J-S28016-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MARKUS TROY CARWELL 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1992 MDA 2017

Appeal from the Judgment of Sentence, November 21, 2017,

in the Court of Common Pleas of Lancaster County,

Criminal Division at No(s): CP-36-CR-0003834-2017.

BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY KUNSELMAN, J.: FILED JULY 05, 2018

Marcus Troy Carwell appeals from the judgment of sentence imposed 

after he pled guilty to burglary, robbery (inflicting serious bodily injury), 

criminal conspiracy to commit robbery, and aggravated assault (bodily injury 

with a deadly weapon).

1 Carwell’s counsel has filed a petition to withdraw, in

which she alleges that this direct appeal is wholly frivolous. Agreeing with 

counsel’s assessment, we grant her petition to withdraw and affirm Carwell’s 

judgment of sentence.

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1 18 Pa.C.S.A. § 3502(a)(1), 18 Pa.C.S.A. § 3701(a)(1)(i), 18 Pa.C.S.A. § 

903 and 18 Pa.C.S.A. § 2702(a)(4). 
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The Commonwealth originally charged Carwell with burglary, robbery, 

criminal conspiracy, aggravated assault, simple assault2, terroristic threats3

and unlawful restraint.4 These charges arose from an incident in which Carwell 

entered the victim’s home with others, threatened the victim while holding a 

gun to him, and tied him up.

Initially, Carwell was represented by Attorney Daniel Kaye from the 

public defender’s office. At the pre-trial conference held on October 23, 2017, 

Attorney Raymond Stout entered his appearance to represent Carwell.

On November 21, 2017, Carwell entered a negotiated plea of guilty to 

burglary, robbery, criminal conspiracy, and aggravated assault; the three 

other charges were nol prossed. The substantial fines associated with these 

charges also were waived. In accordance with the plea agreement, the trial 

court imposed an aggregate sentence of eight and one-half to seventeen years 

of incarceration along with an order for restitution. 

On December 21, 2017, Carwell’s appellate counsel, Attorney Diana C. 

Kelleher, filed a Notice of Appeal based upon a letter from Carwell indicating 

his desire to appeal. On January 16, 2018, counsel timely filed a statement 

of intent to file an Anders/McClendon brief in lieu of a statement of errors 

complained of on appeal. The trial court filed its Opinion Sur Appeal on 

January 22, 2018. Carwell filed no response.

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2 18 Pa.C.S.A. § 2701(a)(3).

3 18 Pa.C.S.A. § 2706.

4 18 Pa.C.S.A. § 2902.
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“When presented with an Anders brief, this Court may not review the 

merits of the underlying issues without first passing on the request to 

withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super. 

2010). In Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), the 

Pennsylvania Supreme Court explained what is required to be included in an 

Anders brief:

[T]he Anders brief that accompanies court-appointed 

counsel’s petition to withdraw . . . 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.

“While the Supreme Court in Santiago, set forth the new requirements 

for an Anders brief, which are quoted above, the holding did not abrogate the 

notice requirements set forth in [Commonwealth v. Millisock, 873 A.2d 

748, 751 (Pa. Super. 2005)] that remain binding precedent. Daniels, 999 

A.2d at 594. Thus, counsel seeking to withdraw on direct appeal must meet 

the following obligations to his or her client:

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. 
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Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (citation 

omitted). 

Our review reveals that Carwell’s counsel substantially complied with 

the requirements of Anders and Santiago. “Once counsel has satisfied the 

above requirements, it is then this Court’s duty to conduct its own review of 

the trial court’s proceedings and render an independent judgment as to 

whether the appeal is, in fact, wholly frivolous.” Commonwealth v. 

Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc) (citation omitted). 

Stated differently, this Court must 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).

In her brief, counsel summarizes Carwell’s primary issue for appeal as 

whether his plea was made knowingly, voluntarily and intelligently and 

therefore valid. See Anders Brief at 9-10. Specifically, Carwell claims that 

he was forced into taking the plea and, on appeal, desires to challenge the 

voluntariness of it. Our review of the record, however, reveals that contrary 

to his argument, Carwell knowingly, voluntarily and intelligently entered his 

negotiated guilty plea. 

In order to ensure that a defendant understands the significance of the 

plea and its consequences, the trial court is required to inquire into the 

following areas during the plea colloquy: “(1) the nature of the charges; (2) 

the factual basis of the plea; (3) the right to trial by jury; (4) the presumption 
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of innocence; (5) the permissible range of sentences; and (6) the judge’s 

authority to depart from any recommended sentence.” Commonwealth v. 

Baney, 860 A.2d 127, 132 (Pa.Super. 2004) (quoting Commonwealth v.

Muhammad, 794 A.2d 378 (Pa. Super. 2002)); Pa.R.Crim.P. 590, Comment. 

On appeal, “[t]his Court evaluates the adequacy of the guilty plea colloquy 

and the voluntariness of the resulting plea by examining the totality of the 

circumstances surrounding the entry of that plea.” Baney, 794 A.2d at 132. 

The record in this case shows that the trial court conducted a thorough,

on-the-record inquiry during the guilty plea colloquy. The trial court covered 

each of the areas required by law. Thus, Carwell clearly entered his plea

voluntarily. 

This notwithstanding, Carwell claims that at the pre-trial conference, the 

trial judge threatened Carwell that if he exercised his right to a trial, the judge 

would impose maximum sentences on each count and run them separately. 

See Anders Brief at 10. Our review of the pre-trial conference transcript

reveals, as did counsel’s review, that the trial judge made no such statement 

or even any other statement that could be construed as such. Moreover, when 

asked on his written colloquy whether he was threatened or forced to plead 

guilty, Carwell answered “no”. He further stated that he was making the 

decision to plead guilty of his own free will. An “appellant is bound by 

statements made during plea colloquy and may not successfully assert claims

that contradict such statements.” Baney, 860 A.2d at 132. 
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Carwell further claims that both his trial counsel and plea counsel were 

ineffective, and that, somehow, this resulted in his plea being involuntarily 

given. See Anders Brief at 10. Carwell was originally represented by an

attorney from the public defender’s office. At the pre-trial conference,

however, that attorney was excused from the case, and replaced by another, 

who represented Carwell through his plea. In particular, Carwell claims that 

his plea counsel told him that he could not file any motion, because his first 

attorney had put him in a jam, and that if he went to trial, he would lose.

It is well-established that, unless one of the limited exceptions is present 

in a particular case and the defendant has waived his right to PCRA review, 

neither of which exist herein, “claims of ineffective assistance of counsel are 

to be deferred to PCRA review . . . such claims should not be reviewed upon 

direct appeal.” Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013). 

Consequently, such claims raised by Carwell are premature, and we will not

address them in his direct appeal.

Considering the totality of the circumstances surrounding Carwell’s plea, 

we conclude that Carwell entered a knowing, intelligent and voluntary guilty 

plea. We, therefore, agree with counsel’s assessment that the issues raised 

by Carwell are frivolous. Furthermore, our independent review of the record 

reveals no other non-frivolous bases for appeal. Flowers, supra. Thus, this 

appeal is “wholly frivolous.”

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

Joseph D. Seletyn, Esq.

Prothonotary

Date: 07/05/2018