J-S05022-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
STEVE BETTENCOURT
Appellant No. 1213 MDA 2016
Appeal from the Judgment of Sentence April 4, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-003201-2014
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
STEVEN EDWARD BETTENCOURT
Appellant No. 1214 MDA 2016
Appeal from the Judgment of Sentence April 4, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0004543-2015
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
STEVEN EDWARD BETTENCOURT
Appellant No. 1215 MDA 2016
J-S05022-17
Appeal from the Judgment of Sentence April 4, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0000128-2015
BEFORE: BENDER, P.J.E., PANELLA, J., and PLATT, J.
MEMORANDUM BY PANELLA, J. FILED MARCH 10, 2017
In these consolidated appeals, Appellant, Steve Bettencourt, appeals
from the judgment of sentence entered April 4, 2016, in the Court of
Common Pleas of Berks County. In addition, Appellant’s court-appointed
counsel, Roarke Thomas Aston, Esquire, has filed an application to withdraw
as counsel pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After careful
review, we affirm the judgment of sentence and grant counsel’s petition to
withdraw.
The relevant facts and procedural history are as follows. Appellant
entered a negotiated guilty plea at three separate dockets to two counts of
burglary, and one count each of attempted burglary, receiving stolen
property, prohibited offensive weapons, possession of a controlled
substance, and possession of drug paraphernalia.1 In exchange for the plea,
the Commonwealth agreed to drop all other charges stemming from
Appellant’s commission of a series of burglaries. The trial court imposed the
____________________________________________
Retired Senior Judge assigned to Superior Court.
1
18 Pa.C.S.A. §§ 3502(a)(2); 901(a); 3925(a); and 908(a); 35 P.S. § 780-
113(a)(16) and 113(a)(32), respectively.
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agreed-upon aggregate sentence of five to ten years’ incarceration, plus a
total of $27,541.81 in restitution. After the period for timely filing a post-
sentence motion passed, Appellant filed a motion requesting permission to
file a post-sentence motion nunc pro tunc. The court granted Appellant’s
motion, held a hearing on the merits of Appellant’s post-sentence motion,
and ultimately denied Appellant relief. Appellant timely filed a notice of
appeal. Counsel filed a Rule 1925(c)(4) statement of intent to file an Anders
brief in lieu of the court-ordered Rule 1925(b) statement.
The Pennsylvania Supreme Court has previously set forth the steps a
court-appointed attorney must take when seeking to withdraw from
representing an appellant on direct appeal:
[I]n the Anders brief that accompanies court-appointed
counsel’s petition to withdraw, counsel 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
arguably believes 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.
Attorney Aston has substantially complied with all of the requirements
of Santiago. Attorney Aston verified he sent a copy of his Anders brief and
a letter to Appellant, explaining that Appellant may proceed pro se or else
retain new counsel. Attorney Aston attached a copy of the letter to his
petition. See Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super.
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2010); Commonwealth v. Millisock, 873 A.2d 748, 749 (Pa. Super.
2005). Appellant did not file a response.
In his Anders brief, counsel identified two appealable issues. The first
pertains to Appellant’s guilty plea. Appellant contends the court should have
permitted him to withdraw the plea after sentencing.
“We begin with the principle that a defendant has no absolute right to
withdraw a guilty plea; rather, the decision to grant such a motion lies within
the sound discretion of the trial court.” Commonwealth v. Pollard, 832
A.2d 517, 522 (Pa. Super. 2003) (citation omitted). A trial court can only
grant a post-sentence motion to withdraw a guilty plea upon a showing of
prejudice that amounts to “manifest injustice.” Commonwealth v.
Muhammad, 794 A.2d 378, 383 (Pa. Super. 2002) (citation omitted). “A
plea rises to the level of manifest injustice when it was entered into
involuntarily, unknowingly, or unintelligently.” Id. (citation omitted).
In order for a guilty plea to be constitutionally valid, the guilty
plea colloquy must affirmatively show that the defendant
understood what the plea connoted and its consequences. This
determination is to be made by examining the totality of the
circumstances surrounding the entry of the plea. A plea of guilty
will not be deemed invalid if the circumstances surrounding the
entry of the plea disclose that the defendant had a full
understanding of the nature and consequences of his plea and
that he knowingly and voluntarily decided to enter the plea.
Commonwealth v. Rush, 909 A.2d 805, 808 (Pa. Super. 2006) (citation
omitted). “Our law presumes that a defendant who enters a guilty plea was
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aware of what he was doing. He bears the burden of proving otherwise.” Id.
(citation omitted).
Instantly, the trial court recounted the circumstances surrounding the
plea as follows:
This court conducted an oral guilty plea colloquy, and [Appellant]
also signed a written Statement Accompanying [Appellant’s]
Request to Enter a Guilty Plea in each docket; these were
submitted on the record. He acknowledged committing the facts
placed on the record by the Commonwealth corresponding to the
counts to which he entered guilty pleas. He stated that he
understood what he was doing (and this court so found), and
that he was knowingly and voluntarily entering guilty pleas; he
was not coerced into doing so. [Appellant] did not contest that
his prior record score was a 3. He told the court he was satisfied
with the representation provided him by the attorney at the
guilty plea and sentencing hearing. [Appellant] was offered the
opportunity to make a statement to the court prior to
sentencing, and he did. His attorney also provided relevant
information.
Trial Court Opinion, filed 9/12/16, at 2-3.
Appellant did not attempt to withdraw his guilty plea by motion prior
to this appeal. Appellant halfheartedly argued during his post-sentence
motion hearing that he did not fully understand his plea; however, that
contention is belied by the evidence on the record and recounted in the trial
court’s opinion showing otherwise. Appellant carries the burden of
establishing that his guilty plea was not knowing or voluntary in order to
show circumstances that would merit withdrawal. Appellant has failed to do
so, and we find no evidence on the record that would support this position.
Appellant also argued during his post-sentence motion hearing, and
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obliquely on appeal, that the trial court improperly set the award of
restitution. “An appeal from an order of restitution based upon a claim that a
restitution order is unsupported by the record challenges the legality, rather
than the discretionary aspects, of sentencing.” Commonwealth v. Kinnan,
71 A.3d 983, 986 (Pa. Super. 2013) (citation omitted). “The determination
as to whether the trial court imposed an illegal sentence is a question of law;
our standard of review in cases dealing with questions of law is plenary.”
Commonwealth v. Stradley, 50 A.3d 769, 772 (Pa. Super. 2012) (citation
omitted).
While it is true that the practice of plea bargaining is looked
upon with favor, the integrity of our judicial process demands
that certain safeguards be stringently adhered to so that the
resultant plea as entered by a defendant and accepted by the
trial court will always be one made voluntarily and knowingly,
with a full understanding of the consequences to follow. Most
pertinent … is the requirement that when counsel for both sides
enter into a plea agreement, the terms of that agreement must
be stated in open court.
Commonwealth v. Kroh, 654 A.2d 1168, 1172 (Pa. Super. 1995) (citations
omitted). Where the language of a plea agreement sets out its terms with
specificity, the agreement controls. See id.
The record negates any assertion that Appellant’s plea with respect to
restitution was unknowing or involuntary. Appellant and the Commonwealth
agreed to the amount of restitution imposed. See N.T., Guilty Plea and
Sentencing Hearing, 4/4/16 at 18. The Commonwealth provided extensive
information regarding the basis for the restitution, including the value of
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property taken from each burglarized household. See id., at 6-9. Appellant
admitted he was pleading guilty because he committed the stated crimes,
and entered his guilty plea. See id., at 10-11. The Commonwealth dismissed
several charges in light of Appellant entering the guilty plea. See id., at 13-
14. The court read the terms of the plea into the record at the time it
sentenced Appellant and imposed restitution. See id., at 20-23.
Accordingly, to the extent Appellant argues the order of restitution is
not supported by the record, we reject this argument. We find Appellant’s
contentions regarding withdrawal of his guilty plea to be without merit;
consequently, Appellant is due no relief on this claim.
The second issue identified by counsel is a challenge to the
discretionary aspects of the sentence. “The entry of a guilty plea constitutes
a waiver of all defects and defenses except lack of jurisdiction, invalidity of
the plea, and illegality of the sentence.” Commonwealth v. Main, 6 A.3d
1026, 1028 (Pa. Super. 2010) (citation omitted). An appellant may not
challenge the discretionary aspects of his sentence when his negotiated plea
included the terms of his sentence. See Commonwealth v. Baney, 860
A.2d 127, 131 (Pa. Super. 2004).
When a negotiated plea includes sentencing terms (or, more
properly, the Commonwealth’s commitment to recommend a
certain sentence), the defendant’s knowing and voluntary
acceptance of those terms rightly extinguishes the ability to
challenge a sentence the defendant knew was a proper
consequence of his plea.
Commonwealth v. Eisenberg, 98 A.3d 1268, 1276 (Pa. 2014).
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Instantly, the trial court imposed the recommended sentence that
Appellant negotiated with the Commonwealth. Thus, Appellant received
precisely the sentence for which he bargained, and cannot challenge the
discretionary aspects of that sentence. Accordingly, we find Appellant’s
second issue likewise merits no relief.
After examining the issues contained in the Anders brief and
undertaking a thorough and independent review of the record, we agree with
counsel’s assessment that this appeal is wholly frivolous.
Judgment of sentence affirmed. Permission to withdraw as counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/10/2017
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