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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA 1 IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSE MANUEL RIVERA-VAZQUEZ
Appellant No. 1136 MDA 2016
Appeal from the Judgment of Sentence June 10, 2016
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0001286-2016
CP-36-CR-0001287-2016
CP-36-CR-0003442-2015
CP-36-CR-0003451-2015
CP-36-CR-0005007-2015
BEFORE: BOWES, J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED APRIL 04, 2017
Jose Rivera -Vazquez appeals from the judgment of sentence, entered
in the Court of Common Pleas of Lancaster County, following his conviction
of rape -forcible compulsion, statutory sexual assault, aggravated indecent
assault, involuntary deviate sexual intercourse, corruption of minors and
various related charges. Counsel has filed a brief and a motion for leave to
withdraw in accordance with Anders v. California, 386 U.S. 738 (1969),
and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After our
review, we grant counsel's petition for leave to withdraw and affirm Rivera-
Vasquez's judgment of sentence.
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Pursuant to a negotiated plea agreement, the Honorable Dennis E.
Reinaker sentenced Rivera -Vazquez to fifteen to forty years' imprisonment.'
No post -sentence motions were filed. Diana C. Kelleher, Esquire, counsel for
Rivera -Vazquez, filed a notice of appeal, and, thereafter, a Statement of
Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(b), claiming that
Rivera-Vazquez's plea was unknowing and involuntary because he does not
speak or write English. Rivera -Vazquez acknowledges this claim was not
raised in a post -sentence motion or in a motion to withdraw his plea. See
Rule 1925(b) Statement, at 1 n.1. However, Rivera -Vasquez asserts that he
asked plea counsel, Michael Marinaro, Esquire, to withdraw his plea, but plea
counsel did not do so.
On December 19, 2016, Attorney Kelleher filed a motion to withdraw
pursuant to Anders, supra, and Commonwealth v. Santiago, 978 A.2d
349 (Pa. 2009).
Before addressing the merits of Rivera-Vazquez's underlying issue, we
must first pass on counsel's petition to withdraw. Commonwealth v.
Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc). Prior to
withdrawing as counsel on a direct appeal under Anders, counsel must file a
brief that meets the requirements established by our Supreme Court in
Santiago. The brief must:
' At the guilty plea colloquy, the court informed Rivera -Vasquez that he
faced up to 344 years in prison and a maximum fine of $461,000.00.
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(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. Counsel must also provide the appellant with a
copy of the Anders brief, together with 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).
Here, counsel has substantially complied with these requirements.
See Motion to Withdraw, 12/19/16; Letter to Defendant, 12/19/16; Anders
Brief, 12/19/16. We therefore proceed to an independent review of the
record to determine if, in fact, Rivera-Vasquez's claim is frivolous.
Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa. Super. 2006).
The guilty plea/sentencing transcript indicates that Isabel Waplinger,
an interpreter, translated the proceedings from English into Spanish and
from Spanish into English during the proceedings. See N.T. Guilty
Plea/Sentencing, 6/10/16, at 2. The record, therefore, belies Rivera-
Vazquez's claim. Additionally, with respect to his claim that plea counsel did
not file a petition to withdraw the guilty plea, we point out that this
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challenge to counsel's ineffectiveness is not reviewable on direct appeal.
See Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002). Further,
there is no indication that Rivera -Vasquez waived his right to collateral relief.
See Commonwealth v. Barnett, 121 A.3d 534, 539 (Pa. Super. 2015)
("ineffectiveness claims cannot be addressed on direct appeal absent a
waiver of PCRA rights").
We agree with counsel that Rivera-Vasquez's claim is wholly frivolous.
Moreover, our independent review of the record has revealed no other
preserved issues of arguable merit. Accordingly, we affirm the judgment of
sentence and grant counsel's petition to withdraw granted.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 4/4/2017
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