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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
FRANCIS GONZALEZ,
Appellant No. 2538 EDA 2014
Appeal from the Judgment of Sentence August 22, 2014
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0002218-2013
BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED APRIL 01, 2015
Appellant, Francis Gonzalez, appeals from the judgment of sentence
imposed following his negotiated nolo contendere plea to rape of a child and
unlawful contact with a minor. Counsel has filed an Anders1 brief, and
requested permission to withdraw from further representation. We affirm
Appellant’s judgment of sentence, and grant counsel’s petition to withdraw.
Appellant was arrested on December 17, 2012, and charged with rape
of a child and nine other related offenses in connection with a sexual assault
on the then-eleven years old daughter of his girlfriend (and mother of their
child). Appellant was thirty-five. At a preliminary hearing on February 21,
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*
Retired Senior Judge assigned to the Superior Court.
1
See Anders v. California, 386 U.S. 738 (1967).
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2012, two charges, recklessly endangering another person and endangering
the welfare of a child, were dismissed.
On the second day of jury selection for a trial on the remaining
charges, May 14, 2014, Appellant agreed to a negotiated plea of nolo
contendere to rape of a child and unlawful contact with a minor. As part of
the arrangement, the Commonwealth agreed to nolle pros the rest of the
charges. Appellant signed a written nolo plea colloquy and the trial court
accepted the plea after it conducted an extensive on-the-record oral
colloquy. (See N.T. Hearing, 5/14/14, at 5-16). Appellant waived a pre-
sentence investigation and mental health evaluation.
In a bifurcated sentencing process, the trial court immediately
imposed the agreed sentence of not less than six nor more than twelve
years’ incarceration.2 On August 22, 2014, after a Megan’s Law assessment
hearing at which the court determined Appellant to be a sexually violent
predator, he received an additional sentence of ten years’ supervised
probation, consecutive to the sentence of incarceration.
No post-sentence motion was filed, but appointed counsel timely filed
a notice of appeal. In response to the trial court’s order for a Pennsylvania
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2
Appellant had a prior record score of five; the offense gravity score was
fourteen; Appellant was not RRRI eligible; he received credit for time served.
(See N.T. Hearing, at 17).
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Rule of Appellate Procedure 1925(b) statement of errors, counsel filed a Rule
1925(c)(4) notice of intent to file an Anders brief.3 See Pa.R.A.P. 1925.
The Anders brief raises one hybrid question for our review:
Whether there are any issues of arguable merit that could
be raised on direct appeal presently before this Court, and
whether the appeal is wholly frivolous?
(Anders Brief, at 2).
Before addressing the merits of the underlying issues presented for
our review, we first must review counsel’s petition to withdraw. See
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en
banc). Counsel seeking to withdraw on a direct appeal under Anders,
supra, must file a brief that meets the requirements established by our
Supreme Court in Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa.
2009). 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 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
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3
The trial court did not file a Rule 1925(a) opinion, citing Commonwealth
v. McBride, 957 A.2d 752, 758 (Pa. Super. 2008). (See Order to Transmit
Record, 10/09/14).
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record, controlling case law, and/or statutes on point that have
led to the conclusion that the appeal is frivolous.
Id. at 361.
Counsel also must provide a copy of the Anders brief to the appellant,
and a letter that advises the appellant of his or her 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, 936 A.2d 40
(Pa. 2007) (citation omitted); accord Commonwealth v. Daniels, 999
A.2d 590, 594 (Pa. Super. 2010); see also Commonwealth v. Millisock,
873 A.2d 748, 751–52 (Pa. Super. 2005) (requiring counsel to attach to
petition to withdraw copy of letter sent to client advising of his rights).
Here, we conclude on review that counsel’s petition to withdraw and
the accompanying brief reveals that he has substantially complied with the
procedural requirements of Santiago. Counsel has provided a factual and
procedural history detailing the events relevant to the instant appeal in the
brief, along with appropriate citations. Counsel notes several claims and
addresses the applicable facts and principles of law, ultimately concluding
that the claims would be wholly frivolous. (See Anders Brief, at 5, 19).
Additionally, counsel has sent a copy of the Anders brief to Appellant
and a letter informing him that he has the right to hire a new attorney, to
proceed with an appeal on his own, and to raise any additional points that he
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thinks are worthy of this Court’s attention.4 Accordingly, counsel has
substantially complied with the requirements to withdraw.
We now conduct an independent review of the record to determine
whether the issues identified in this appeal are, as counsel claims, wholly
frivolous, or if there are any other meritorious issues present in this case.
See Santiago, supra at 354 (quoting Anders, at 744).
Preliminarily, we note that it is well established that a plea of nolo
contendere is treated as a guilty plea in terms of its effect upon a given
case. See Commonwealth v. V.G., 9 A.3d 222, 226 (Pa. Super. 2010).
Furthermore, “[s]ettled Pennsylvania law makes clear that by entering a
guilty plea, the defendant waives his right to challenge on direct appeal all
non[-]jurisdictional defects except the legality of the sentence and the
validity of the plea.” Commonwealth v. Lincoln, 72 A.3d 606, 609 (Pa.
Super. 2013), appeal denied, 87 A.3d 319 (Pa. 2014) (citation omitted).
Accordingly, here, Appellant’s nolo plea waived any challenges on
appeal except to jurisdiction, legality of sentence and validity of the plea.
There is no dispute about jurisdiction. The Anders brief raises, but correctly
rejects, a challenge to the legality of the sentence. (See Anders Brief, at 7-
11). There is no basis in the record for such a claim.
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4
Appellant has not responded to the notice counsel was filing an Anders
brief.
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Next, the brief raises the issue of a challenge to the validity of the
plea. (See Anders Brief, at 11-16). Here, again, however, there is no basis
in the record for the claim.5 Furthermore, a challenge to the validity of the
plea would be waived unless it was properly raised with the trial court. See
Pa.R.Crim.P. 720(B)(1)(a)(i); see also Commonwealth v. D'Collanfield,
805 A.2d 1244, 1246 (Pa. Super. 2002) (finding waiver where appellant
failed to challenge guilty plea in sentence colloquy, at sentencing hearing or
in post-sentence motion).
Moreover, on review, we find that Appellant’s principal objection at the
hearing to the plea and sentencing process was not the invalidity of the plea,
or the sentence, which he acknowledged was lenient. (See N.T. Hearing, at
22). Rather, in a somewhat rambling and unfocussed statement, Appellant
complained that, in his perception, the plea and sentencing would have an
adverse effect on his ability to have visitation with his son. (See id. at 19)
(“[T]his is going to affect my son, probably until he’s like 18, right?”); (see
also id. at 18-23).
“The law does not require that appellant be pleased with the outcome
of his decision to enter a plea of guilty[.]” Commonwealth v. Bedell, 954
A.2d 1209, 1212 (Pa. Super. 2008), appeal denied, 964 A.2d 893 (Pa. 2009)
(citation and internal quotation marks omitted).
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5
We note that counsel raises this “possible claim in an abundance of
caution[.]” (Anders Brief, at 11).
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Here, on independent review, we agree with counsel’s conclusion that
there is no basis to conclude Appellant’s plea was anything but knowing
voluntary, and intelligent, as found by the trial court. (See N.T. Hearing, at
15). To the contrary, the colloquy between Appellant and the trial court
confirms that he was well aware that his negotiated nolo plea would result in
a greatly reduced sentence from the maximum of sixty years’ incarceration
he was otherwise facing. (See id. at 5-7, 22).
Finally, referring to Appellant’s colloquy with the trial court, the brief
cites three more possible issues for Appellant: first, disputes with trial (plea)
counsel; second, “systemic” complaints about the perceived unfairness of his
prosecution, the law, and the selected jury; and third, concerns about
collateral consequences. (Anders Brief, at 16; see, generally, id. at 16-
19).
Preliminarily, on independent review, we find nothing in the record,
other than Appellant’s generalized dissatisfaction with the entire plea
process, to support a claim of dispute with plea counsel. In any event, it is
well-settled that claims challenging the effectiveness of counsel are to be
deferred until collateral review. See Commonwealth v. Grant, 813 A.2d
726, 738 (Pa. 2002) (“We now hold that, as a general rule, a petitioner
should wait to raise claims of ineffective assistance of trial counsel until
collateral review.”).
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Neither of the two remaining issues asserted in the brief merits relief.
First, because neither claim involves jurisdiction, legality of sentence, or the
validity of the plea, they are waived. See Lincoln, supra at 609.
Moreover, Appellant’s generalized dissatisfaction with the plea process does
not present a meritorious issue. See Bedell, supra at 1212. Finally,
collateral consequences, such as sexual offender registration (or possible
restrictions on visitation), do not undermine the validity of the nolo
contendere plea.6 See Commonwealth v. Lippert, 85 A.3d 1095, 1100
(Pa. Super. 2014), appeal denied, 95 A.3d 277 (Pa. 2014).
On independent review, we discern no other claims which would merit
relief.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/1/2015
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6
We note in particular that ignorance of collateral consequences does not
invalidate a plea. See Lippert, supra at 1100. Here, by contrast,
Appellant’s lengthy statement to the trial court before sentencing confirms
that he was well aware of the possible collateral consequences of his plea.
(See N.T. Hearing, at 18-23).
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Com. v. Gonzalez, F.
Combined Opinion