J-S45011-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ANTONIO ORTIZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 628 EDA 2022

Appeal from the Judgment of Sentence Entered January 12, 2022

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

No(s): CP-39-CR-0003089-2021

BEFORE: OLSON, J., STABILE, J., and MURRAY, J.

MEMORANDUM BY OLSON, J.: FILED MARCH 13, 2023

Appellant, Antonio Ortiz, appeals from the January 12, 2022 judgment 

of sentence entered in the Court of Common Pleas of Lehigh County that 

imposed an aggregate sentence of 3 to 10 years’ incarceration after Appellant 

pleaded guilty to, inter alia, manufacture, delivery, or possession with intent 

to manufacture or deliver a controlled substance (fentanyl) and receiving 

stolen property (a firearm).

1

 Appellant’s counsel filed an Anders brief2 and a 

petition to withdraw with this Court. We grant counsel’s petition to withdraw 

and affirm the judgment of sentence.

____________________________________________

1 35 P.S. 780-113(a)(30) and 18 Pa.C.S.A. § 3925(a), respectively.

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

Santiago 978 A.2d 349 (Pa. 2009); Commonwealth v. McClendon, 434 

A.2d 1185 (Pa. 1981).
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A review of the record demonstrates that at trial court docket number 

CP-39-CR-0003089-2021 (“Case 3089-2021”), Appellant pleaded guilty to the 

aforementioned criminal offenses on January 12, 2022. That same day, and 

as part of the same negotiated plea agreement, Appellant also pleaded guilty 

to aggravated assault of a police officer and resisting arrest or other law 

enforcement3 at trial court docket number CP-39-CR-0001598-2021 (“Case 

1598-2021”). At trial court docket number CP-39-CR-0001599-2021 (“Case 

1599-2021”), Appellant pleaded guilty to fleeing or attempting to elude a 

police officer.4 Finally, at trial court docket number CP-39-CR-0003090-2021 

(“Case 3090-2021”), Appellant pleaded guilty to simple assault – fear of 

imminent serious bodily injury.5

Upon accepting Appellant’s guilty plea,

6

the trial court sentenced 

Appellant, that same day, as follows: at Case 3089-2021, Appellant was 

sentenced to 3 to 10 years’ incarceration for possession with the intent to 

deliver a controlled substance and 12 to 24 months’ incarceration for receiving 

stolen property; at Case 1598-2021, Appellant was sentenced to 2 to 10 years’ 

____________________________________________

3 18 Pa.C.S.A. §§ 2702(a)(3) and 5104, respectively.

4 75 Pa.C.S.A. § 3733.

5 18 Pa.C.S.A. § 2701(a)(3).

6 Appellant accepted a 3-year minimum sentence of total confinement

pursuant to the terms of his negotiated plea agreement. The maximum term 

of confinement was left to the discretion of the trial court. In addition, the 

Commonwealth agreed to stand silent and allow the trial court to determine 

whether the aggregate sentence would run concurrently or consecutively to a

sentence Appellant was already serving. N.T., 1/12/22, at 6, 16, 28.
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incarceration for aggravated assault and 3 to 12 months’ incarceration for 

resisting arrest; at Case 1599-2021, Appellant was sentenced to 3 to 12 

months’ incarceration for fleeing or attempting to elude a police officer; and 

at Case 3090-2021, Appellant was sentenced to 6 to 12 months’ incarceration 

for simple assault. The sentences imposed at the aforementioned trial court 

dockets were to run concurrently, with credit for time served (50 days), and

the sentences were to run consecutively to any sentence Appellant was 

currently serving.

7

 Ultimately, Appellant was sentenced to an aggregate term

of 3 to 10 years’ incarceration, with the aggregate sentence to run 

consecutively to the sentence Appellant was currently serving, which was 2 to 

5 years’ incarceration.

On January 19, 2022, Appellant filed pro se a “petition in lieu of [a] more 

formal petition to appeal [an] illegal sentence” (“post-sentence motion”).

8

 A 

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7 When Appellant pleaded guilty on January 12, 2022, at the aforementioned 

trial court dockets, he was currently serving a sentence of 2 to 5 years’ 

incarceration, which was imposed at a separate trial court docket.

8 As discussed in greater detail infra, the trial court treated Appellant’s pro se

petition to appeal an illegal sentence as a post-sentence motion. For ease and 

clarity of reference, we refer to Appellant’s pro se petition as a post-sentence 

motion.

The envelope Appellant used to mail his pro se post-sentence motion was 

postmarked January 19, 2022, but was time-stamped as having been filed 

with the trial court on January 24, 2022. Absent evidence to the contrary, we 

deem January 19, 2022, the date on which Appellant deposited his 

post-sentence motion with prison authorities and, pursuant to the prisoner 

mailbox rule, the date Appellant filed his pro se post-sentence motion. See 

Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997) (explaining the 
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notation on the trial court docket demonstrates that a copy of Appellant’s pro 

se post-sentence motion was forwarded to Appellant’s counsel via electronic 

mail.

On February 3, 2022, the trial court conducted a hearing on Appellant’s 

pro se post-sentence motion. Appellant, his counsel, and counsel for the 

Commonwealth were present at, and participated in, the hearing. At the 

conclusion of the hearing, the trial court denied Appellant’s pro se

post-sentence motion. Trial Court Order, 2/3/22.

On February 8, 2022, Appellant filed pro se a “petition in lieu of [a] more 

formal petition to appeal, correct, [or] modify [a] sentence” (“pro se petition 

to appeal”).9 The trial court perceived Appellant’s pro se petition to appeal as 

a notice of appeal and forwarded the same to this Court. See Trial Court 

Docket at 2/15/22 entry; see also Trial Court Order, 2/15/22. Appellant’s 

pro se petition to appeal was accepted by this Court as a notice of appeal and 

docketed at 491 EDA 2022.

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well-established principle, commonly referred to as the “prisoner mailbox 

rule,” under which a document is deemed filed on the date an inmate deposits 

the mailing with prison authorities or places it in the prison mailbox).

9 The envelope used to mail Appellant’s pro se petition to appeal is postmarked 

February 8, 2022. Therefore, pursuant to the prisoner mailbox rule, we deem 

February 8, 2022, the date on which Appellant filed his pro se petition to 

appeal. The pro se petition to appeal is time-stamped as having been received 

by the trial court on February 11, 2022, and docketed with the trial court on 

February 15, 2022. The trial court docket reveals that a copy of the pro se

petition to appeal was provided to Appellant’s counsel via electronic mail.
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On February 15, 2022, the trial court ordered Appellant to file a concise 

statement of errors complained of on appeal pursuant to Pennsylvania Rule of 

Appellate Procedure 1925(b). Trial Court Order, 2/15/22. A copy of the trial 

court’s February 15, 2022 order was sent to Appellant’s counsel via electronic 

mail on February 16, 2022.

On March 2, 2022, Appellant’s counsel filed a counseled notice of appeal, 

which was docketed with this Court at 628 EDA 2022.10 On March 3, 2022, 

the trial court ordered Appellant to file a Rule 1925(b) statement. Counsel

filed a statement of intent to file an Anders brief in lieu of a Rule 1925(b) 

statement on March 10, 2022.11 On September 6, 2022, counsel filed with 

this Court an Anders brief, as well as a petition to withdraw as counsel for 

Appellant.

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10 On March 2, 2022, Appellant’s counsel filed with this Court an application 

to discontinue the appeal docketed in this Court at 491 EDA 2022. In a March 

29, 2022 per curiam order, this Court granted the application, and the appeal 

docketed in this Court at 491 EDA 2022 was discontinued. Per Curiam Order, 

3/29/22.

11 On August 19, 2022, the trial court filed a Rule 1925(a) opinion, indicating 

that Appellant waived all issues on appeal for failure to file a Rule 1925(b) 

statement. On August 22, 2022, the trial court vacated its Rule 1925(a) 

opinion. Rule 1925(a) requires the trial court to “file of record at least a brief 

opinion of the reasons for the order, or for the rulings or other errors 

complained of, or shall specify in writing the place in the record where such 

reasons may be found.” Pa.R.A.P. 1925(a). To date, the trial court has not 

filed a Rule 1925(a) opinion in the case sub judice. Considering the 

requirement that this Court independently review the record to determine if 

there is any issue of arguable merit, however, we do not find it necessary to 

remand this case to the trial court for a filing of a Rule 1925(a) opinion.
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Preliminarily, we must review the procedural history of the case sub 

judice to determine whether the March 2, 2022 counseled notice of appeal 

was timely filed, as the timeliness of an appeal implicates this Court’s 

jurisdiction. Commonwealth v. Green, 862 A.2d 613, 615 (Pa. Super. 

2004) (en banc) (stating, the timeliness of an appeal implicates this Court’s

jurisdiction and, as such, this Court may consider the issue of jurisdiction sua 

sponte), appeal denied, 882 A.2d 477 (Pa. 2005); see also Pa.R.Crim.P. 

720(A)(2)(a) and (3) (stating, “[i]f the defendant does not file a timely 

post-sentence motion, the defendant's notice of appeal shall be filed within 30 

days of imposition of sentence” otherwise, the notice of appeal must be filed 

within 30 days of the entry of the order deciding the post-sentence motion).

Upon entry of appearance, retained counsel continues to represent a 

defendant “through direct appeal or until granted leave to withdraw by the 

court[.]” Pa.R.Crim.P. 120(A)(4). It is well-established that a criminal 

defendant, such as Appellant, who is represented by counsel, has no 

constitutional right to hybrid representation in either the trial court or an 

appellate court. Commonwealth v. Ellis, 626 A.2d 1137, 1139 (Pa. 1993).

If hybrid representation occurs at the trial court level, Pennsylvania Rule 

of Criminal Procedure 576(a) sets forth the procedural requirements for 

accepting pro se filings as follows:

(4) In any case in which a defendant is represented by an 

attorney, if the defendant submits for filing a written motion, 

notice, or document that has not been signed by the defendant's 

attorney, the clerk of courts shall accept it for filing, time stamp it 

with the date of receipt and make a docket entry reflecting the 
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date of receipt, and place the document in the criminal case file. 

A copy of the time stamped document shall be forwarded to the 

defendant's attorney and the attorney for the Commonwealth 

within 10 days of receipt.

(5) If a defendant submits a document pro se to a judge without 

filing it with the clerk of courts, and the document requests some 

form of cognizable legal relief, the judge promptly shall forward 

the document to the clerk of courts for filing and processing in 

accordance with this rule.

Pa.R.Crim.P. 576(a)(4) and (5). A pro se filing has no tolling effect. 

Pa.R.Crim.P. 576 Comments (stating, “[t]he requirement that the clerk [of 

courts] time stamp and make docket entries of the [pro se] filing[] only serves 

to provide a record of the filing, and does not trigger any deadline nor require 

any response”); see also Commonwealth v. Jette, 23 A.3d 1032, 1044 (Pa. 

2011) (stating that, “the proper response to any pro se pleading is to refer 

the pleading to counsel, and to take no further action on the pro se pleading 

unless counsel forwards a motion”), abrogated on other grounds by, 

Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021).

Pennsylvania Rule of Criminal Procedure 720 sets forth post-sentence 

procedures, in pertinent part, as follows:

Rule 720. Post-Sentence Procedures; Appeal

(A) Timing.

(1) Except as provided in paragraphs (C) and (D), a written 

post-sentence motion shall be filed no later than 10 days after 

imposition of sentence.

(2) If the defendant files a timely post-sentence motion, the 

notice of appeal shall be filed:

(a) within 30 days of the entry of the order deciding the 

motion;
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(b) within 30 days of the entry of the order denying the 

motion by operation of law in cases in which the [trial court]

fails to decide the motion; or

(c) within 30 days of the entry of the order memorializing 

the withdrawal in cases in which the defendant withdraws 

the motion.

(3) If the defendant does not file a timely post-sentence motion, 

the defendant's notice of appeal shall be filed within 30 days of 

imposition of sentence, except as provided in paragraph (A)(4)

[(concerning when the Commonwealth files a timely motion to 

modify a sentence)].

Pa.R.Crim.P. 720(A)(1-3).

In the instant case, after Appellant was sentenced on January 12, 2022, 

Appellant filed a pro se post-sentence motion while still represented by 

counsel. In accord with Rule 576, the trial court accepted Appellant’s pro se

post-sentence motion for filing and docketed the same on January 24, 2022.12 

The clerk of courts also sent a copy of the pro se post-sentence motion to 

Appellant’s counsel of record.13 The trial court then acted upon Appellant’s 

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12 In his pro se post-sentence motion, Appellant asserts that his sentence was 

illegal because it did not conform with the negotiated plea agreement. 

Post-Sentence Motion, 1/24/22, at ¶1 (stating, Appellant’s “sentence was 

outside the negotiated plea [agreement] where [the trial court] impose[d] a 

prison term [to run] consecutive[ly, and the] negotiated plea agreement was

[for the sentence] to run concurrently”).

13 Appellant’s counsel acknowledged at the February 3, 2022 hearing, 

discussed supra, that he received a copy of Appellant’s pro se post-sentence 

motion. N.T., 2/3/22, at 2.
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pro se post-sentence motion by scheduling a hearing on the matter.14 In 

denying Appellant’s pro se post-sentence motion, the trial court stated,

So at this point, [Appellant], the motion that you have filed is 

called a petition to appeal an illegal sentence. I am going to deny 

that motion because there is nothing that is illegal about this

[sentence based upon a review of] the sentencing sheets[] I 

complied with the plea agreement [] that you had. If you wish to 

file an appeal, you are able to do that. If you want to file a motion 

to withdraw the plea, you can do that. That is a separate petition 

that you can go through the same procedure that you went 

through with this one to file. I will review this. I will determine if

there is any basis for me to grant those. If not, I will inform you 

if I deny them and you can take the appeal from there.

If any other motion is filed, I will also consider whether it is 

necessary to appoint any other conflict counsel for you. But at 

this point, I don't see any basis to grant your petition to appeal 

an illegal sentence. Do you understand all that, [Appellant]?

N.T., 2/3/22, at 10-11.

Typically, Appellant’s pro se post-sentence motion would be a legal 

nullity because he was represented by counsel when he filed it. See 

Pa.R.Crim.P. 120(A)(4); see also Commonwealth v. Nischan, 928 A.2d 

349, 355 (Pa. Super. 2007) (stating, a pro se post-sentence motion filed by a 

defendant who is represented by counsel is a legal nullity). After Appellant 

filed his pro se post-sentence motion, and a copy was provided to his counsel 

pursuant to Rule 576, however, the trial court acted on the pro se

____________________________________________

14 A scheduling order for the February 3, 2022 was not entered on the docket

and is not part of the certified record. Notice of the hearing, however, was 

received by Appellant, Appellant’s counsel, and the Commonwealth because

all three parties appeared at the hearing. See generally N.T., 2/3/22.
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post-sentence motion by scheduling, and holding, a hearing on the matter

contrary to Rule 576 and relevant case law, as discussed supra.

15

 By taking 

action on the pro se filing, the trial court signaled that Appellant’s pro se

post-sentence motion had been accepted by the trial court and was sufficient 

to permit review contrary to the long-standing principle against hybrid 

representation as set forth in Ellis, supra, and its progeny, as well as Rule 

576.16

At the February 3, 2022 hearing, Appellant’s counsel did not seek 

permission to file a revised post-sentence motion or to withdraw as counsel 

for Appellant. Instead, counsel summarized for the trial court the basis of 

Appellant’s pro se post-sentence motion, as well as the argument counsel put 

forth at the time of Appellant’s sentencing whereby he requested that the trial 

court impose an aggregate sentence in the case sub judice to run concurrently 

with the sentence Appellant was already serving. N.T., 2/3/22, at 2-5 

(stating, “[t]hat was my request to the [trial c]ourt to run [Appellant’s 

sentences] concurrently with one another”). In so asserting, Appellant’s 

____________________________________________

15 The proper course for the trial court to have taken would have been to 

refrain from acting upon Appellant’s pro se post-sentence motion.

16 The trial court’s comments directed towards Appellant at the time the trial 

court denied Appellant’s pro se post-sentence motion, i.e., “That is a separate 

petition that you can go through the same procedure that you went 

through with this one to file” (emphasis added), as noted supra, suggests 

that Appellant was permitted to continue to submit pro se filings despite his 

being represented by counsel, which is in direct contradiction to the principle 

disallowing hybrid representation.
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counsel adopted Appellant’s pro se post-sentence motion and transformed it 

into a counseled post-sentence motion. Therefore, Appellant’s post-sentence 

motion and the trial court’s order denying the same do not offend the 

considerations of hybrid representation. Commonwealth v. Mason, 130 

A.3d 601, 671 (Pa. 2015) (acknowledging that, when counsel receives proper 

notice of a pro se filing pursuant to Rule 576(a)(4) and subsequently adopts 

the pro se filing, the trial court shall give force to the pro se filing without 

offending considerations of hybrid representation), relying on

Commonwealth v. Cooper, 27 A.3d 994 (Pa. 2011).

Considering Appellant filed a timely post-sentence motion and the trial 

court denied the same on February 3, 2022, the notice of appeal filed by 

Appellant’s counsel on March 2, 2022 was timely filed thereby perfecting 

jurisdiction with this Court. Pa.R.Crim.P. 720(A)(2)(a) (stating, if a defendant 

files a post-sentence motion, the notice of appeal shall be filed within 30 days 

of the entry of the order deciding the motion). Therefore, we proceed to 

address counsel’s petition to withdraw and the accompanying Anders brief, 

both alleging this appeal is frivolous.

“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) (citation omitted). To withdraw pursuant to Anders, “counsel must file 

a brief that meets the requirements established by our Supreme Court in 

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).” 
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Commonwealth v. Harden, 103 A.3d 107, 110 (Pa. Super. 2014) (parallel 

citation omitted). Specifically, counsel’s Anders brief must comply with the 

following requisites:

(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. (citation omitted). Pursuant to Commonwealth v. Millisock, 873 A.2d 

748 (Pa. Super. 2005), and its progeny, “[c]ounsel also must provide a copy 

of the Anders brief to his[, or her,] client.” Commonwealth v. Orellana, 

86 A.3d 877, 880 (Pa. Super. 2014) (internal quotation marks and citation 

omitted). The brief must be accompanied by a letter that advises the client 

of the option 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.” Id. “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 and internal quotation marks omitted).
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Instantly, Appellant’s counsel satisfied the technical requirements of 

Anders and Santiago. In his Anders brief, counsel identified the pertinent 

factual and procedural history and made citation to the record. Counsel raises 

a claim challenging Appellant’s sentence on the ground the sentence violated 

the negotiated plea agreement. Counsel notes that this claim could arguably 

support an appeal but, ultimately, counsel concludes the appeal is frivolous.

Counsel also attached to his petition to withdraw a letter to Appellant that 

fulfills the notice requirements of Millisock. Appellant has not filed a response 

to counsel’s letter, the Anders brief, or the petition to withdraw. Accordingly, 

we proceed to conduct an independent review of the record to determine 

whether the appeal is wholly frivolous.

In his Anders brief, counsel for Appellant challenges Appellant’s 

sentence on the ground the trial court violated the terms of the negotiated 

plea agreement by ordering Appellant’s aggregate sentence imposed in the 

instant case to run consecutively to a sentence Appellant was currently 

serving. Anders Brief at 5-13. At first glance, this claim appears to challenge 

the discretionary aspects of Appellant’s sentence, namely whether the trial 

court abused its discretion in imposing a sentence that was set to run 

consecutively, rather than concurrently, to the sentence Appellant was already 

serving. An examination of Appellant’s post-sentence motion and, in 

particular, the argument Appellant put forward at the February 3, 2022 

hearing, however, demonstrates that Appellant petitioned the trial court to 

permit him to withdraw his guilty plea on the ground the trial court violated 
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the terms of the negotiated plea agreement.17 See N.T., 2/3/22, at 9 (stating, 

“I [(Appellant)] wanted to take my plea back because it was not what we 

agreed to. So if you [(trial court)] can, I would like a fair trial. I would like 

to go to trial on these cases please.”).

“It is well-settled that the decision whether to permit a defendant to 

withdraw a guilty plea is within the sound discretion of the trial court” and, as 

such, this Court reviews a trial court order denying a motion to withdraw a 

guilty plea for an abuse of discretion. Commonwealth v. Hart, 174 A.3d 

____________________________________________

17 We are cognizant that “where a defendant pleads guilty pursuant to a plea 

agreement specifying particular penalties, the defendant may not seek a 

discretionary appeal relating to those agreed-upon penalties.” 

Commonwealth v. Brown, 982 A.2d 1017, 1019 (Pa. Super. 2009) (citation 

omitted) (stating that, “[p]ermitting a defendant to petition for such an appeal 

would undermine the integrity of the plea negotiation process and could 

ultimately deprive the Commonwealth of sentencing particulars for which it 

bargained”), appeal denied, 990 A.2d 726 (Pa. 2010). Where the negotiated 

plea agreement specifies some but not all aspects of the sentence, i.e., a 

“hybrid” guilty plea, a defendant may seek a discretionary appeal related to 

the aspects of the sentence that were not agreed upon in the negotiation 

process. Commonwealth v. Heaster, 171 A.3d 268, 271 (Pa. Super. 2017), 

appeal denied, 181 A.3d 1078 (Pa. 2018).

In the instant case, Appellant does not allege that the trial court, in fixing its 

sentence, abused its discretion by imposing consecutive, rather than

concurrent, punishments for the aforementioned offenses. Instead, in filing 

his post-sentence motion, Appellant alleged that he should be permitted to 

withdraw his guilty plea because he did not receive what he bargained for in 

the plea negotiation process, namely that the sentence in the instant case 

would run concurrently to the sentence Appellant was already serving. As 

such, we decline to treat Appellant’s appeal as raising a challenge to the 

discretionary aspect of his sentence.
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660, 664 (Pa. Super. 2017), relying on Commonwealth v. Broaden, 980 

A.2d 124 (Pa. Super. 2009), appeal denied, 992 A.2d 885 (Pa. 2010).

Although no absolute right to withdraw a guilty plea exists in 

Pennsylvania, the standard applied differs depending on whether 

the defendant seeks to withdraw the plea before or after 

sentencing. When a defendant seeks to withdraw a plea after 

sentencing, he[, or she,] must demonstrate prejudice on the order 

of manifest injustice. [A] defendant may withdraw [the] guilty 

plea after sentencing only where necessary to correct manifest 

injustice. Thus, post-sentence motions for withdrawal are subject 

to higher scrutiny since the courts strive to discourage the entry 

of guilty pleas as sentence-testing devices.

Hart, 174 A.3d at 664 (citations and quotation marks omitted).

“Manifest injustice occurs when the plea is not tendered knowingly, 

intelligently, voluntarily, and understandingly.” Id. (citation omitted).

In determining whether a plea is valid, the court must examine 

the totality of circumstances surrounding the plea. Pennsylvania 

law presumes a defendant who entered a guilty plea was aware of 

what he[, or she,] was doing, and the defendant bears the burden 

of proving otherwise.

Id. (citations and quotation marks omitted).

Here, at Appellant’s January 12, 2022 sentencing hearing, after 

summarizing the potential sentencing terms to which Appellant was exposed 

for the aforementioned criminal offenses (see N.T., 1/12/22, at 8-9), the trial 

court stated:

The other part of this plea agreement, which is probably the most 

important, is that all these sentences run together or concurrently. 

Meaning, every day you spend in jail would count towards all four 

sentences. And, lastly, that however I decide to mix and match, 

I cannot impose a minimum period of incarceration greater than 

three years. If I went even one day over the 3-year minimum, 
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that would violate your plea agreement[.] However, even though 

we have a fixed agreement between the lawyers on the minimum, 

there is no agreement on the maximum. So, technically, if I 

wanted to, I could – for instance, if I ran the first case, the 

aggravated assault and the resisting arrest[,] consecutive[ly] and 

give you a 3-year minimum, I could make your maximum there 

up to 12 years[’ incarceration.]

N.T., 1/12/22, at 9-10 (paragraph formatting modified). Afterward, the trial 

court asked Appellant if he understood the terms of the negotiated plea 

agreement, to which Appellant responded in the affirmative. Id. Additionally, 

the following exchange occurred pertinent to Appellant’s understanding of the 

negotiated plea agreement:

[Commonwealth:] Just so there’s no confusion about and 

[Appellant] understands, the overall 

agreement would be for a flat fixed 36 

months with the maximum up to Your 

Honor, and the highest maximum that I 

could see is 15 years. If I’m 

understanding the plea correctly – and I 

just want to make sure that I’m on the 

same page – the worst case scenario for 

[Appellant] could be the 36-month 

minimum, which is agreed upon, and a 

15-year maximum. Just so that’s clear for 

[Appellant] because it looked like maybe 

there was some confusion.

[Trial Court:] . . . [Y]ou’re right. Fifteen years is the –

[Commonwealth:] Is the highest max[imum].

[Trial Court:] You’re right. I could make everything run 

concurrently with that being the highest 

max[imum] there.

. . .

[Trial Court:] To make sure I have a complete 

understanding of the nature of this plea 
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agreement, is there an agreement 

between counsel that these sentences [in 

the instant case] run concurrent[ly] to the 

sentence [Appellant is already serving]?

[Commonwealth:] No. I think [Appellant’s counsel] is asking 

for that, and I said I would – I’ll remain 

silent on the situation, Judge. I’ll leave it 

to your discretion but there’s no 

agreement that it run concurrently.

[Trial Court:] Certainly within these four cases, there’s 

a package but no binding agreement with 

regard to [the] sentence [already 

imposed on Appellant].

[Commonwealth:] That’s correct.

[Appellant’s counsel:] . . . Yes, [Appellant] is already serving 

[a] sentence [in another case] and my 

request is going to be running [the 

sentence in the instant case] 

concurrently[.]

Id. at 16, 28-29. In imposing the individual sentences, as detailed supra, the 

trial court concluded by stating,

The sentence [in Case 3090-2021] also runs concurrent[ly] with 

that imposed in [Case 3089-2021, Case 1599-2021, and Case 

1598-2021]. If I didn’t already mention, [the sentence imposed 

in Case 3089-2021] also runs concurrent[ly] with the [sentence 

imposed in Case 1599-2021 and the sentence imposed in Case 

1598-2021], but [the sentence imposed in Case 3089-2021] runs 

consecutive[ly] to any sentence currently being served by 

[Appellant].

Id. at 37. The trial court then asked the Commonwealth and Appellant’s 

counsel if there was anything else to add, to which both the Commonwealth 

and counsel for Appellant replied in the negative. Id.
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The foregoing exchange at Appellant’s plea hearing reflects that the trial 

court possessed authority to impose a sentence at Case 3089-2021 

consecutive to a term of imprisonment that Appellant was already serving. 

Based upon the totality of circumstances surrounding Appellant’s entry into 

guilty pleas on the criminal offenses charged in this case, Appellant failed to 

demonstrate that his sentence differed with the terms of the negotiated plea 

agreement. The terms of the negotiated plea agreement included a minimum 

term of 3 years’ incarceration with no agreed upon maximum, but an 

understanding that the potential maximum was 15 year’s incarceration, and 

that the four sentences would run concurrently to each other but consecutively 

to the sentence Appellant was already serving. As such, Appellant entered a 

knowing, intelligent, voluntary plea and received the benefits to which he was 

entitled under the negotiated plea agreement.

Upon review, we conclude that the record supports counsel’s 

assessment that Appellant’s appeal is wholly frivolous. Moreover, our 

independent review of the entire record reveals no additional non-frivolous 

claims.18 Therefore, we grant counsel’s petition to withdraw and affirm the 

judgment of sentence.

____________________________________________

18 Even if the issue raised in Appellant’s pro se post-sentence motion were 

viewed as a challenge to the discretionary aspects of sentence, this issue 

would be without arguable merit. See Commonwealth v. Austin, 66 A.3d 

798, 808 (Pa. Super 2013) (stating, “Pennsylvania law affords the sentencing 

court discretion to impose its sentence concurrently or consecutively to other 

sentences being imposed at the same time or to sentences already imposed”
J-S45011-22

- 19 -

Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/13/2023

____________________________________________

(citation and original quotation marks omitted)), appeal denied, 77 A.3d 1258 

(Pa. 2013).