J-S08021-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TOMAS SANTIAGO-RIVERA

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1186 MDA 2022

Appeal from the Judgment of Sentence Entered March 22, 2022

In the Court of Common Pleas of Berks County Criminal Division at 

No(s): CP-06-CR-0003174-2020

BEFORE: OLSON, J., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY McCAFFERY, J.: FILED MAY 05, 2023

Tomas Santiago-Rivera (Appellant) appeals from the judgment of 

sentence entered in the Berks County Court of Common Pleas, following his 

guilty plea to one count of driving under the influence of a controlled substance 

(DUI).1 Contemporaneous with this appeal, Appellant’s counsel, Emily 

Washburn, Esquire, has filed a petition to withdraw from representation and 

an Anders brief.2 The Anders brief challenges the validity of Appellant’s 

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* Retired Senior Judge assigned to the Superior Court.

1 75 Pa.C.S. § 3802(d)(2).

2 See Anders v. California, 386 U.S. 738 (1967); Commonwealth v. 

Santiago, 978 A.2d 349 (Pa. 2009).
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guilty plea and the discretionary aspect of his sentence. We affirm the 

judgment of sentence and grant counsel’s petition to withdraw. 

At the plea hearing, the parties stipulated to the facts as set forth in the 

affidavit of probable cause, accompanying the police criminal complaint, which 

stated the following. N.T., 3/22/22, at 5. On August 4, 2020, at 

approximately 1:10 a.m., State Troopers Travis Rutt and Philip Cyphers 

investigated a single car accident on Interstate 78 in Greenwich Township,

Berks County. Affidavit of Probable Cause, 9/15/20, at 1. A witness reported 

that Appellant was driving at high speed when he hit a concrete barrier. Id. 

at 3. The car “careened back into the left lane and struck the center concrete 

barrier” again. Id. Appellant’s car then spun and came to a rest. Id. 

State Trooper Rutt stated that Appellant “demonstrated a wide array of 

emotions . . . from crying to calm, to laughing and to depressed.” Affidavit of 

Probable Cause at 3. State Trooper Rutt also noted that Appellant’s eyes were 

bloodshot and glassy. Id. Finally, State Trooper Rutt conducted a field 

sobriety test and a preliminary breath test, which was positive for the 

presence of alcohol. Id. Appellant was subsequently arrested and charged 

with DUI, as well as several traffic violations.3

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3 The charges included: 75 Pa.C.S. §§ 3802(a)(1) (driving while under the 

influence of alcohol), 3309(1) (driving on roadways laned for traffic), 3361 

(driving at unsafe speed), and 3714(a) (careless driving). 
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On March 22, 2022, Appellant, represented by Attorney Washburn, 

entered a negotiated guilty plea for one count of DUI. The Commonwealth 

stated the parties had agreed to the “mandatory minimum sentence of 90 

days to five years and a $1,500 fine.” N.T. at 4. Immediately thereafter, the 

trial court imposed the agreed-upon sentence. 

On March 30, 2022, Appellant timely filed a post-sentence motion to 

withdraw his guilty plea. The docket reveals that on August 26, Appellant filed 

a notice of appeal, but the post-sentence motion was not denied by operation 

of law until three days thereafter, August 29th.4 However, “where the clerk 

of courts does not enter an order indicating that the post-sentence motion is 

denied by operation of law and notify the defendant of same, a breakdown in 

the court system has occurred and we will not find an appeal untimely under 

these circumstances.” Commonwealth v. Perry, 820 A.2d 734, 735 (Pa. 

Super. 2003). We thus deem Appellant’s notice of appeal as timely filed.

On September 14, 2022, the trial court directed Appellant to file, within 

21 days, a Pa.R.A.P. 1925(b) statement of errors complained of on appeal. 

Two days after this deadline, on October 7th, Attorney Washburn filed a 

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4 See Pa.R.Crim.P. 720(B)(3)(a) (“If the judge fails to decide the [postsentence] motion within 120 days . . . the motion shall be deemed denied by 

operation of law.”), (c) (“When a post-sentence motion is denied by operation 

of law, the clerk of courts shall forthwith enter an order on behalf of the 

court . . .”). Here, the 120th day after the filing of the post-sentence motion 

was July 28, 2022.
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statement of intent to file an Anders brief two days after the deadline. See 

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

Generally, the failure to file a timely, court-ordered Rule 1925(b) 

statement results in waiver of all issues for appeal. Commonwealth v. Hess, 

810 A.2d 1249, 1252 (Pa. 2002). We further note that pursuant to 

Pennsylvania Rule of Criminal Procedure 114(C), a docket entry for a court 

order shall include the date of service of the order. Pa.R.Crim.P. 114(C)(2)(c). 

In Commonwealth v. Hess, 810 A.2d 1249 (Pa. 2002), a docket sheet did

not indicate the date of service of a trial court’s Rule 1925(b) order. Id. at 

1254. The Pennsylvania Supreme Court held that given “this failure to comply 

with the mandatory procedures under Rule 114, [the Court was] unable to 

ascertain the date upon which [the a]ppellant was purportedly served with the 

. . . 1925(b) order and, therefore, [it] simply cannot conclude when, if ever, 

the [filing] period under Rule 1925(b) began to run.” Id. The Supreme Court 

concluded that the appellant could not “be penalized for failing to file a timely 

1925(b) statement.” Id. at 1255.

Similarly, here the trial court docket does not state the date of service 

for the Rule 1925(b) order. As a result, we are unable to determine when 

Appellant received the order. See Hess, 810 A.2d at 1254. Therefore, we 

deem Attorney Washburn’s filing of the statement to be timely and proceed to 

a review of the issues raised in the Anders brief. 
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When counsel files a petition to withdraw and accompanying Anders 

brief, we must first examine the request to withdraw before addressing any of 

the substantive issues raised on appeal. Commonwealth v. Bennett, 124 

A.3d 327, 330 (Pa. Super. 2015). An attorney seeking to withdraw from 

representation on appeal 

must: 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) furnish a copy 

of the brief to the defendant; and 3) advise the defendant that he 

or she has the right to retain private counsel or raise additional 

arguments that the defendant seems worthy of the court’s 

attention. 

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en 

banc). Pursuant to Santiago, counsel must also: 

(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. 

Id., quoting Santiago, 978 A.2d at 361.

In Attorney Washburn’s Anders brief, she aptly summarized the 

pertinent factual and procedural history with citations to the records. Anders 

Brief at 6-9. Attorney Washburn states that after a conscientious review of 

the record and applicable law, she concludes the appeal is frivolous. Id. at 

17. Moreover, Attorney Washburn has provided this Court with a copy of the 

letter she sent to Appellant, advising him of his right to proceed with newly 
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retained counsel or pro se, and to raise any additional points for this Court’s 

attention. See Attorney Washburn’s Letter to Appellant, 1/13/23. Therefore, 

the brief and petition to withdraw filed by Attorney Washburn comply with the 

requirements of Anders and Santiago. See Cartrette, 83 A.3d at 1032. 

We note Appellant has not filed a response.

The Anders brief identifies two potential claims for our review: 

A. Whether Appellant can support the standard of manifest 

injustice required to withdraw his negotiated guilty plea. 

B. Whether Appellant, having entered into a negotiated guilty 

plea, can challenge the discretionary aspects of his sentence. 

Anders Brief at 5.

We now make an independent review of these issues and conduct “a full 

examination of all the proceedings, to decide whether the case is wholly 

frivolous[.]” See Commonwealth v. Yorgey, 188 A.3d 1190, 1196 (Pa. 

Super. 2018) (en banc) (citation omitted). If we agree with counsel’s 

assessment, we “may grant counsel’s request to withdraw and dismiss the 

appeal[.]” Id. (citation omitted). 

Appellant first seeks to withdraw this negotiated guilty plea, asserting 

that “it was manifestly unjust.” Anders Brief at 10. It is well settled that “by 

entering a guilty plea, the defendant waives his right to challenge on direct 

appeal all nonjurisdictional defects except the legality of the sentence and the 

validity of the plea.” Commonwealth v. Lincoln, 72 A.3d 606, 609 (Pa. 

Super. 2013). Indeed, 
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there is no absolute right to withdraw a guilty plea;[ ] trial courts 

have discretion in determining whether a withdrawal request will 

be granted; such discretion is to be administered liberally in favor 

of the accused; and any demonstration by a defendant of a fairand-just reason will suffice to support a grant, unless withdrawal 

would work substantial prejudice to the Commonwealth. 

Commonwealth v. Carrasquillo, 115 A.3d 1284, 1291-92 (Pa. 2015) 

(citation omitted). 

Further, “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.” Lincoln, 72 A.3d 

at 609-10, citing Pa.R.Crim.P. 720(B)(1)(a)(i).

[A] defendant who attempts to withdraw a guilty plea after 

sentencing must demonstrate prejudice on the order of manifest 

injustice before withdrawal is justified. A plea rises to the level of 

manifest injustice when it was entered into involuntarily, 

unknowingly, or unintelligently. . . .

* * *

The determination [of materiality] must be fact- and case-specific. 

. . .

Lincoln, 72 A.3d at 610 (citations and quotation marks omitted). “A 

defendant is bound by the statements he makes during his plea colloquy, and 

may not assert grounds for withdrawing the plea that contradict statements 

made when he pled.” Commonwealth v. Stork, 737 A.2d 789, 790-91 (Pa. 

Super. 1999) (citations omitted).

Our law presumes that a defendant who enters a guilty plea was 

aware of what he was doing. He bears the burden of proving 

otherwise. [W]here the record clearly demonstrates that a guilty 

plea colloquy was conducted, during which it became evident that 
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the defendant understood the nature of the charges against him, 

the voluntariness of the plea is established. Thus,

[a] court accepting a defendant’s guilty plea is required 

to conduct an on-the-record inquiry during the plea 

colloquy. The colloquy must inquire into the following 

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? 

Commonwealth v. Rush, 909 A.2d 805, 808-09 (Pa. Super. 2006) (citations 

omitted). See also Pa.R.Crim.P 590, cmt.

Here, Appellant properly preserved his claim in a timely filed postsentence motion before the trial court. See Lincoln, 72 A.3d at 609-10. The 

record reveals Appellant participated in a comprehensive and thorough written 

colloquy, which was followed by an oral colloquy. See Statement 

Accompanying Appellant’s Request to Enter a Guilty Plea, 3/22/22, at 1-4. In 

the written colloquy, Appellant agreed that he understood: (1) he is presumed 

to be innocent until proven guilty of the offenses charged; (2) he has the right 
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to a jury trial; (3) by pleading guilty, he is giving up the right to go to trial; 

(4) by pleading guilty, he is giving up his right to file pre-trial motions; and 

(5) he understood the nature of the charges to which he was pleading guilty. 

Id. at 2. Appellant stated that he has not had any drugs, alcohol, or 

medication within the last 48 hours. Id. at 6. We further note the following 

exchange at the plea hearing: 

[Commonwealth]: The plea agreement has been negotiated 

between your attorney and the Commonwealth calling for you to 

enter this plea in exchange for . . . a mandatory minimum 

sentence of 90 days to five years and a $1,500 fine. Is that your 

understanding of the agreement? 

[Appellant]: Yes. 

* * *

THE COURT: Has anyone forced, threatened, or coerced you 

into pleading guilty? 

[Appellant]: No. 

THE COURT: You have [filled] out, signed, and submitted 

documents to the Court. Have you had an opportunity to speak 

with [your attorney] about those documents? 

[Appellant]: Yes, we talked about it. 

THE COURT: You understand what those documents mean?

[Appellant]: It means three months in jail, one-year 

probation. 

THE COURT: That is part of it. Do you have any questions 

about those documents? 

[Appellant]: I’m good. She explained it. She explained it 

correctly. . . . 
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N.T. at 4, 6. 

The record does not support a claim that Appellant entered into the 

guilty plea unknowingly, involuntarily, or unintelligently. Therefore, we 

conclude that Appellant has not established manifest injustice justifying the 

withdrawal of his guilty plea. See Lincoln, 72 A.3d at 610.

The second issue raised in the Anders brief is a challenge to the 

discretionary aspects of Appellant’s sentence. This Court has stated:

[W]hen the plea agreement contains a negotiated sentence 

which is accepted and imposed by the sentencing court, 

there is no authority to permit a challenge to the 

discretionary aspects of that sentence. If either party to a 

negotiated plea agreement believed the other side could, at any 

time following entry of sentence, approach the judge and have the 

sentence unilaterally altered, neither the Commonwealth nor any 

defendant would be willing to enter into such an agreement. 

Permitting a discretionary appeal following the entry of a 

negotiated plea would undermine the designs and goals of plea 

bargaining, and would make a sham of the negotiated plea 

process[.]

Commonwealth v. Morrison, 173 A.3d 286, 290 (Pa. Super. 2017) 

(citations omitted and emphasis added). 

In the instant case, Appellant negotiated a plea deal, which included the 

term of sentence that he now disputes. See Statement Accompanying 

Appellant’s Request to Enter a Guilty Plea at 3. Following Appellant’s 

acceptance of the guilty plea, the trial court imposed the agreed upon 

sentence. Further, we reiterate that Appellant received the minimum 

sentence. We conclude that no relief is due. 
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Moreover, our independent review of the record reveals no non-frivolous 

issues to be raised on appeal. See Yorgey, 188 A.3d at 1196. Accordingly, 

we grant Attorney Washburn’s petition to withdraw, and we affirm the 

judgment of sentence.

Judgment of sentence affirmed. Attorney Washburn’s petition to 

withdraw from representation granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 05/05/2023