J-S42002-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALEXIS NICOLE RIVERA :
:
Appellant : No. 394 MDA 2018
Appeal from the Judgment of Sentence January 31, 2018
In the Court of Common Pleas of Franklin County Criminal Division at
No(s): CP-28-CR-0000080-2018
BEFORE: BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.
MEMORANDUM BY BOWES, J.: FILED AUGUST 17, 2018
Alexis Nicole Rivera appeals from the aggregate judgment of sentence
of a $100 fine and court costs imposed after she pled nolo contendere to
unauthorized school bus entry. Appellant’s counsel has filed a petition to
withdraw and a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We affirm the
judgment of sentence and grant counsel’s petition to withdraw.
The Commonwealth charged Appellant with unauthorized entry on a
school bus with refusal to disembark after the bus driver ordered her to do so
in violation of 18 Pa.C.S. § 5517(a) (providing, inter alia, that one who enters
a school bus without prior authorization and refuses to disembark upon the
order of the driver commits a misdemeanor of the third degree).
* Retired Senior Judge assigned to the Superior Court.
J-S42002-18
On January 18, 2018, Appellant appeared before the trial court to enter
a negotiated guilty plea, under which the Commonwealth would forego
confinement, and Appellant would be sentenced to a fine to be determined by
the court.1 When asked during the oral plea colloquy, Appellant indicated that
she had asked the driver if she could talk to him about her daughter being
bullied, that the driver agreed but told her not to cross a certain line, that they
discussed the situation, and that she left the bus after the driver told her to
“shoo” four times. N.T. Plea/Sentencing, 1/31/18, at 6. The trial court
rejected the plea on the basis that Appellant did not admit that her entry on
the bus was unauthorized. Id. at 6-7.
After a recess, Appellant indicated that she wished to change her plea
to nolo contendere. Id. at 8. The trial court explained the difference between
pleas of guilty and nolo contendere, the Commonwealth stated the factual
basis for the plea, and Appellant affirmed her plea of no contest, apologizing
and indicating that she would have instead discussed her concerns with the
principal had she known embarking on the bus was criminal. Id. at 9. The
trial court accepted the nolo contendere plea and imposed a sentence of a
$100 fine and costs. Sentencing Order, 1/31/18.
On February 20, 2018, Appellant filed a motion requesting leave to file
a post-sentence motion nunc pro tunc. Therein she indicated that she wished
____________________________________________
1 The maximum sentence Appellant faced was one year imprisonment and a
fine of $2,500. Written Plea Colloquy, 1/31/18, at 2.
-2-
J-S42002-18
to withdraw her plea, had called counsel at the wrong telephone number on
the last day for filing a timely post-sentence motion, and did not reach her
counsel about her request until the deadline has passed the following day.
Motion for Permission to File a Post-Sentence Motion Nunc Pro Tunc, 2/20/18,
at ¶¶ 2, 8. On February 22, 2018, the trial court entered an order denying
Appellant’s motion, holding that Appellant had failed to allege extraordinary
circumstances warranting nunc pro tunc relief. Order, 2/22/18, at 2 (pages
unnumbered).
Appellant filed a timely notice of appeal on March 1, 2018. The trial
court ordered Appellant to file a concise statement of errors complained of on
appeal, and in response Appellant’s counsel, pursuant to Pa.R.A.P. 1925(c)(4),
instead filed a statement of intent to file an Anders brief. Thereafter, the trial
court issued a statement pursuant to Pa.R.A.P. 1925(a) indicating that it could
not author an opinion because no errors had been specified.
In this Court, Appellant’s counsel filed both an Anders brief and a
petition to withdraw as counsel. Accordingly, the following principles guide
our review of this matter.
Direct appeal counsel seeking to withdraw under Anders
must file a petition averring that, after a conscientious
examination of the record, counsel finds the appeal to be wholly
frivolous. Counsel must also file an Anders brief setting forth
issues that might arguably support the appeal along with any
other issues necessary for the effective appellate presentation
thereof . . . .
Anders counsel must also provide a copy of the Anders
petition and brief to the appellant, advising the appellant of the
-3-
J-S42002-18
right to retain new counsel, proceed pro se or raise any additional
points worthy of this Court’s attention.
If counsel does not fulfill the aforesaid technical
requirements of Anders, this Court will deny the petition to
withdraw and remand the case with appropriate instructions (e.g.,
directing counsel either to comply with Anders or file an
advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
petition and brief satisfy Anders, we will then undertake our own
review of the appeal to determine if it is wholly frivolous. If the
appeal is frivolous, we will grant the withdrawal petition and affirm
the judgment of sentence. However, if there are non-frivolous
issues, we will deny the petition and remand for the filing of an
advocate’s brief.
Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa.Super. 2007)
(citations omitted). Our Supreme Court has clarified portions of the Anders
procedure:
[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 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, supra at 361.
Based upon our examination of counsel’s petition to withdraw and
Anders brief, we conclude that counsel has complied with the technical
requirements set forth above.2 Therefore, we now proceed “‘to make a full
examination of the proceedings and make an independent judgment to decide
____________________________________________
2 Appellant did not file a response to counsel’s petition.
-4-
J-S42002-18
whether the appeal is in fact wholly frivolous.’” Commonwealth v. Flowers,
113 A.3d 1246, 1249 (Pa.Super. 2015) (quoting Santiago, supra at 354 n.5).
Counsel identified two issues that arguably support this appeal: (1) that
the trial court abused its discretion in denying her motion for leave to file a
post-sentence motion nunc pro tunc, and (2) that her plea was not knowing,
intelligent, and voluntary. Anders brief at 9.
We first consider whether Appellant has any viable claim regarding the
trial court’s denial of her motion to file a post-sentence nunc pro tunc. This
Court has held that “if no appeal had been taken, within 30 days after the
imposition of sentence, the trial court has the discretion to grant a request to
file a post-sentence motion nunc pro tunc.” Commonwealth v. Dreves,
839 A.2d 1122, 1128 (Pa.Super. 2003) (en banc). “[T]he decision to allow
the filing of a post-trial motion nunc pro tunc is vested in the discretion of the
trial court and that we will not reverse unless the trial court abused its
discretion.” Id. “[A]n abuse of discretion is not merely an error of judgment,
but is rather the overriding or misapplication of the law, or the exercise of
judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-
will[,] or partiality, as shown by the evidence or the record.” Commonwealth
v. Bullock, 170 A.3d 1109, 1117 (Pa.Super. 2017) (internal quotation marks
omitted).
We observe that “[t]he request for nunc pro tunc relief is separate and
distinct from the merits of the underlying post-sentence motion.” Id. at 1128-
-5-
J-S42002-18
29. “[I]n order for a petition to file a post-sentence motion nunc pro tunc to
be granted, a defendant must, within 30 days after the imposition of sentence,
demonstrate an extraordinary circumstance which excuses the tardiness.” Id.
at 1128. On review of the denial of the request, the “pertinent question” for
this Court is whether Appellant was denied her post-sentence rights “by
extraordinary circumstances not of [her own] doing[.]” Commonwealth v.
White, 806 A.2d 45, 46 (Pa.Super. 2002).
Our independent review of the record reveals no abuse of discretion by
the trial court in concluding that Appellant failed to allege the requisite
extraordinary circumstances. Appellant was specifically informed that she had
ten days after the imposition of her sentence to file a motion to withdraw her
plea. Written Plea Colloquy, 1/31/18, at 4. She waited until the last day to
timely file a post-sentence motion to contact her attorney to make her
request.3 When she attempted to make her eleventh-hour request, she used
an incorrect number when she called her attorney. Motion for Permission to
File a Post-Sentence Motion Nunc Pro Tunc, 2/20/18, at ¶ 8.
This is not a case in which she was not advised of the time constraints
for seeking post-sentence relief, or that she made a timely request that was
____________________________________________
3 The tenth day after the imposition of her sentence was Saturday, February
10, 2018. Accordingly, her post-sentence motion deadline extended to
Monday, February 12, 2018, see 1 Pa.C.S. § 1908, which was the day she
called her attorney. Thus, Appellant waited more than ten days after the
imposition of her sentence to attempt to contact her attorney.
-6-
J-S42002-18
ignored by counsel. Rather, the untimeliness of her motion was the result of
her own lack of attentiveness and care. Compare Commonwealth v. Stock,
679 A.2d 760, 761 (Pa. 1996) (holding nunc pro tunc relief was warranted
where counsel failed to file an appeal although counsel was aware, at the
latest, thirteen days before the filing deadline), with White, supra at 47
(finding no abuse of discretion in the denial of nunc pro tunc relief where there
was no indication that the failure to file a timely appeal “was due to fraud or
a breakdown of the Court system or that he acted promptly to seek relief from
the entry of his guilty pleas”).
Thus, we cannot conclude that the trial court’s finding that the facts
alleged by Appellant failed to demonstrate extraordinary circumstances was
the result of an error of law or bias, prejudice, ill-will or manifest
unreasonableness. Accordingly, we agree with counsel that Appellant’s claim
that the trial court abused its discretion in denying her motion for leave to file
a post-sentence motion nunc pro tunc is meritless.
The second issue identified by counsel is whether Appellant’s plea was
unknowing, unintelligent, and involuntary. “A defendant wishing to challenge
the voluntariness of a guilty plea on direct appeal must either object during
the plea colloquy or file a motion to withdraw the plea within ten days of
sentencing. Failure to employ either measure results in waiver.”
Commonwealth v. Lincoln, 72 A.3d 606, 609-10 (Pa.Super. 2013).
-7-
J-S42002-18
Our review of the record does not show any indication that Appellant
challenged the voluntariness of her plea at the plea/sentencing hearing, and
we have already established that she did not raise the claim in a timely post-
sentence motion. Therefore, the claim is waived, and raising it in this appeal
would be frivolous. See, e.g., Commonwealth v. Cook, 175 A.3d 345, 349
(Pa.Super. 2017).
In any event, the transcript shows that Appellant’s plea was in fact
voluntarily entered. The following legal principles apply.
In order to ascertain whether a plea of nolo contendere has
been tendered by a defendant knowingly and voluntarily,
[Pa.R.Crim.P. 590] requires that the trial judge inquire at a
minimum into the following six (6) areas:
(1) Does the defendant understand the nature of the
charges to which he or she is pleading guilty or nolo
contendere?
(2) Is there a factual basis for the plea?
(3) Does the defendant understand that he or she has
the right to trial by jury?
(4) Does the defendant understand that he or she is
presumed innocent until found guilty?
(5) Is the defendant aware of the permissible range
of sentences and/or fines for the offenses charged?
(6) Is the defendant aware that the judge is not bound
by the terms of any plea agreement tendered unless
the judge accepts such agreement?
Additionally, when a plea of nolo contendere includes a plea
agreement, the judge must conduct a separate inquiry on the
record to determine whether the defendant understands and
accepts the terms of the plea agreement. In determining whether
-8-
J-S42002-18
a plea was voluntarily entered into, an examination of the totality
of the circumstances is warranted.
Commonwealth v. Lewis, 791 A.2d 1227, 1231 (Pa.Super. 2002) (citations
and quotation marks omitted). Moreover, “[o]ur law presumes that a
defendant who enters a guilty plea was aware of what he was doing. He bears
the burden of proving otherwise.” Commonwealth v. Pollard, 832 A.2d
517, 523 (Pa.Super. 2003) (citations omitted).
The trial court made a nearly-verbatim inquiry on the record about the
six areas mandated by Pa.R.Crim.P. 590, and Appellant indicated, under oath,
that she understood. See N.T. Plea/Sentencing, 1/31/18, at 4-5. The court
additionally questioned whether Appellant had sufficient time to discuss her
plea with her attorney, whether she was promised anything not included in
the plea agreement, and whether she was threatened or coerced into entering
her plea. Id. at 5. Appellant indicated that she had sufficient time, and that
she was not promised anything additional or coerced into entering a plea
against her will. Id.
Once the court properly rejected the guilty plea and Appellant indicated
her desire to plead nolo contendere, the trial court confirmed Appellant’s
understanding of the differences between the pleas, informed Appellant that
she would still be convicted of the offense, indicated that it would impose the
agreed-upon sentence, asked Appellant if she had any questions, obtained the
factual basis for the plea from the Commonwealth, assured that the written
plea agreement that Appellant had previously executed was modified to show
-9-
J-S42002-18
that her plea was nolo contendere rather than guilty, and imposed the
sentence to which Appellant agreed. Id. at 8-9. Appellant’s responses to the
trial court’s queries unambiguously indicated her understanding. Id. The trial
court then again inquired whether Appellant had any questions, and she stated
that she did not. Id. at 10.
Thus, the totality of the circumstances evidence that the trial court made
every relevant inquiry into Appellant’s knowledge and understanding of the
terms and import of her plea. Moreover, Appellant’s statements at the plea
hearing, made under oath, confirm that her plea was voluntary. Pollard,
supra at 523 (“The longstanding rule of Pennsylvania law is that a defendant
may not challenge his guilty plea by asserting that he lied while under
oath[.]”). Therefore, we agree with counsel that the claim that Appellant’s
plea was involuntary is meritless.
Further, we have conducted “a full examination of the proceedings” and
conclude that “the appeal is in fact wholly frivolous.” Flowers, 113 A.3d at
1248. Accordingly, we affirm the judgment of sentence and grant counsel's
petition to withdraw.
- 10 -
J-S42002-18
Judgment of sentence affirmed. Petition of Kevin M. Taccino, Esquire,
to withdraw as counsel is granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/17/18
- 11 -