Com. v. Bautista, L.

J-S15027-23


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 LUIS ANGEL BAUTISTA                      :
                                          :
                    Appellant             :   No. 1393 MDA 2022

    Appeal from the Judgment of Sentence Entered September 1, 2022
              In the Court of Common Pleas of Berks County
            Criminal Division at No.: CP-06-CR-0003613-2021


BEFORE: BOWES, J., STABILE, J., and SULLIVAN, J.

MEMORANDUM BY STABILE, J.:                       FILED OCTOBER 17, 2023

      Appellant Luis Angel Bautista appeals from the September 1, 2022

judgment of sentence entered in the Court of Common Pleas of Berks County

(“trial court”), following his negotiated guilty plea to one count of rape of a

child, 18 Pa.C.S.A. § 3121(c). His counsel has filed a brief and an application

to withdraw pursuant to Anders v. California, 386 U.S. 738 (1969), and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we

affirm the judgment of sentence and grant counsel’s application to withdraw.

      The facts and procedural history of this case are undisputed. Briefly, in

connection with the sexual abuse of a twelve-year-old girl that resulted in

pregnancy and the delivery of a baby boy, Appellant was charged with multiple

sex crimes. On May 12, 2022, Appellant entered into a negotiated guilty plea

to rape of child, in exchange for a sentence of 8 to 20 years’ incarceration,

followed by 3 years’ probation, and the dismissal of the remaining charges.
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On September 1, 2022, the trial court sentenced Appellant consistent with the

negotiated guilty plea. Separately, the trial court determined Appellant not to

be a sexually violent predator.1 On September 26, 2022, Appellant appealed

to this Court. The trial court directed Appellant to file a Pa.R.A.P. 1925(b)

statement of errors complained of on appeal. Instead of the court-ordered

Rule 1925(b) statement, Appellant’s counsel filed a statement of intent to file

an Anders brief under Pa.R.A.P. 1925(c)(4).2

       On February 22, 2023, Appellant’s counsel filed in this Court an

application to withdraw as counsel and filed an Anders brief, wherein counsel

for the first time claimed that Appellant’s negotiated plea was involuntary and

unknowing. Anders Brief at 5. In response, the trial court issued a brief Rule

1925(a) statement.



____________________________________________


1 On September 21, 2022, Appellant filed a “Motion for Judgment on the
Pliding [(sic)] Short Form,” that the trial court dismissed as untimely on
September 30, 2022. Therein, however, Appellant did not challenge—or
otherwise seek to withdraw—his negotiated guilty plea.
2 Rule 1925(c)(4) provides:


       In a criminal case, counsel may file of record and serve on the
       judge a statement of intent to file an [Anders] brief in lieu of filing
       a Statement. If, upon review of the [Anders] brief, the appellate
       court believes that there are arguably meritorious issues for
       review, those issues will not be waived; instead, the appellate
       court may remand for the filing of a Statement, a supplemental
       opinion pursuant to Rule 1925(a), or both. Upon remand, the trial
       court may, but is not required to, replace appellant’s counsel.

Pa.R.A.P. 1925(c)(4).


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J-S15027-23



      When presented with an Anders brief, this Court may not review the

merits of the underlying issues without first examining counsel’s petition to

withdraw.    Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.

2007) (en banc).    It is well-established that, in requesting a withdrawal,

counsel must satisfy the following procedural requirements: 1) petition the

court for leave to withdraw stating that, after making a conscientious

examination of the record, counsel has determined that the appeal would be

frivolous; 2) provide a copy of the brief to the defendant; and 3) advise the

defendant that he or she has the right to retain private counsel, proceed pro

se or raise additional arguments that the defendant considers worthy of the

court’s addition. Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.

2009).

      Instantly, counsel’s application to withdraw from representation

provides that counsel reviewed the record and concluded that the appeal is

frivolous.   Furthermore, counsel notified Appellant that he was seeking

permission to withdraw and provided Appellant with copies of the petition to

withdraw and his Anders brief. Counsel also advised Appellant of his right to

retain new counsel, proceed pro se, or raise any additional points he deems

worthy of this Court’s attention. Accordingly, we conclude that counsel has

satisfied the procedural requirements of Anders.

      We next must determine whether counsel’s Anders brief complies with

the substantive requirements of Santiago, wherein our Supreme Court held:




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J-S15027-23


      [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, 978 A.2d at 361. Here, our review of counsel’s brief indicates that

he has complied with the briefing requirements of Santiago. We, therefore,

conclude   that   counsel    has   satisfied   the   minimum   requirements   of

Anders/Santiago.

      Once counsel has met his obligations, “it then becomes the responsibility

of the reviewing court to make a full examination of the proceedings and make

an independent judgment to decide whether the appeal is in fact wholly

frivolous.” Santiago, 978 A.2d at 355 n.5.

      We now turn to the merits of Appellant’s appeal, wherein he challenges

the validity of his guilty plea.   This issue, however, is waived. Appellant did

not object to the guilty plea during the plea colloquy or file any post-sentence

motions seeking to withdraw his guilty plea.           See Commonwealth v.

Lincoln, 72 A.3d 606, 610-11 (Pa. Super. 2013) (holding defendant failed to

preserve challenge to validity of guilty plea where he did not object during

plea colloquy or file post-sentence motion to withdraw plea), appeal denied,

87 A.3d 319 (Pa. 2014); Commonwealth v. D’Collanfield, 805 A.2d 1244,

1246 (Pa. Super. 2002) (noting that the appellant’s claim challenging the

validity of guilty plea was waived because the appellant neither objected

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J-S15027-23



during colloquy nor challenged it in a post-sentence motion); see also

Pa.R.Crim.P.      720(A)(1),      (B)(1)(a)(i)   (stating   post-sentence   motion

challenging validity of plea of guilty or nolo contendere shall be filed no later

than 10 days after imposition of sentence); Pa.R.A.P. 302(a) (“Issues not

raised in the trial court are waived and cannot be raised for the first time on

appeal”). Moreover, historically, Pennsylvania courts adhere to this waiver

principle because “[i]t is for the court which accepted the plea to consider and

correct, in the first instance, any error which may have been committed.”

Commonwealth v. Roberts, [] 352 A.2d 140, 141 (Pa. Super. 1975)

(holding that common and previously condoned mistake of attacking guilty

plea on direct appeal without first filing petition to withdraw plea with trial

court is procedural error resulting in waiver; stating, “(t)he swift and orderly

administration of criminal justice requires that lower courts be given the

opportunity to rectify their errors before they are considered on appeal”;

“Strict adherence to this procedure could, indeed, preclude an otherwise

costly, time consuming, and unnecessary appeal to this court”). Accordingly,

Appellant is not entitled to relief.3

       Separately, based upon our independent review of the record, as

detailed above, we agree with counsel that Appellant has not raised any non-

frivolous matters herein. We, therefore, affirm the judgment of sentence and

grant counsel’s application to withdraw.

____________________________________________


3 We decline to opine on the merits of the issue asserted on appeal.


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J-S15027-23



     Judgment of sentence affirmed. Application to withdraw granted.
Judgment Entered.




Benjamin D. Kohler, Esq.
Prothonotary



Date: 10/17/2023




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