J-S75024-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MICHAEL F. DRAKES

Appellant No. 733 EDA 2014

Appeal from the Judgment of Sentence January 31, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0006408-2013 

BEFORE: ALLEN, J., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 23, 2014

Michael F. Drakes appeals from his judgment of sentence imposed on 

January 31, 2014 in the Court of Common Pleas of Philadelphia County after 

he entered a negotiated guilty plea to one count of retail theft as a 

misdemeanor of the first degree. Counsel has petitioned this Court to 

withdraw her representation of Drakes pursuant to Anders, McClendon and 

Santiago.

1

 Upon review, we affirm Drakes’ judgment of sentence and grant 

counsel’s petition to withdraw.

In order to withdraw pursuant to Anders and McClendon, counsel 

must: 1) petition the Court for leave to withdraw, certifying that after a 

____________________________________________

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

McClendon, 434 A.2d 1185 (Pa. 1981); and Commonwealth v. Santiago, 

978 A.2d 349 (Pa. 2009). 
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thorough review of the record, counsel has concluded the issues to be raised 

are wholly frivolous; 2) file a brief referring to anything in the record that 

might arguably support an appeal; and 3) furnish a copy of the brief to the 

appellant and advise him of his right to obtain new counsel or file a pro se

brief to raise any additional points that the appellant deems worthy of 

review. Commonwealth v. Hernandez, 783 A.2d 784, 786 (Pa. Super. 

2001). In Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), the

Pennsylvania Supreme Court held that, in order to withdraw under Anders, 

counsel must also state his reasons for concluding his client’s appeal is 

frivolous.

Instantly, counsel’s petition states that she has made an examination 

of the record and concluded the appeal is wholly frivolous. Counsel indicates 

that she supplied Drakes with a copy of the brief and a letter explaining his 

right to proceed pro se,

2 or with newly-retained counsel, and to raise any 

other issues he believes might have merit. Counsel also has submitted a 

brief, setting out in neutral form two issues of arguable merit and, pursuant 

to the dictates of Santiago, explains why she believes the issues to be 

frivolous. Thus, counsel has substantially complied with the requirements 

for withdrawal. 

____________________________________________

2 Drakes has not submitted any additional or supplemental filings to this 

Court. 
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Counsel having satisfied the above requirements, this Court must 

conduct its own review of the proceedings and render an independent 

judgment as to whether the appeal is, in fact, wholly frivolous. 

Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).

On appeal, Drakes challenges the validity of his guilty plea and the 

legality of his sentence.

Drakes first claims that his guilty plea was invalid. To be valid, a 

guilty plea must be voluntary, knowing and intelligent. Commonwealth v.

Diehl, 61 A.3d 265, 268 (Pa. Super. 2013). A guilty plea colloquy must 

include an inquiry into whether: (1) the defendant understands the nature 

of the charge to which he is pleading guilty; (2) there is a factual basis for 

the plea; (3) the defendant understands that he has the right to a jury trial; 

(4) the defendant understands that he is presumed innocent until found 

guilty; (5) the defendant is aware of the permissible range of sentences; and 

(6) the defendant is aware that the court is not bound by the terms of any 

plea agreement unless it accepts the agreement. Commonwealth v. 

Shekerko, 639 A.2d 810, 813 (Pa. Super. 1994); see also Pa.R.Crim.P. 

590 (comment). In determining whether a defendant’s plea was knowing, 

intelligent and voluntary, appellate courts consider the totality of the 

circumstances, which include the contents of both the oral and written plea 

colloquies. Commonwealth v. Fears, 836 A.2d 52, 64 (Pa. 2003).
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Here, the Honorable Linda Carpenter engaged in an on-the-record 

colloquy with Drakes in which she advised him of the nature of the charges 

against him, N.T. Guilty Plea, 1/31/14, at 9; the permissible range of 

sentences, id.; the factual basis of the plea, id. At 12-13; that he had a 

right to a jury trial, id.; that he would be presumed innocent until proven 

guilty, id.; that by pleading guilty he would be in violation of his probation, 

id. at 10; and that she would be imposing the recommended sentence of 

three years’ probation, id. at 11. Moreover, Drakes acknowledged that he 

completed and signed a written plea colloquy prior to the hearing. Id. at 6. 

Accordingly, Drakes’ plea was entered in a knowing, intelligent and voluntary 

manner.

Next, Drakes asserts that his sentence is illegal. Drakes was 

sentenced to three years’ probation for one count of retail theft (M1). The 

maximum possible sentence for retail theft as a misdemeanor of the first 

degree is five years’ imprisonment. See 18 Pa.C.S.A. § 1104. Accordingly, 

Drakes’ sentence of three years’ probation was well within the statutory 

maximum and, as such, not illegal. 

Judgment of sentence affirmed; petition to withdraw as counsel 

granted.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/23/2014