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

v.

MARKUS TROY CARWELL

Appellant : : : : : : : : : 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 s he alleges that this direct appeal is wholly frivolous. Agreeing with counsel’s assessment, we grant h er petition to withdraw and affirm Carwell’s judgment of se ntence.

_________________ __________ ______ ____ _______ 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).J

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The Commonwealth originally charged Carwell with burglary, robbery, criminal conspiracy, aggravated assault, simple assault 2 , terroristic threats 3 and unlawful restraint. 4 These charges arose from an incident in which Carwell entered the victim’s home with other s , 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 r epresent Carwell. On November 21, 2 0 1 7, Carwell entered a negotiated plea of guilty to burglary, robbery, criminal conspiracy, and aggravated assault; the three other charges were nol prossed

. The substantial fi nes 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

. O n 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 li e u of a stat e ment of errors complained of on appeal. The trial court filed its Opinion S ur Appeal on January 22, 2018. Carwell filed no response.

_________________ __________ ______ ____ _______ 2 18 Pa.C.S.A. § 2701(a)(3). 3 18 Pa.C.S.A. § 2706. 4 18 Pa.C.S.A. § 2902.J

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“When presented with an Anders brief, this Court may not review the merits of the underlying issues without fir st 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 th e 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.J

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Commonwealth v. Orellana , 86 A.3d 877, 880 (Pa. Super. 2014) (citation omitted). Our review reveals that Carwell’s counsel substantial ly 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 appe al 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

- frivo lous 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 vali d. See Anders Brief at 9

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. Specifically, Carwell claims that he was forced into taking the plea and , on appeal , desires to challenge the voluntariness of it. O ur review of the record , however, reveals that contrary to his argumen t , 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 cou r t is required t o 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 presumptionJ

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of innocence; (5) the permissible range of sentences; and (6) the judge’s authority to depart from any recommended sentence.” Commonweal th 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 surround ing the entry of that plea.” Baney , 794 A.2d at 132

. The record in this case shows that t he trial court conducted a thorough ,
on - the

- record inquiry during the g uilty plea colloquy

. T he trial court co vered each of the areas required by law

. Thus, Carwell c learly 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, w hen 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 wi ll. A n “ appellant is bound by
statement s made during plea colloquy and may no t successfully assert claim s that contradict such statements. ” Baney , 860 A.2d at 132.J

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C arwell further claims that both his trial cou nsel 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 a n attorney from the public defender’s office . At the pre

- trial conference , however , that attorney was excused from th e 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 wo uld 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 deferr ed to PCRA review . . . such claims should not be reviewed upon direct appeal.” Commonwealth v. Ho l mes , 79 A.3d 562, 576 (Pa. 2013). Consequently, such claims raised by Carwell are premature, and we w ill not address them in his direct appeal

. Considering the totality of the cir c umstances 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 issue s 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.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 0 7/05/2018