J-S52010-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CHARMAINE WILLIAMS,

Appellant No. 1754 WDA 2014

Appeal from the Judgment of Sentence May 14, 2014

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0007565-2013

BEFORE: SHOGAN, OLSON, and WECHT, JJ.

MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 30, 2015

Appellant, Charmaine Williams, appeals from the judgment of sentence 

entered following her convictions of three counts of driving under the 

influence (“DUI”), one count of driving while operating privilege is suspended 

or revoked, and one count of operating a vehicle without required financial 

responsibility. Appellate counsel has filed a petition to withdraw his 

representation and a brief pursuant to Anders v. California, 386 U.S. 738 

(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), which 

govern a withdrawal from representation on direct appeal. We grant 

counsel’s petition to withdraw and affirm the judgment of sentence.

We summarize the peculiar history of this case as follows. On the 

evening of November 23, 2012, Appellant was involved in a single-vehicle 

accident at East Street and Madison Avenue in the north side section of 
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Pittsburgh. Appellant drove her vehicle into a concrete barrier causing her 

airbags to deploy. Police arrived at the scene and conducted field sobriety 

tests, which Appellant failed. Appellant was arrested and a breathalyzer test 

revealed her blood alcohol content (“BAC”) was .261%. Appellant was 

charged with three counts of DUI, one count of driving with a suspended 

license (DUI related), and one count of operating a vehicle without the 

required financial responsibility.

On January 23, 2014, Appellant pled guilty to the crimes stated above. 

On May 14, 2014, the trial court imposed the following sentence upon 

Appellant:

Count 1- DUI: Highest Rate of Alcohol, 2nd Offense: a term of 

incarceration of twelve to thirty-six months, to be followed by 2 

years of state probation, and a fine of $2,500.00;

Count 2- DUI: General Impairment, 2nd Offense: no further 

penalty;

Count 3- DUI: General Impairment, 3rd Offense: no further 

penalty;

Count 4- Driving While Operating Privilege is Suspended or 

Revoked: DUI-Related, BAC Greater than .02%: a term of 

incarceration of ninety days to be served concurrent to the 

sentence at Count 1, and a fine of $1,000.00; and

Count 5- Operating Vehicle Without Required Financial 

Responsibility: a fine of $300.00.

Order of Sentence, 5/14/14, at 1.

On May 22, 2014, Appellant filed a timely motion to modify sentence, 

asking the trial court to impose a recidivism risk reduction incentive (“RRRI”) 
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sentence pursuant to the RRRI statute. 61 Pa.C.S. §§ 4501-4512. In an 

order dated May 30, 2014, the trial court granted Appellant’s motion to 

modify sentence. In an amended order generated on July 14, 2014, the trial 

court amended Appellant’s sentence to include an RRRI minimum sentence 

of nine months of incarceration. However, due to an apparent breakdown in 

the court system, neither the trial court’s order of May 30, 2014, nor the 

amended sentence prepared on July 14, 2014, was entered upon the trial 

court docket in Appellant’s case until October 7, 2014, nor were they sent to 

Appellant’s counsel of record.

In the interim, on September 22, 2014, the Allegheny County 

Department of Court Records entered an order denying, by operation of law, 

Appellant’s motion to modify sentence. Recognizing the error, on October 7, 

2014, the trial court entered an order specifically vacating the order dated 

September 22, 2014.1 Appellant filed this appeal on October 22, 2014.

In lieu of filing a Pa.R.A.P. 1925(b) statement, Appellant’s counsel filed 

a statement of intent to file an Anders brief, pursuant to Pa.R.A.P. 

____________________________________________

1

 The text of the trial court’s order dated October 7, 2014, provides as 

follows:

AND NOW, to-wit, this 7th day of October, 2014, the Order 

of Court dated September 22, 2014, denying [Appellant’s] Post 

Sentence Motion by Operation of Law, is hereby VACATED. This 

Court, on May 30, 2014, granted [Appellant’s] Motion to Modify 

Sentence.

Order, 10/7/14, at 1.
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1925(c)(4). On February 3, 2015, the trial court filed a statement indicating 

it was not preparing a Pa.R.A.P. 1925(a) opinion in light of the notice of 

intent to withdraw filed by appellate counsel under Pa.R.A.P. 1925(c)(4).

As noted, counsel has filed a petition to withdraw from representation. 

Before we address the questions raised on appeal, we first must resolve 

appellate counsel’s request to withdraw. Commonwealth v. Cartrette, 83 

A.3d 1030 (Pa. Super. 2013) (en banc). There are procedural and briefing 

requirements imposed upon an attorney who seeks to withdraw on appeal. 

The procedural mandates are that counsel must

1) petition the court for leave to withdraw stating that, after 

making a conscientious examination of the record, counsel has 

determined that the appeal would be frivolous; 2) furnish a copy 

of the brief to the defendant; and 3) advise the defendant that 

he or she has the right to retain private counsel or raise 

additional arguments that the defendant deems worthy of the 

court’s attention.

Id. at 1032 (citation omitted).

In this case, counsel has satisfied those directives. Within the petition 

to withdraw, counsel averred that he conducted a conscientious review of 

the record and pertinent legal research. Following that review, counsel 

concluded that the present appeal is frivolous. Counsel sent Appellant a 

copy of the Anders brief and petition to withdraw, as well as a letter, a copy 

of which is attached to the petition to withdraw. In the letter, counsel 

advised Appellant that she could represent herself or that she could retain 

private counsel.
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We now examine whether the brief satisfies the Supreme Court’s 

dictates in Santiago, which provide that

in the Anders brief that accompanies court-appointed counsel’s 

petition to withdraw, counsel 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.

Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361).

Counsel’s brief is compliant with Santiago. It sets forth the 

procedural history of this case and outlines pertinent case authority. We 

thus conclude that the procedural and briefing requirements for withdrawal 

have been met.

Counsel presents the following issues for our review:

I. Whether [Appellant] can challenge on direct appeal the validity 

of her guilty plea?

II. Whether [Appellant] can challenge on direct appeal the 

discretionary aspects of her sentence?

III. Whether [Appellant] can challenge on direct appeal the 

disposition of her Motion to Modify Sentence?

Appellant’s Brief at 7.

Appellant’s first issue discusses a challenge to the validity of her guilty 

plea. For the following reasons, we conclude that a challenge to the validity 

of her guilty plea is waived.
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In assessing challenges to the validity of a guilty plea, we are guided 

by the following standard of review. “Settled Pennsylvania law makes clear 

that by entering a guilty plea, the defendant waives [her] right to challenge 

on direct appeal all nonjurisdictional defects except the legality of the 

sentence and the validity of the plea.” Commonwealth v. Lincoln, 72 

A.3d 606, 609 (Pa. Super. 2013) (citation omitted), appeal denied, 87 A.3d 

319 (Pa. 2014). Also, a defendant may challenge the discretionary aspects 

of sentencing if the plea agreement contains no sentencing restrictions. 

Commonwealth v. Hill, 66 A.3d 359, 363 (Pa. Super. 2013). “Our law 

presumes that a defendant who enters a guilty plea was aware of what [she] 

was doing. [She] bears the burden of proving otherwise.” Commonwealth 

v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 2011) (citation omitted). “[A] 

defendant has no absolute right to withdraw a guilty plea; rather, the 

decision to grant such a motion lies within the sound discretion of the trial 

court.” Commonwealth v. Muhammad, 794 A.2d 378, 382 (Pa. Super. 

2002).

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. Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i). Failure to 

employ either measure results in waiver. Historically, 

Pennsylvania courts adhere to this waiver principle because it is 

for the court which accepted the plea to consider and correct, in 

the first instance, any error which may have been committed.

Lincoln, 72 A.3d at 609-610 (Internal quotation marks and some citations 

omitted).
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Our review of the record reveals that Appellant did not object to her 

plea prior to or during the January 23, 2014 guilty plea and May 14, 2014 

sentencing hearings. Although Appellant did file a timely post-sentence 

motion on May 22, 2014, she simply sought to modify her sentence and did 

not seek to withdraw her plea despite being informed of her right to do so. 

N.T., 5/14/14, at 6; Motion to Modify Sentence, 5/22/14, at 1-2. As noted 

above, in order to preserve an issue related to the validity of a guilty plea, 

an appellant must either object during the colloquy or otherwise raise the 

issue at the guilty plea hearing, the sentencing hearing, or through a postsentence motion. Lincoln. See also Commonwealth v. Tareila, 895 

A.2d 1266, 1270 n.3 (Pa. Super. 2006) (explaining that in order to preserve 

an issue related to the guilty plea, an appellant must either object at the 

sentence colloquy or otherwise raise the issue at the sentencing hearing or 

through a post-sentence motion); Pa.R.A.P. 302(a) (stating that “[i]ssues 

not raised in the lower court are waived and cannot be raised for the first 

time on appeal”). Accordingly, Appellant has waived any challenge to the 

validity of her guilty plea.

Appellant’s second issue discusses a challenge to the discretionary 

aspects of her sentence. Appellant waived any challenges to the 

discretionary aspects of her sentence by failing to raise such issues before 

the trial court.
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It is well settled that there is no absolute right to appeal the 

discretionary aspects of a sentence. Commonwealth v. Hartle, 894 A.2d 

800, 805 (Pa. Super. 2006). Rather, an appellant’s appeal should be 

considered to be a petition for allowance of appeal. Commonwealth v. 

W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007).

As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa. 

Super. 2010):

An appellant challenging the discretionary aspects of his 

sentence must invoke this Court’s jurisdiction by satisfying a 

four-part test:

We conduct a four-part analysis to determine: (1) 

whether appellant has filed a timely notice of appeal, 

see Pa.R.A.P. 902 and 903; (2) whether the issue 

was properly preserved at sentencing or in a motion 

to reconsider and modify sentence, see Pa.R.Crim.P. 

720; (3) whether appellant’s brief has a fatal defect, 

Pa.R.A.P. 2119(f); and (4) whether there is a 

substantial question that the sentence appealed from 

is not appropriate under the Sentencing Code, 42 

Pa.C.S.A. § 9781(b).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super. 

2006)). Objections to the discretionary aspects of a sentence are generally 

waived if they are not raised at the sentencing hearing or in a motion to 

modify the sentence imposed. Id. (citing Commonwealth v. Mann, 820 

A.2d 788 (Pa. Super. 2003)).

In Commonwealth v. Reeves, 778 A.2d 691 (Pa. Super. 2001), we 

reaffirmed the principle articulated in Commonwealth v. Jarvis, 663 A.2d 

790 (Pa. Super. 1995), wherein this Court observed that, although 
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Pa.R.Crim.P. 1410 (presently Rule 720) characterizes post-sentence motions 

as optional, the rule expressly provides that only issues raised in the trial 

court will be deemed preserved for appellate review. Applying this principle, 

the Reeves Court held that an objection to a discretionary aspect of a 

sentence is waived if not raised in a post-sentence motion or during the 

sentencing proceedings. See also Commonwealth v. Parker, 847 A.2d 

745 (Pa. Super. 2004) (holding challenge to discretionary aspect of sentence 

was waived because appellant did not object at sentencing hearing or file 

post-sentence motion); Commonwealth v. Petaccio, 764 A.2d 582 (Pa. 

Super. 2000) (same).

Initially, we conclude that the first requirement of the four-part test is 

met because Appellant brought this direct appeal in a timely manner 

following the entry on the docket of the amended sentence. However, our 

review of the record reflects that Appellant did not meet the second 

requirement because she did not raise a challenge to the discretionary 

aspects of her sentence in a post-sentence motion or at the time of 

sentencing. Specifically, in her post-sentence motion, Appellant only sought 

to have the trial court consider her RRRI eligibility, which the trial court 

failed to do at the time of the sentencing hearing. Motion to Modify 
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Sentence, 5/22/14, at 1-2.2 To the extent that Appellant now presents 

another issue attempting to raise a challenge to the discretionary aspect of 

sentencing, such a claim is waived due to Appellant’s failure to present it in 

her post-sentence motion. Reeves. Therefore, because Appellant did not 

raise an issue challenging the discretionary aspect of sentencing in her postsentence motion, it is waived and we are precluded from addressing the 

merits of such an issue on appeal.

Appellant’s third issue discusses whether Appellant may challenge on 

direct appeal the disposition of her motion to modify sentence. Because the 

trial court granted Appellant relief on her post-sentence motion, we conclude 

that this issue lacks merit.

As previously mentioned, at the time of Appellant’s guilty plea and 

sentencing, the trial court did not make a determination regarding 

Appellant’s eligibility for an RRRI sentence. Subsequently, Appellant filed a 

timely post-sentence motion to modify sentence, which requested the trial 

court to consider Appellant’s RRRI eligibility. Thereafter, the trial court 

entered an amended order of sentence, which sentenced Appellant to a term 

of incarceration of twelve to thirty-six months for the conviction of DUI, 

highest rate of alcohol. In addition, the trial court set Appellant’s RRRI 

____________________________________________

2

 A challenge to the sentencing court’s failure to determine whether an 

appellant is RRRI-eligible is “a nonwaivable challenge to the legality of her 

sentence.” Commonwealth v. Robinson, 7 A.3d 868, 871 (Pa. Super. 

2010).
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minimum sentence at nine months. The nine-month sentence is in 

compliance with section 4505 of the RRRI statute, which provides, in 

pertinent part, as follows:

§ 4505. Sentencing.

* * *

(c) Recidivism risk reduction incentive 

minimum sentence. -- If the court determines 

that the defendant is an eligible offender or the 

prosecuting attorney has waived the eligibility 

requirements under subsection (b), the court shall 

enter a sentencing order that does all of the 

following:

* * *

(2) Imposes the recidivism risk reduction 

incentive minimum sentence. The 

recidivism risk reduction incentive 

minimum shall be equal to threefourths of the minimum sentence 

imposed when the minimum 

sentence is three years or less.

61 Pa.C.S. § 4505(c)(2) (emphasis added).

Appellant’s nine-month RRRI sentence imposed by the trial court in the 

amended order of sentence is three-fourths of Appellant’s minimum 

sentence of twelve months. Thus, the trial court did impose a sentence in 

compliance with 61 Pa.C.S. § 4505(c)(2). Hence, there is no merit to a

possible claim by Appellant that the trial court erred in granting her motion 

to modify sentence and in fashioning her RRRI minimum sentence.
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We also have independently reviewed the record in order to determine 

whether there are any non-frivolous issues present in this case that 

Appellant may raise. Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. 

Super. 2014). Having concluded that there are no meritorious issues, we 

grant Appellant’s counsel permission to withdraw, and affirm the judgment 

of sentence.

Petition of counsel to withdraw is granted. Judgment of sentence 

affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/30/2015