J-S26041-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JACOB LEE DIAMOND NETHERTON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 107 MDA 2022

Appeal from the Judgment of Sentence Entered December 20, 2021

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

No(s): CP-08-CR-0000575-2021

BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED: AUGUST 23, 2022

Appellant, Jacob Lee Diamond Netherton, appeals from the judgment of 

sentence imposed after he pleaded guilty to one count of Indecent Assaultcomplainant less than 16 years of age, 18 Pa.C.S. § 3126(a)(8). Counsel has 

filed a petition to withdraw and a brief pursuant to Anders v. California, 386 

U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 

2009), on the grounds that Appellant’s appeal is wholly frivolous. We grant 

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

On June 4, 2021, Appellant was charged with Indecent Assault and 

Corruption of Minors for alleged conduct occurring when he was 18 years of 

age and his alleged victim was 13 years of age. On November 8, 2021, 

Appellant entered an open plea of nolo contendere to Indecent Assault, and 

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* Former Justice specially assigned to the Superior Court.
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on December 20, 2021, he received a lower-end standard range sentence of 

eight months to 23 months, 29 days’ incarceration that aligned with defense 

counsel’s request for a lower-end standard guideline range sentence.1, 2 

The trial court denied Appellant’s post-sentence motion on January 4, 

2022, and this timely appeal followed. However, counsel has filed an Anders

brief and a petition to withdraw. Counsel’s Anders brief identifies three 

issues: 

1. Was the sentence imposed on Defendant excessive?

2. Did the trial judge have a conflict of interest such that Her Honor

should have recused herself from hearing the case? 

3. Did the trial court error in denying the Post Sentence Motion to 

Withdraw the [plea of nolo contendere] filed by the Defendant?

Anders brief, at 3.

Before we may address the issues counsel has identified, we must first 

attend to counsel's request to withdraw. See Commonwealth v. Daniels, 

999 A.2d 590, 593 (Pa. Super. 2010). The petition to withdraw must state 

that, “after making a conscientious examination of the record, counsel has 

determined that the appeal would be frivolous.” Commonwealth v. 

Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en banc). Counsel must 

also advise the defendant that he “has the right to retain private counsel or 

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1 The standard range sentence applicable to Appellant was six to 12 months.

2 At the sentencing hearing of December 20, 2021, Appellant also received a 

sentence on one count of Disorderly Conduct from a separate docket.
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raise additional arguments that [she] deems worthy of the court's 

attention.” Id.

Counsel also is required to file an Anders brief and provide a copy to 

the client. The Anders brief must do all of the following:

(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. (quoting Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009)).

Upon review, it appears that counsel has complied with the procedural 

requirements of Anders, Commonwealth v. McClendon, 434 A.2d 1185 

(Pa. 1981), and their progeny. His petition to withdraw states that he 

conducted a conscientious examination of the record and found the appeal to 

be wholly frivolous. Counsel provided Appellant with a letter advising him of 

his rights pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. 

Super. 2005) (requiring advisement of right to retain new counsel or to 

proceed pro se in response to the Anders brief). Both the letter and the 

withdrawal petition are attached to counsel’s Anders brief, which contains 

proof of service on Appellant. The Millisock letter also references both the 

petition and the brief as having been enclosed with the letter. 
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Counsel’s Anders brief substantially complies with the requirements set 

forth in Santiago. It provides a summary of the case's procedural history 

and facts—although without citations to the record; identifies the issues that 

he believes arguably support the appeal; states counsel's conclusion that the 

appeal is frivolous; and explains his reasons for that conclusion. See id. The 

brief also contains copies of Appellant’s Pa.R.A.P. 1925(b) statement and the 

trial court opinion. To date, Appellant has not responded to the petition to 

withdraw as counsel.

The first issue raised in the Anders brief addresses Appellant’s 

contention that his sentence was too harsh. This claim goes to the 

discretionary aspects of his sentence. See Commonwealth v. Caldwell, 

117 A.3d 763, 768 (Pa. Super. 2015). We engage in a four-step inquiry before 

reaching the merits of a challenge to discretionary aspects of sentencing:

(1) the filing a timely notice of appeal; (2) properly preserving the 

issue at sentencing or in a motion to reconsider and modify the 

sentence; (3) complying with Pa.R.A.P. 2119(f), which requires a 

separate section of the brief setting forth “a concise statement of 

the reasons relied upon for allowance of appeal with respect to the 

discretionary aspects of a sentence[;]” and (4) presenting a 

substantial question that the sentence appealed from is not 

appropriate under the Sentencing Code, 42 Pa.C.S. § 9781(b).

Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018)(en 

banc) (citation omitted).
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Here, Appellant timely appealed, but neither at his sentencing hearing 

nor in his post-sentence motion did he claim his sentence was excessive. 

Accordingly, he has waived this issue.3

The second issue raised in the Anders brief submits that the trial judge 

had a conflict of interest, requiring recusal, because she presided over 

Appellant’s various juvenile proceedings. Appellant contends, therefore, that 

he was denied a fair guilty plea hearing and sentencing hearing.

This issue is waived, as Appellant never raised it before the trial court. 

See Commonwealth v. Rominger, 199 A.3d 964 (Pa. Super. 2018) (holding 

motion to recuse trial judge waived where first raised in post-sentence 

motion). Here, Appellant first raised the issue of recusal in his Pa.R.A.P. 

1925(b) concise statement.

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3 Even if Appellant had preserved this issue, we discern no support in the 

record for Appellant’s assertion that his sentence at the low end of the 

guideline standard range raised a substantial question implicating either a 

specific provision of the Sentencing Code or the fundamental norms which 

underlie the sentencing process. See Caldwell, 117 A.3d at 768 (instructing 

the manner in which an excessiveness claim may sufficiently articulate raise 

a substantial question.)

In addition, we note Appellant’s brief does not contain a Rule 2119(f) 

statement. However, where counsel has filed an Anders brief, the failure to 

include a Rule 2119(f) statement in the brief does not preclude us from 

determining whether the appeal is wholly frivolous. See Commonwealth v. 

Zeigler, 112 A.3d 656, 661 (Pa. Super. 2015) (citations omitted). Thus, our 

review would not be barred by the lack of a Rule 2119(f) statement.
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Even assuming, arguendo, that the issue were not waived,4 we would 

find it raises a claim that is without support in the record. “The party who 

asserts that a trial judge must be disqualified bears the burden of producing 

evidence establishing bias, prejudice, or unfairness necessitating recusal.” 

Commonwealth v. Darush, 459 A.2d 727, 731 (Pa. 1983). 

A review of the plea and sentencing hearings reveals no indication of 

bias, prejudice, or unfairness towards Appellant. Indeed, even after 

acknowledging Appellant’s juvenile record—which included a 2018 

adjudication of delinquency for attempted rape and an alleged sexual assault 

of a staff member at the juvenile placement facility—and noting he committed 

the present indecent assault only two months after being released from 

supervision, the trial court somewhat surprisingly sentenced Appellant at the 

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4

In Allied Elec. Supply Co. v. Roberts, 797 A.2d 362 (Pa. Super. 2002), 

we observed there is an 

exception to the waiver doctrine in cases where the “alleged error 

involved the conduct of the Trial Court in overseeing the trial”. . . 

. [See] Commonwealth v. Hammer, 494 A.2d 1054 (Pa. 

1985); Dimonte v. Neumann Medical Ctr., 751 A.2d 205 (Pa. 

Super. 2000). In those cases, the trial judge himself acted 

inappropriately during the proceedings; thus an objection would 

have required counsel to “directly challenge the authority of the 

court by suggesting the judge is deficient in his duties.” DiMonte, 

supra at 209.

Allied Elec. Supply Co., 797 A.2d at 365 n.3. Such an exception is clearly 

irrelevant here, where there is no indication of improper judicial conduct 

during the guilty plea colloquy or the sentencing hearing. 
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lower end of the guideline standard range. Under the circumstances, pointing 

to such a sentence fails to satisfy Appellant’s burden described above.

The third issue raised in the Anders brief asserts that the trial court 

erred in denying Appellant’s post-sentence motion to withdraw his guilty plea. 

It is well settled that a criminal 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) (citation omitted). 

We review the denial of a motion to withdraw a guilty plea for an abuse 

of discretion. Commonwealth v. Gordy, 73 A.3d 620, 624 (Pa. Super. 

2013). “An abuse of discretion is not a mere error in judgment but, rather, 

involves bias, ill will, partiality, prejudice, manifest unreasonableness, and/or 

misapplication of law.” Id. (citation omitted).

A defendant's burden of proof for withdrawing a guilty plea “differs 

depending on whether the defendant seeks to withdraw the plea before or 

after sentencing.” Commonwealth v. Hart, 174 A.3d 660, 664 (Pa. Super. 

2017). While pre-sentence requests to withdraw guilty pleas are liberally 

allowed, “a request to withdraw a guilty plea after sentencing is subject to 

higher scrutiny since courts strive to discourage the entry of guilty pleas as 

sentence-testing devices.” Commonwealth v. Culsoir, 209 A.3d 433, 437 

(Pa. Super. 2019). 
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There is no dispute that Appellant’s counseled request to withdraw his 

plea occurred after sentencing, but there was also an understanding among 

the trial court and both counsel at the outset of the sentencing hearing that 

Appellant had asserted his innocence to the probation office during a postguilty plea, pre-sentencing interview. N.T., 12/20/21, at 6. Because the 

Anders brief addresses this pre-sentence assertion without completely 

developing the issue for appellate review, we shall address it presently as part 

of our independent review of the record. 

Appellant had reported the minor admitted in text messages to him that 

their encounter was consensual and that she made her accusation against him 

only after her parents pressured her to do so. When the trial court 

acknowledged at sentencing that Appellant was thus asserting his innocence, 

Appellant nodded in agreement. N.T. at 6. Therefore, the trial court was 

aware of Appellant’s assertion of innocence and that it relied entirely on the 

minor’s claim of consent.

Consent, however, is not a defense to the indecent assault charge 

against Appellant. Section 3126(a)(8) requires only proof that a defendant 

had indecent contact with the complainant, that the complainant was less than 

16 years old, and that the defendant was four or more years older than the 

complainant and not married to the complainant. 18 Pa.C.S. § 3126(a)(8) 5;

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5 Subsection (a)(8) of Section 3126, Indecent Assault, provides:

(Footnote Continued Next Page)
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Commonwealth v. Castelhun, 889 A.2d 1228, 1233-34 & n.8 (Pa. Super. 

2005) (recognizing consent is not a defense to Section 3126(a)(8); 

Commonwealth v. Bricker, No. 586 WDA 2021, 2022 unpublished 

memorandum, at *4 (Pa. Super. filed Apr. 19, 2022).

6

Therefore, Appellant’s assertion was merely that of a mistaken belief 

that he possessed a legal defense to the charge; it was not an assertion of 

innocence in fact. The facts, as Appellant continually acknowledged without 

exception, were that he secreted the girl to the basement of the high school, 

where he kissed her, put his hand down her pants, and touched her genitalia.7 

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(a) Offense defined.--A person is guilty of indecent assault if 

the person has indecent contact with the complainant, 

causes the complainant to have indecent contact with the 

person or intentionally causes the complainant to come into 

contact with seminal fluid, urine or feces for the purpose of 

arousing sexual desire in the person or the complainant and:

. . .

(8) the complainant is less than 16 years of age and the person is 

four or more years older than the complainant and the 

complainant and the person are not married to each other.

18 Pa.C.S. § 3126(a)(8).

6 See Pa.R.A.P. 126(b) (providing that unpublished non-precedential 

memorandum decisions of the Superior Court filed after May 1, 2019 may be 

cited for their persuasive value).

7 When asked at the plea hearing if he contested those facts, Appellant 

answered, “No.” N.T., 11/08/21, at 4. He then began to repeat the same 

facts when he misunderstood the court’s request to offer his own words on 

what happened with respect to the disorderly conduct plea, stating, “Yes, Your 

(Footnote Continued Next Page)
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Appellant never denied committing these acts. As such, Appellant has put 

forward no support for his claim of innocence.

Controlling jurisprudence on pre-sentence assertions of innocence 

requires an appellant to demonstrate a fair and just reason for withdrawing 

his plea. Commonwealth v. Carrasquillo, 115 A.3d 1284, 1292 (Pa. 2015). 

On what constitutes such a qualifying reason, we observed: 

The Carrasquillo Court, breaking with prior precedent, held that 

a bare assertion of innocence is no longer a fair and just reason 

permitting a pre-sentence withdrawal of a guilty plea. Instead, “a 

defendant's innocence claim must be at least plausible to 

demonstrate, in and of itself, a fair and just reason for 

presentence withdrawal of a plea.” Carrasquillo, 115 A.3d at 

1292. Our High Court outlined that the correct inquiry “on 

consideration of such a withdrawal motion is whether the accused

has made some colorable demonstration, under the 

circumstances, such that permitting withdrawal of the plea would 

promote fairness and justice.” Id. In that decision, our Supreme 

Court ruled that the defendant had not offered a plausible 

innocence claim given that it was rather bizarre—a “devil made 

me to it” claim of innocence—and since the innocence claim was 

offered just prior to sentencing. Id. See also Commonwealth 

v. Hvizda, [116 A.3d 1103 (Pa. 2015)] (companion case 

to Carrasquillo).

Commonwealth v. Baez, 169 A.3d 35, 39 (Pa. Super. 2017)

From this record, we discern no abuse of discretion by the trial court in 

rejecting Appellant's pre-sentence assertion and commencing with sentencing 

on the basis of his plea. Under the terms of Section 3126(a)(8), Appellant’s 

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Honor. I – I kissed her. I kissed her and I had my ha...”, until defense counsel 

stopped him and redirected him to describe the disorderly conduct. N.T. at 4. 

When asked if he entered his plea knowingly, voluntarily, and of his own free 

will, he replied, “yes.” N.T. at 6.
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proffer of consent evidence would not demonstrate his innocence, and his 

statements made during not only the written and oral plea colloquies but also 

the sentencing hearing admitted to the accusations against him. Therefore, 

without a plausible claim of innocence, a fair and just reason for withdrawing 

Appellant’s plea was lacking. See Carrasquillo, 115 A.3d at 1292.

To the extent the Anders brief argues that the trial court erroneously

rejected the identical issue raised in his counseled post-sentence motion, it 

affords Appellant no relief. To prevail on a post-sentence request to withdraw 

a plea, “[a] defendant must demonstrate that manifest injustice would result 

if the court were to deny his post-sentence motion to withdraw a guilty plea. 

Manifest injustice may be established if the plea was not tendered knowingly, 

intelligently, and voluntarily.” Commonwealth v. Kehr, 180 A.3d 754, 756-

57 (Pa. Super. 2018) (internal quotation marks omitted). The determination 

as to whether a guilty plea was involuntary is made by examining the totality 

of the circumstances surrounding the plea, including whether the trial court 

elicited the following information:

(1) Does the Appellant understand the nature of the charges to 

which he or she is pleading guilty or nolo contendere?

(2) Is there a factual basis for the plea?

(3) Does the Appellant understand that he or she has the right to 

trial by jury?

(4) Does the appellant understand that he or she is presumed 

innocent until found guilty?

(5) Is the Appellant aware of the permissible range of sentences 

and/or fines for the offenses charged?
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(6) Is the Appellant aware that the judge is not bound by the 

terms of any plea agreement tendered unless the judge accepts 

such agreement?

See Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa. Super. 

2011); see also Pa.R.Crim.P. 590 (setting forth criteria necessary for a party 

to enter a plea or plea agreement). 

A review of the transcript from the guilty-plea hearing makes clear that 

the trial court followed its mandate, made all relevant inquiries, and Appellant 

responded in the affirmative appropriately. N.T., 11/8/21, at 2-8. Further, 

“[a] person who elects to plead guilty is bound by the statements he makes 

in open court while under oath and he may not later assert grounds for 

withdrawing the plea which contradict the statements he made at his plea 

colloquy.” Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super. 

2003). Moreover, we note that an assertion of innocence is not sufficient to 

demonstrate the manifest injustice required for the post-sentence withdrawal 

of a guilty plea. Commonwealth v. Kpou, 153 A.3d 1020, 1024 (Pa. Super. 

2016).

In the instant case, therefore, the totality of the circumstances supports 

the conclusion that Appellant knowingly, voluntarily, and intelligently entered 

into the guilty plea. Thus, Appellant cannot show he suffered prejudice on the 

order of manifest injustice required for the withdrawal of a plea after he was 

sentenced.
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Finally, we have conducted an independent review of the record in order 

to determine if there are any additional, non-frivolous issues overlooked by 

counsel. Commonwealth v. Yorgey, 188 A.3d1190, at 1198-1199 (Pa. 

Super. 2018) (en banc). Following our review, we conclude that there are no 

additional issues of merit and an appeal in this matter is frivolous.

Petition to withdraw as counsel granted. Judgment of sentence 

affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/23/2022