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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
v. :
:
MICHAEL DIGANGI, :
:
Appellant : No. 3086 EDA 2016
Appeal from the Judgment of Sentence August 15, 2016
in the Court of Common Pleas of Delaware County,
Criminal Division, No(s): CP-23-CR-0004369-2016
BEFORE: OLSON, SOLANO and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: Filed May 19, 2017
Michael DiGangi (“DiGangi”) appeals from the judgment of sentence
entered following guilty plea to driving under the influence of alcohol
(“DUI”)-general impairment.1 Counsel for DiGangi (“Counsel”) has filed an
Application to Withdraw from representation and a brief pursuant to Anders
v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009) (“the Anders brief”). We grant Counsel’s Application to
withdraw and affirm DiGangi’s judgment of sentence.
On October 16, 2014, Digangi was charged with DUI-general
impairment and a second, related offense. On August 15, 2016, DiGangi
entered a negotiated guilty plea to DUI-general impairment, and the
Commonwealth withdrew the second DUI charge. As part of his plea
1
See 75 Pa.C.S.A. § 3802(a)(1).
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agreement, the trial court sentenced DiGangi to six months in jail, with
DiGangi to be paroled immediately. The trial court further ordered that
DiGangi undergo a drug and alcohol evaluation and comply with the rules
and regulations of Adult Probation and Parole. Finally, the trial court
imposed a $200 fine.
DiGangi filed a post-sentence Motion to withdraw his guilty plea,
claiming that he had failed to tender a knowing, intelligent and voluntary
plea. On August 25, 2016, the trial court denied DiGangi’s Motion, after
which DiGangi filed the instant timely appeal. The trial court directed
DiGangi to file a Pa.R.A.P. 1925(b) Concise Statement of matters complained
of on appeal. Counsel instead informed the trial court that he intended to
file an Anders brief and withdraw from representation.
“This Court must first pass upon counsel’s petition to withdraw before
reviewing the merits of the underlying issues presented by [an appellant].”
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:
(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
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(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 also must provide a copy
of the Anders brief to his client. Attending the brief must be a
letter that advises the client of his 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, 594 Pa. 704, 936 A.2d
40 (2007).
Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014).
After determining that counsel has satisfied these technical requirements of
Anders and Santiago, this Court must then “conduct an independent
review of the record to discern if there are any additional, non-frivolous
issues overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d
1246, 1250 (Pa. Super. 2015) (citations and footnote omitted).
Here, Counsel’s Anders brief complies with the above-stated
requirements. Namely, Counsel included a summary of the relevant factual
and procedural history; referred to portions of the record that could arguably
support DiGangi’s claim; and set forth his conclusion that DiGangi’s appeal is
frivolous. Counsel also explained his reasons for reaching that
determination, and supported his rationale with citations to the record and
pertinent legal authority. Counsel’s Application to Withdraw explains that
Counsel has reviewed the record and believes that there are no non-frivolous
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issues that could be raised, and that Counsel forwarded to DiGangi a letter
advising DiGangi of the rights enumerated in Nischan and a copy of the
Anders brief. Counsel attached a copy of the letter to his Application to
Withdraw. Accordingly, Counsel has complied with the technical
requirements for withdrawal. We next determine whether DiGangi’s appeal
is frivolous.
The Anders brief presents the following claim for our review:
“Whether [] Di[G]angi entered a knowing, voluntary and intelligent guilty
plea?” Anders Brief at 1. Specifically, DiGangi claims that the [trial]
[j]udge should have inquired further into [DiGangi’s] mental condition[,] and
whether it may have affected his ability to enter a knowing, voluntary and
intelligent plea.” Id. at 4. DiGangi asserts that statements made during the
guilty plea hearing should have alerted the trial court to DiGangi’s mental
condition, and required the trial court to conduct a further inquiry. Id. at
10.
This Court has explained that,
after the court has imposed a sentence, a defendant can
withdraw his guilty plea only where necessary to correct a
manifest injustice. Post-sentence motions for withdrawal are
subject to higher scrutiny since courts strive to discourage the
entry of guilty pleas as sentencing-testing devices.
***
To be valid under the manifest injustice standard, a guilty plea
must be knowingly, voluntarily and intelligently entered. A
manifest injustice occurs when a plea is not tendered knowingly,
intelligently, voluntarily, and understandingly. The Pennsylvania
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Rules of Criminal Procedure mandate pleas be taken in open
court and require the court to conduct an on-the-record colloquy
to ascertain whether a defendant is aware of his rights and the
consequences of his plea. Under [Pa.R.Crim.P.] 590, the court
should confirm, inter alia, that a defendant understands: (1) the
nature of the charges to which he is pleading guilty; (2) the
factual basis for the plea; (3) he is giving up his right to trial by
jury; (4) and the presumption of innocence; (5) he is aware of
the permissible ranges of sentences and fines possible; and (6)
the court is not bound by the terms of the agreement unless the
court accepts the plea. The reviewing court will evaluate the
adequacy of the plea colloquy and the voluntariness of the
resulting plea by examining the totality of the circumstances
surrounding the entry of that plea. Pennsylvania law presumes a
defendant who entered a guilty plea was aware of what he was
doing, and the defendant bears the burden of proving otherwise.
Commonwealth v. Kpou, 153 A.3d 1020, 1023-24 (Pa. Super. 2016)
(citations, quotations, and original brackets omitted).
At the plea hearing, the trial court inquired as to DiGangi’s
understanding of the six factors set forth above. See N.T., 8/15/16, at 4-9.
DiGangi responded appropriately during the plea colloquy, and stated that
he understood each of the six areas of inquiry set forth above. See id.
Regarding mental health, the trial court questioned DiGangi as follows:
THE COURT: Do you have mental illness issues?
[] DIGANGI: Well, I’ve been diagnosed before. And I’ve had it
under control[,] I believe. But I think it’s – for a long time.
THE COURT: In what?
[] DIGANGI: It’s been in hand—I think I’ve had it in hand for a
long time of it. That could be questioned, of course.
THE COURT: Yeah.
[] DIGANGI: But I’ve had—
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THE COURT: Well, were you taking your medicine at the time
this thing happened?
[] DiGangi: Yes, I was.
THE COURT: Are you telling me the truth?
[] DIGANGI: Yes, I was And –
THE COURT: Who follows you for mental illness? Do you see a
doctor? Do you go to a clinic?
[] DIGANGI: Well, I do see a doctor. I’m under the care of
Michael Prime. And … I have psychiatrists that I see. I have
regular lithium levels. Although it’s not court committed, but I
still go.
THE COURT: All right.
[] DIGANGI: And I –
THE COURT: All right. I’m going to add one further condition to
the parole and that is that you have to comply with all mental
health treatment and medication that’s been prescribed for you.
[] DIGANGI: That’s fine, Your Honor.
Id. at 10.
Our review discloses that throughout the hearing, DiGangi expressed
his understanding of the factual basis for, and consequences of his guilty
plea. See id. at 4-12. Further, the trial court conducted appropriate inquiry
regarding DiGangi’s mental health, as it impacted his ability to knowingly,
intelligently and voluntarily enter a guilty plea. See id. at 10. Thus, we
agree with the conclusion reached by Counsel, i.e., that the issue is without
merit, not supported by the record, and frivolous.
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Finally, we have conducted our own independent review of the record
and found no additional, non-frivolous issues that could be raised by
DiGangi. Accordingly, we grant Counsel’s Application to Withdraw, and
affirm DiGangi’s judgment of sentence.
Application to Withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/19/2017
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