J-S58004-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CARLOS ALBERTO CRUZ-BORRERO,

Appellant No. 52 MDA 2016

Appeal from the Judgment of Sentence December 9, 2015

in the Court of Common Pleas of Berks County

Criminal Division at No.: CP-06-CR-0002843-2015

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CARLOS ALBERTO CRUZ-BORRERO,

Appellant No. 53 MDA 2016

Appeal from the Judgment of Sentence December 9, 2015

in the Court of Common Pleas of Berks County

Criminal Division at No.: CP-06-CR-0002796-2015

BEFORE: GANTMAN, P.J., BOWES, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 07, 2016

In these consolidated cases, Appellant, Carlos Alberto Cruz-Borrero, 

appeals from the judgment of sentence imposed on December 9, 2015, 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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following his negotiated guilty plea to two counts of retail theft.1 Appellant’s 

counsel has filed a brief and a petition to withdraw under Anders v. 

California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 

A.2d 349 (Pa. 2009), alleging that the appeal is wholly frivolous. We affirm 

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

On June 23 and 24, 2015, the Commonwealth filed two criminal 

informations charging Appellant in case no. 2796-2015 with retail theft; and 

in case no. 2843-2015, with retail theft and receiving stolen property.2 The 

charges arose from Appellant’s April 17, 2015 theft of $2,531.39 worth of 

property from the Target store in Muhlenberg Township, Berks County, 

Pennsylvania; and his May 8, 2015 theft of $327.31 worth of property from 

the Sears store in the Borough of Wyomissing, Berks County, Pennsylvania. 

(See N.T. Guilty Plea, 12/09/15, at 6).

On December 9, 2015, the morning scheduled for a bench trial in case 

no. 2843-2015, Appellant entered a counseled negotiated guilty plea to two 

counts of retail theft, one in case no. 2843-2015 and one in case no. 2796-

2015. (See id. at 2). In return for Appellant’s guilty plea, in case no. 2796-

2015 the Commonwealth agreed to a sentence of not less than time served 

(ninety-two days) nor more than twenty-three months of incarceration. 

(See id. at 4). In case no. 2843-2015 the Commonwealth dismissed the 

____________________________________________

1 18 Pa.C.S.A. § 3929(a)(1).

2 18 Pa.C.S.A. § 3925(a).
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charge of receiving stolen property and agreed to a sentence of three years 

of probation and forty hours of community service. (See id. at 4-5; see 

also Written Guilty Plea 12/09/15, at 1). Appellant signed a written guilty 

plea colloquy. (See Written Guilty Plea, at 3). Counsel co-signed the guilty 

plea colloquy. (See id. at 4). 

At the plea hearing, Appellant stated that he was pleading guilty of his 

own free will. (See N.T. Guilty Plea, at 7). Appellant acknowledged that the 

trial court could sentence him to pay an aggregate fine of $25,000.00. (See 

id. at 5). In the written plea colloquy, Appellant agreed that, as part of the 

plea agreement, he would have to complete forty hours of community 

service, that he was pleading guilty of his own free will, because he was 

guilty of the charged crimes, and that he understood the maximum possible 

sentences. (See Written Guilty Plea, at 1-3). Following his guilty plea, the 

trial court immediately sentenced Appellant in accordance with the terms of 

the negotiated guilty plea. (See N.T. Guilty Plea, at 9-11). Appellant also 

signed a written acknowledgment of post-sentence procedures, which 

informed him that he must file any post-sentence motion within ten days of 

sentencing. (See [Appellant’s] Acknowledgment of Post-Sentence 

Procedures Following Guilty Plea, 12/09/15, at unnumbered pages 1-2). 

Counsel co-signed the acknowledgment. (See id. at 2).

On December 28, 2015, Appellant filed a counseled nunc pro tunc 

petition to withdraw his guilty plea, claiming that his guilty plea was 
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involuntary because he was not aware of the fines, costs, or community 

service required as part of his plea and that he felt “threatened by the police 

present at the time of his court appearance[.]” (Petition for Nunc Pro Tunc 

Relief to Withdraw Guilty Plea, 12/28/15, at unnumbered page 2). On 

January 5, 2016, the trial court denied the motion. The instant, timely 

appeal followed.

On January 15, 2016, the trial court ordered Appellant to file a concise 

statement of errors complained of on appeal. See Pa.R.A.P. 1925(b). 

Subsequently, Appellant filed a petition seeking an enlargement of time to 

file his Rule 1925(b) statement, which the trial court granted.3 On February 

3, 2016, Appellant filed a timely Rule 1925(b) statement. See id. On March 

2, 2016, the trial court issued an opinion. See Pa.R.A.P. 1925(a). 

On April 28, 2016, counsel filed a motion to withdraw and Anders 

brief in this Court. Appellant has not filed a response.

On appeal, the Anders brief raises the following question for our 

review:

A. Whether the trial court abused its discretion in denying 

Appellant’s motion to withdraw his guilty pleas to [r]etail 

[t]heft, 18 Pa. C.S.A. § 3929(a)(1), as, based on the 

totality of the circumstances, Appellant’s guilty pleas were 

____________________________________________

3 While Appellant entitled his petition as one seeking to supplement his Rule 

1925(b) statement, a reading of the petition demonstrates that Appellant 

sought an enlargement of time because of a delay in obtaining the 

transcripts. (See Petition for Permission to Supplement 1925(b) Statement, 

2/02/16, at unnumbered page 1).
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not knowing, intelligent and voluntary, a claim of manifest 

injustice[?]

(Anders Brief, at 5). 

Appellant’s counsel has petitioned for permission to withdraw and has 

submitted an Anders brief, which is procedurally proper for counsel seeking 

to withdraw on direct appeal. See Anders, supra at 744. Court-appointed 

counsel who seeks to withdraw from representing an appellant on direct 

appeal on the basis that the appeal is frivolous 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. When we receive an Anders brief, we first rule on 

the petition to withdraw and then review the merits of the underlying issues. 

See Commonwealth v. Garang, 9 A.3d 237, 240-41 (Pa. Super. 2010). 

In addition, “[p]art and parcel of Anders is our Court’s duty to review the 

record to insure no issues of arguable merit have been missed or misstated.” 

Commonwealth v. Vilsaint, 893 A.2d 753, 755 (Pa. Super. 2006). 

In the instant matter, counsel has substantially complied with all the 

requirements of Anders and Santiago. Specifically, she has petitioned this 

Court to withdraw because “there are no non-frivolous issues to be raised on 

appeal and [she] believes that the appeal is wholly frivolous.” (Petition to 
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Withdraw as Counsel, 4/28/16, at 1). In addition, after her review of the 

record, counsel filed a brief with this Court that provides a summary of the 

procedural history and facts with citations to the record, refers to any facts 

or legal theories that arguably support the appeal, and explains why she 

believes the appeal is frivolous. (See Anders Brief, at 6-12). Lastly, she 

has attached, as an exhibit to her motion to withdraw, a copy of the letter 

sent to Appellant giving notice of his rights, and including a copy of the 

Anders brief and the petition. (See Petition to Withdraw as Counsel, 

4/28/16, at Exhibit A); see also Commonwealth v. Millisock, 873 A.2d 

748, 751-52 (Pa. Super. 2005). As noted above, Appellant has not 

responded. Because counsel has substantially complied with the dictates of 

Anders, Santiago, and Millisock, we will examine the issue set forth in the 

Anders brief. See Garang, supra at 240-41.

In the Anders brief, counsel asserts that Appellant’s guilty plea was 

not knowing, intelligent, and voluntary. (See Anders Brief, at 9-12). 

Appellant does not proclaim his actual innocence but alleges that he did not 

understand all the terms of his sentence and that the presence of police in 

the courtroom coerced him to plead guilty. (See id. at 10). We disagree. 

However, before discussing the merits of Appellant’s claims, we must 

determine if they are properly before us. The Pennsylvania Rules of Criminal 

Procedure provide that, “[e]xcept as provided in paragraph (C) and (D) 

[dealing with summary cases], a written post-sentence motion shall be filed 
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no later than 10 days after imposition of sentence.” Pa.R.Crim.P. 720(A)(1). 

Here, Appellant entered his guilty plea and was sentenced on December 9, 

2015. He did not file his post-sentence motion to withdraw his guilty plea 

until December 28, 2015. Thus, it was facially untimely.4 

With respect to untimely post-sentence motions, this Court has stated:

To be entitled to file a post-sentence motion nunc pro 

tunc, a defendant must, within 30 days after the imposition of 

sentence, demonstrate sufficient cause, i.e., reasons that excuse 

the late filing. Merely designating a motion as “post-sentence 

motion nunc pro tunc ” is not enough. When the defendant has 

met this burden and has shown sufficient cause, the trial court 

must then exercise its discretion in deciding whether to permit 

the defendant to file the post-sentence motion nunc pro tunc. If 

the trial court chooses to permit a defendant to file a postsentence motion nunc pro tunc, the court must do so expressly. 

. . . in 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.

Commonwealth v. Dreves, 839 A.2d 1122, 1128 (Pa. Super. 2003) (en 

banc) (footnote and citations omitted).

Here, Appellant simply entitled his motion “nunc pro tunc” but failed to 

provide any explanation for its tardiness. (Petition for Nunc Pro Tunc Relief 

to Withdraw Guilty Plea, 12/28/15, at unnumbered pages 1-3). Because of 

this, the trial court acted within its discretion to deny the motion, without a 

____________________________________________

4 Although Appellant did not timely file his post-sentence motion, his notice 

of appeal was timely.
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hearing, as untimely. (See Order, 1/05/16, at 1); see also Dreves, supra 

at 1128.

With respect to challenges to the validity of a guilty plea on direct 

appeal, this Court has stated:

Settled Pennsylvania law makes clear 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. 

Indeed, a defendant routinely waives a 

plethora of constitutional rights by pleading guilty, 

including the right to a jury trial by his peers, the 

right to have the Commonwealth prove his guilt 

beyond a reasonable doubt, and his right to confront 

any witnesses against him. Furthermore, a 

defendant is permitted to waive fundamental 

constitutional protections in situations involving far 

less protection of the defendant than that presented 

herein. . . . 

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. 

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, 237 Pa.Super. 336, 

352 A.2d 140, 141 (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”).

Likewise:
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Normally, issues not preserved in the trial 

court may not be pursued before this Court. 

Pa.R.A.P. 302(a). For example, a request to 

withdraw a guilty plea on the grounds that it was 

involuntary is one of the claims that must be raised 

by motion in the trial court in order to be reviewed 

on direct appeal. Similarly, challenges to a court’s 

sentencing discretion must be raised during 

sentencing or in a post-sentence motion in order for 

this Court to consider granting allowance of appeal. 

Moreover, for any claim that was required to be 

preserved, this Court cannot review a legal theory in 

support of that claim unless that particular legal 

theory was presented to the trial court. Thus, even 

if an appellant did seek to withdraw pleas or to 

attack the discretionary aspects of sentencing in the 

trial court, the appellant cannot support those claims 

in this Court by advancing legal arguments different 

than the ones that were made when the claims were 

preserved.

Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super. 

2008), appeal denied, 601 Pa. 696, 972 A.2d 521 (2009).

Further, 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. . . . 

Commonwealth v. Lincoln, 72 A.3d 606, 609-10 (Pa. Super. 2013), 

appeal denied, 87 A.3d 319 (Pa. 2014) (some citations and quotation marks 

omitted).

Here, Appellant did not preserve his challenge to the voluntariness of 

his guilty plea by either objecting during the plea colloquy or filing a timely 

post-sentence motion to withdraw the plea. See Pa.R.Crim.P. 
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720(B)(1)(a)(i). Accordingly, Appellant waived any challenge to his guilty 

plea on direct appeal.5 See Lincoln, supra at 609-10. 

Judgment of sentence affirmed. Petition to withdraw as counsel 

granted.

President Judge Gantman joins the Memorandum.

Judge Bowes concurs in the result.

____________________________________________

5

In any event, Appellant’s challenge to the voluntariness of his plea is 

frivolous. Appellant’s claim that he was unaware that he would be required 

to pay fines and costs and undergo community service (see Anders brief, at 

8), is belied by the record. At the guilty plea hearing, Appellant 

acknowledged that the trial court could require him to pay fines. (See N.T. 

Guilty Plea, at 5). Appellant did not object to the imposition of costs at 

sentencing and did not seek to withdraw his guilty plea at that time. (See 

id. at 9-11). Moreover, Appellant acknowledged in his written guilty plea, 

that, as part of the plea agreement, he would have to complete community 

service. (See Written Guilty Plea, at 1). As to his claim about the coercive 

effect of the police presence, the sole indication in the record that there 

were police officers present is the trial court’s statement that it was “going 

to excuse the officers.” (N.T. Guilty Plea, at 7). As the trial court noted, the 

officers were present because “[Appellant] pled guilty at the date and time 

of his bench trial, for which the officers had been subpoenaed to testify.” 

(Trial Court Opinion, 3/02/16, at unnumbered page 3). There is nothing in 

the record that demonstrates that the officers had any interaction with 

Appellant, and Appellant did not object to their presence. (See N.T. Guilty 

Plea, at 1-11). Moreover, Appellant has not pointed to any law that would 

support a claim that the mere presence of police officers in the courtroom at 

the time of a guilty plea renders the plea involuntary. (See Anders brief, at 

8-12). Accordingly, Appellant has not demonstrated that the entry of his 

guilty plea was involuntary, unknowing, or unintelligent. See 

Commonwealth v. Yeomans, 24 A.3d 1044, 1046 (Pa. Super. 2011). 

Thus, had Appellant preserved them, his issues do not merit relief. 

Further, this Court has conducted an independent review of the record as 

required by Anders and Santiago and finds that no meritorious issues 

exist. 

 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/7/2016