors.
We review a decision regarding the discretionary aspects of a sentence
for an abuse of discretion. Commonwealth v. Disalvo, 70 A.3d 900, 903
(Pa. Super. 2013).
Assuming, arguendo, that a substantial question exists5 as to the
appropriateness of Appellant’s sentence, the claim is frivolous. A trial court
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4
Appellant has not filed a response.
5
An appellant is entitled to review of the discretionary aspects of a sentence
only if, among other requirements, he raises a substantial question that the
sentence is inappropriate under the Sentencing Code. 42 Pa.C.S.A.
§ 9781(b); Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa.
(Footnote Continued Next Page)
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has discretion to impose a sentence greater than the mandatory minimums
required for juvenile murderers. 18 Pa.C.S.A. § 1102.1(e). Here, the trial
court had the benefit of a presentence investigation report. It addressed the
seriousness of the crime and its impact upon Kwak and his family. See Trial
Court Opinion, 2/11/14, at 4-5. The trial court noted that Appellant, though
an impressionable youth, shot Kwak in the head after he and his
conspirators completed the robbery. Id. The trial court also found
significant Appellant’s numerous, serious disciplinary problems during the
early years of his incarceration.
The second issue identified by counsel is Appellant’s request to
withdraw his guilty plea, first made after the trial court imposed sentence.
On the record following imposition of sentence and in his written post-
sentence motion, Appellant expressed dissatisfaction with the length of his
sentence. See N.T. Sentencing, 11/20/13, at 15-16; Post-Sentence Motion,
11/25/13, ¶ 18.
[P]ost-sentence motions for withdrawal are subject to higher
scrutiny since courts strive to discourage entry of guilty
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(Footnote Continued)
Super. 2014) (en banc). “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.” Buterbaugh, 91 A.3d at 1266 (quotation omitted). A
claim that the trial court failed to take into account mitigating factors does
not raise a substantial question. Disalvo, 70 A.3d at 903; Commonwealth
v. Matroni, 923 A.2d 444, 455 (Pa. Super. 2006).
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pleas as sentence-testing devices. A defendant must
demonstrate that manifest injustice would result if the court
were to deny his post-sentence motion to withdraw a guilty plea.
Manifest injustice may be established if the plea was not
tendered knowingly, intelligently, and voluntarily. In
determining whether a plea is valid, the court must examine the
totality of circumstances surrounding the plea.
Commonwealth v. Kelly, 5 A.3d 370, 377 (Pa. Super. 2010) (internal
quotations, citations, and quotation marks omitted) (emphasis added)
(quotation omitted); see also Commonwealth v. Starr, 301 A.2d 592,
594-95 (Pa. 1973) (requiring proof of manifest injustice for post-sentence
withdrawal of guilty plea, because a more liberal standard “obviously would
be useful as a sentence testing device, and, if permitted with any degree of
liberality, would invite abuse”).
We have thoroughly reviewed the record, and agree with counsel that
Appellant’s challenge is frivolous. At the guilty plea hearing, the trial court,
Commonwealth, and Appellant engaged in an extensive colloquy. See N.T.
Guilty Plea, 9/4/13, at 2-12. In addition to the factual basis for the plea,
Appellant was extensively colloquied on the potential sentence he could
receive. See id. at 6 (informing Appellant that under his open guilty plea,
his sentence was “at least 20 years to life,” and that the minimum
sentence could be anything from 20 years to life). Moreover, in his post-
sentence motion, Appellant did not even attempt to argue that he entered
the plea unknowingly, unintelligently, or involuntarily. Rather, the sole basis
for the withdrawal request is his dissatisfaction with the sentence imposed.
Sentence dissatisfaction is not a valid reason to withdraw a guilty plea post-
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sentence where the defendant is aware of the possible sentencing range.
Commonwealth v. Muhammad, 794 A.2d 378, 383 (Pa. Super. 2002)
(“We note that disappointment by a defendant in the sentence actually
imposed does not represent manifest injustice.”).
Having reviewed the record and applicable law, we find that this
appeal is wholly frivolous. Appellant’s counsel complied with the
requirements to withdraw under Anders/Santiago. Accordingly, we affirm
the judgment of sentence and grant the petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/5/2014
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