J-S69034-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MARK ADAM HENDERSON,

Appellant No. 507 MDA 2016

Appeal from the Judgment of Sentence February 19, 2016

in the Court of Common Pleas of Huntingdon County

Criminal Division at Nos.: CP-31-CR-0000405-2015

CP-31-CR-0000407-2015

CP-31-CR-0000511-2015

CP-31-CR-0000535-2015

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MARK ADAM HENDERSON,

Appellant No. 508 MDA 2016

Appeal from the Judgment of Sentence February 19, 2016

in the Court of Common Pleas of Huntingdon County

Criminal Division at Nos.: CP-31-CR-0000405-2015

CP-31-CR-0000407-2015

CP-31-CR-0000511-2015

CP-31-CR-0000535-2015

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.
J-S69034-16

- 2 -

MARK ADAM HENDERSON,

Appellant No. 509 MDA 2016

Appeal from the Judgment of Sentence February 19, 2016

in the Court of Common Pleas of Huntingdon County

Criminal Division at Nos.: CP-31-CR-0000405-2015

CP-31-CR-0000407-2015

CP-31-CR-0000511-2015

CP-31-CR-0000535-2015

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MARK ADAM HENDERSON,

Appellant No. 510 MDA 2016

Appeal from the Judgment of Sentence February 19, 2016

in the Court of Common Pleas of Huntingdon County

Criminal Division at Nos.: CP-31-CR-0000405-2015

CP-31-CR-0000407-2015

CP-31-CR-0000511-2015

CP-31-CR-0000535-2015

BEFORE: STABILE, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED OCTOBER 21, 2016

In these consolidated appeals, Appellant, Mark Adam Henderson, 

appeals pro se from the judgment of sentence imposed following his entry of 

a counseled, negotiated nolo contendere plea, inter alia, to eight charges 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
J-S69034-16

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involving driving under the influence with a suspended license. Counsel has 

filed a petition to withdraw from representation on the basis of frivolity, and 

a supporting brief pursuant to Anders v. California and Commonwealth 

v. Santiago.

1

 Appellant filed both a reply to the petition to withdraw and a 

separate pro se brief. Appellant has also filed four pro se motions (and one 

pro se petition). We deny all of Appellant’s pro se motions. We grant 

counsel’s petition to withdraw, and we affirm Appellant’s judgment of 

sentence. 

On February 19, 2016, Appellant entered counseled, negotiated nolo 

pleas to four separate criminal informations (four counts of driving under the 

influence, controlled substance, impaired ability, fourth and subsequent 

offense; and four counts of driving while license suspended).2 As part of 

the agreement, other pending charges were nolle prossed.

3 Appellant 

completed and signed a written Nolo Contendere Colloquy, co-signed by plea 

____________________________________________

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

Santiago, 978 A.2d 349 (Pa. 2009).

2 Appellant does not appeal from two sentences of probation for forgery of 

prescriptions which were also part of the global agreement. 

3 The other charges included violation of 75 Pa.C.S.A. § 1501 (drivers 

required to be licensed); § 6503.1 (habitual offenders), and other acts 

involving impaired driving. Appellant was apparently also charged with theft 

of a cellphone, trespass and attempting to elude police by hiding in a crawl 

space and crawling into the attic of an adjoining property when the officers 

came to serve an arrest warrant on him. 
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counsel. After a thorough on-the-record colloquy, the court accepted 

Appellant’s plea. (See N.T. Plea and Sentencing, 2/19/16, at 2-8). 

On the same day, the court imposed the negotiated aggregate 

sentence of not less than eighty-four months’ and not more than one 

hundred-sixty-eight months’ incarceration in a state correctional institution. 

(See id. at 8-10).4 The sentencing court also found Appellant to be RRRI 

eligible for a minimum sentence of seventy months’ incarceration. (See 

id.). 

On March 9, 2016, Appellant filed a pro se motion to modify or reduce 

sentence. Even though the post-sentence motion was untimely on its face, 

the court scheduled a hearing.5 (See Order, 4/01/16). However, before the 

hearing could be held, Appellant filed a pro se notice of appeal, on March 18, 

2016, albeit erroneously addressed to the Pennsylvania Supreme Court.6 

____________________________________________

4 As part of the global plea, the court also sentenced Appellant to two terms 

of probation (five years each) for the two counts of forgery (prescriptions) 

previously noted. The terms of probation were consecutive to each other 

and to the term of incarceration. (See N.T. Plea and Sentencing, at 10). 

The sentencing court made all other sentences concurrent to the aggregate 

sentence of incarceration (seven to fourteen years). (See id. at 9-10). 

5 A defendant must file a post-sentence motion within ten days of imposition 

of sentence. Pa.R.Crim.P. 720(A)(1); see also Commonwealth v. 

Capaldi, 112 A.3d 1242, 1244 (Pa. Super. 2015); Commonwealth v. 

Dreves, 839 A.2d 1122, 1128 (Pa. Super. 2003).

6

 This Court consolidated the appeals at Nos. 507, 508, 509, and 510, sua 

sponte, per curiam. (See Order, 4/20/16). 
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Counsel filed a court-ordered statement of errors on April 26, 2016. See

Pa.R.A.P. 1925(b). On June 23, 2016, counsel also filed a petition to 

withdraw (captioned as a motion) and, in support, an Anders brief. In the 

brief, after reviewing Appellant’s claims of ineffective assistance and an 

excessive sentence, counsel concluded that the appeal was frivolous, and 

that nothing in the record supports the appeal. (See Anders Brief, 6/23/16, 

at 20). 

Counsel’s third obligation under Anders [after filing a petition to 

withdraw and an Anders brief] is to furnish a copy of the brief to 

the appellant, advising him 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. This last option (i.e., to raise additional 

points) means that the appellant, although still 

represented by Anders counsel, may file a brief with this 

Court. 

Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007), appeal 

denied, 936 A.2d 40 (Pa. 2007) (emphasis added) (citation omitted); see 

also Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).

Here, counsel sent Appellant a letter advising him, inter alia, that he 

had the right to proceed pro se on the appeal, and the right to raise any 

points he deemed worthy of this Court’s consideration. (See Letter of 

Counsel to Mark A. Henderson, 6/23/16).7 

____________________________________________

7

It is apparent that at the time of the appeals, Appellant was still 

represented by counsel. Accordingly, Appellant’s pro se notice of appeal 

(Footnote Continued Next Page)
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Appellant proceeded to file with this Court a petition to proceed pro se, 

on July 1, 2016; a pro se motion to withdraw the no-contest plea, on August 

2, 2016; and a motion to vacate sentence, on August 5, 2016. On August 

22, 2016, Appellant also filed a pro se motion for habeas corpus relief. The 

motions and the petition were deferred, per curiam, to this merit panel for 

disposition. (See Order, 8/04/16). 

The trial court filed a 1925(a) Memorandum on May 16, 2016. See 

Pa.R.A.P. 1925(a). Appellant filed a pro se brief, on July 12, 2016. On July 

27, 2016, he filed a reply brief in response to counsel’s petition to withdraw 

and Anders brief. 

Before addressing the merits of Appellant’s claims, we must first 

review counsel’s petition to withdraw. See Commonwealth v. Goodwin, 

928 A.2d 287, 290 (Pa. Super. 2007) (en banc). Prior to withdrawing as 

counsel on a direct appeal under Anders, counsel must file a brief that 

meets the requirements established by our Supreme Court in Santiago, 

supra. 

The brief must: (1) provide a summary of the procedural history and 

facts, with citations to the record; (2) refer to anything in the record that 

(Footnote Continued) _______________________

appears to be an example of hybrid representation. However, in view of 

counsel’s subsequent filing of a Rule 1925(b) statement of errors on behalf 

of Appellant, the trial court’s acceptance of it, and this Court’s sua sponte

consolidation of Appellants appeals, as well as counsel’s proper advice that 

Appellant could appeal pro se, we give Appellant the benefit of the doubt and 

proceed to review his subsequent appeal. 
J-S69034-16

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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, or statutes on point that have 

led to the conclusion that the appeal is frivolous. See Santiago, supra at 

361. 

Counsel must also provide Appellant with a copy of the Anders brief, 

together with a letter that advises the appellant of his or her right to 

proceed pro se, as already noted. 

Substantial compliance with these requirements is sufficient. See

Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007). 

“After establishing that the antecedent requirements have been met, this 

Court must then make an independent evaluation of the record to determine 

whether the appeal is, in fact, wholly frivolous.” Commonwealth v. Palm, 

903 A.2d 1244, 1246 (Pa. Super. 2006) (citation omitted). 

Here, counsel filed a petition to withdraw from further representation, 

along with the Anders brief that concluded Appellant’s appeal is frivolous. 

The petition further explains that counsel notified Appellant of the 

withdrawal request and sent Appellant a letter explaining his right to proceed 

pro se or with new, privately-retained counsel to raise any additional points 

or arguments that Appellant believed had merit. In the Anders brief, 

counsel provides a summary of the facts and procedural history of the case 
J-S69034-16

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with citations to the record, refers to evidence of record that might arguably 

support the issue raised on appeal, provides citations to relevant case law, 

and states his conclusion that the appeal is wholly frivolous and the reasons 

for the conclusion. Accordingly, we conclude that counsel has substantially 

complied with the requirements of Anders and Santiago.

Because counsel’s petition and brief satisfy the requirements of 

Anders and Santiago, we will undertake our own review of the appeal to 

determine if it is wholly frivolous. See Palm, supra at 1246; see also 

Commonwealth v. O'Malley, 957 A.2d 1265, 1266-67 (Pa. Super. 2008). 

The Anders brief raises two questions for our review:8

1. Whether [Appellant] can raise claims of ineffective 

assistance of counsel in a direct appeal to this Court?

2. Whether [Appellant] can challenge the discretionary 

aspect of his sentence where, as here, the plea agreement 

included a negotiated sentence which the [t]rial [c]ourt [ ] 

accepted and imposed?

(Anders Brief, at 8).

Preliminarily, we note that:

It is well established that a plea of nolo contendere is treated as 

a guilty plea in terms of its effect upon a given case.

Commonwealth v. Leidig, 850 A.2d 743, 745 (Pa. Super. 

2004) (“in terms of its effect upon a case, a plea of nolo 

contendere is treated the same as a guilty plea”). We are aware 

that by entering a nolo contendere plea, a defendant does not 

admit that he is guilty. Commonwealth v. Lewis, 791 A.2d 

____________________________________________

8 The Commonwealth did not file a brief in this appeal. 
J-S69034-16

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1227 (Pa. Super. 2002); see also Commonwealth v. Moser,

999 A.2d 602 (Pa. Super. 2010). “As the United States Supreme 

Court has held, a plea of nolo contendere is ‘a plea by which a 

defendant does not expressly admit his guilt, but nonetheless 

waives his right to a trial and authorizes the court for purposes 

of sentencing to treat him as if he were guilty.’ North 

Carolina v. Alford, 400 U.S. 25, 36, 91 S. Ct. 160, 167, 27 

L.Ed.2d 162, 170 (1970).” Lewis, supra at 1234 (emphasis 

added). “[T]he difference between a plea of nolo contendere

and a plea of guilty is that, while the latter is a confession 

binding defendant in other proceedings, the former has no effect 

beyond the particular case.” Moser, supra at 606 (quoting 

Commonwealth ex rel. Monaghan v. Burke, 167 Pa. Super. 

417, 74 A.2d 802, 804 (1950)). Thus, for purposes of 

proceedings relating to the charges, Appellant agreed to be 

treated as guilty of the crimes. 

Commonwealth v. V.G., 9 A.3d 222, 226–27 (Pa. Super. 2010).

Next, we observe that, as correctly noted by counsel, the trial court 

properly decided that Appellant’s claims of ineffective assistance of counsel 

may only be raised on collateral appeal. (See Anders Brief, at 18; Trial Ct. 

Op., at 1); see also Commonwealth v. Grant, 813 A.2d 726, 739 (Pa. 

2002) (holding that, with exceptions not applicable to this appeal, general 

rule is that petitioner should wait to raise claims of ineffective assistance of 

trial counsel until collateral review); Commonwealth v. Holmes, 79 A.3d 

562, 563 (Pa. 2013) (reaffirming general rule of Grant deferring claims of 

ineffective assistance of counsel to PCRA review). 

Counsel also concluded correctly that the trial court properly decided 

that when a plea agreement includes a negotiated sentence accepted and 

imposed by the sentencing court, there is no authority to challenge the 

discretionary aspects of that sentence. (See Anders Brief, at 19; Trial Ct. 
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Op., at 2); see also Commonwealth v. Dalberto, 648 A.2d 16 (Pa. Super. 

1994), appeal denied, 655 A.2d 983 (Pa. 1995), cert. denied, 516 U.S. 818 

(1995):

[I]n a negotiated plea agreement, where a sentence of specific 

duration has been made part of a plea bargain, it would clearly 

make a sham of the negotiated plea process for courts to allow 

defendants to later challenge their sentence; this would, in 

effect, give defendants a second bite at the sentencing process. 

Id. at 21 (citation and internal quotation marks omitted) (emphasis added). 

Accord, O'Malley, supra at 1267 (holding one who pleads guilty and 

receives negotiated sentence may not then seek discretionary review of that 

sentence) (citing Dalberto, at 20). 

Therefore, we agree with counsel and the trial court that the questions 

raised in the Anders brief are wholly frivolous. Next, we make an 

independent evaluation of the record to determine whether the appeal is, in 

fact, wholly frivolous. See Palm, supra at 1246; see also O’Malley, 

supra at 1267. In that context, we review the additional claims raised by 

Appellant himself. 

In his pro se brief, Appellant raises the following questions:

1. Was a plea of nolo contendere unlawfully induced where 

the Appellant is innocent of the charges? Did [c]ounsel’s 

ineffectiveness prevent the plea from being voluntary, knowing, 

or intelligent?

2. Did [c]ounsel fail to advocate for the Appellant in the 

plea [bargaining] process and at a [minimum] should have 

presented evidence of mitigation resulting in a more favorable 

outcome of the plea [bargaining] process with lesser charges 

and a lesser prison sentence?
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3. Is there a factual basis for the charges according to the 

plain language of the [statute] and is the Appellant innocent of 

the charges in which he was unlawfully induced to plea [sic] nolo 

contendere?

4. Did the court and prosecution err in violating Appellant’s 

eighth amendment rights protecting him from excessive bail and 

cruel and unusual punishment?

5. Was the Appellant prejudiced by breech agreements 

where there was no reasonable basis no [sic] to honor those 

agreements?

6. Does Appellant’s sentence violate the priniciple [sic] of 

proportionality, that the punishment should not exceed the 

gravity of the offense and did the court err in failing to rule on 

Appellant’s timely motion to modify sentence? 

7. Does sufficent [sic] evidence exist of arguable merit to 

support suppression of evidence which counsel failed to advise 

the Appellant of?

8. Should the charges be quashed and dismissed or in lieu 

of a complete or partial dismissal, Appellants [sic] plea of nolo 

contendere should be withdrawn, the Appellant’s sentence 

should be vacated, and be set at liberty on bail?

([Pro Se] Brief for Appellant, at 6). 

As a prefatory matter, although this Court is willing to 

construe liberally materials filed by a pro se litigant, pro se

status generally confers no special benefit upon an appellant. 

Accordingly, a pro se litigant must comply with the procedural 

rules set forth in the Pennsylvania Rules of the Court. This Court 

may quash or dismiss an appeal if an appellant fails to conform 

with the requirements set forth in the Pennsylvania Rules of 

Appellate Procedure. 

Commonwealth v. Lyons, 833 A.2d 245, 251–52 (Pa. Super. 2003), 

appeal denied, 879 A.2d 782 (Pa. 2005) (citations omitted). 
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First, Appellant fails to demonstrate where in the record his claims in 

his motions, petition or pro se brief were raised with the trial court (other 

than the challenge to the negotiated sentence, which he abandoned by filing 

his purported pro se notice of appeal before the scheduled hearing). “Issues 

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

time on appeal.” Pa.R.A.P. 302(a). Accordingly, they are waived. 

Moreover, we remain mindful that: 

The law does not require that a defendant be pleased with 

the outcome of his decision to enter a plea of guilty. All that is 

required is that the defendant’s decision to plead guilty be 

knowingly, voluntarily and intelligently made. 

Pennsylvania has constructed its guilty plea procedures in 

a way designed to guarantee assurance that guilty pleas 

are voluntarily and understandingly tendered. The entry of 

a guilty plea is a protracted and comprehensive proceeding 

wherein the court is obliged to make a specific 

determination after extensive colloquy on the record that a 

plea is voluntarily and understandingly tendered. A guilty 

plea colloquy must include inquiry as to whether (1) the 

defendant understood 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 he is found guilty; (5) the 

defendant is aware as to the permissible range of 

sentences; and (6) the defendant is aware that the judge 

is not bound by the terms of any plea agreement unless he 

accepts such agreement. Inquiry into these six areas is 

mandatory in every guilty plea colloquy. 

In order for a guilty plea to be constitutionally valid, the guilty 

plea colloquy must affirmatively show that the defendant 

understood what the plea connoted and its consequences. This 

determination is to be made by examining the totality of the 

circumstances surrounding the entry of the plea. Therefore, 

[w]here the record clearly demonstrates that a guilty plea 
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colloquy was conducted, during which it became evident that the 

defendant understood the nature of the charges against him, the 

voluntariness of the plea is established. 

Commonwealth v. Myers, 642 A.2d 1103, 1105 (Pa. Super. 1994) 

(citations and internal quotation marks omitted).

Here, our independent review of the record reveals that, prior to 

accepting Appellant’s nolo plea, the trial court engaged Appellant in an 

extensive colloquy in which he consistently affirmed that he understood all of 

the rights he would be giving up by pleading nolo contendere. (See N.T. 

Plea and Sentencing, at 2-8). 

Nevertheless, on appeal, in addition to alleging repeatedly the 

purported ineffectiveness of plea counsel, Appellant asserts that his nolo 

plea was “unlawfully induced” and he is innocent.9 (Pro Se Brief, at 13). 

However, he fails to develop an argument or provide pertinent facts or 

controlling legal authority in support of these essentially boilerplate claims. 

Instead, in a meandering, unfocussed and non-compliant brief, 

Appellant employs the simple expedient of categorically denying, whenever 

conceivable to him, the factual basis of the plea presented in the affidavits of 

probable cause and at the hearing. (See Pro Se Brief, at 13-46). As an 

alternative, he attempts to re-characterize the facts of record into a self-

____________________________________________

9 We note that under current controlling authority, a bare assertion of 

innocence is not, in and of itself, a sufficient reason to require a court to 

grant a request to withdraw a guilty plea. See Commonwealth v. 

Carrasquillo, 115 A.3d 1284, 1292 (Pa. 2015). 
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serving narrative that he appears to believe is exculpatory. His reliance is 

misplaced. 

Appellant’s challenge to the nolo contendere plea was made after 

sentencing, and the standard for withdrawing a plea is manifest 

injustice. A plea rises to the level of manifest injustice when it 

was entered into involuntarily, unknowingly, or unintelligently. 

Therefore, Appellant’s claims will be reviewed under the manifest 

injustice standard.

Commonwealth v. Stork, 737 A.2d 789, 790 (Pa. Super. 1999), appeal 

denied, 764 A.2d 1068 (Pa. 2000) (citations omitted).

Once a defendant has entered a plea of guilty, it is 

presumed that he was aware of what he was doing, and the 

burden of proving involuntariness is upon him. Therefore, where 

the record clearly demonstrates that a guilty plea colloquy was 

conducted, during which it became evident that the defendant 

understood the nature of the charges against him, the 

voluntariness of the plea is established. A defendant is bound 

by the statements he makes during his plea colloquy, and 

may not assert grounds for withdrawing the plea that 

contradict statements made when he pled.

Id. at 790–91 (1999) (citations, quotation marks and other punctuation 

omitted) (emphasis added).

For all these reasons, there is no merit to the issues Appellant raises 

pro se. He has not met his burden of proving that his nolo plea was 

involuntarily entered. He has failed to demonstrate the manifest injustice 

necessary to permit him to withdraw the plea after sentence was imposed. 

The written and oral plea colloquies in this case affirmatively establish 

that Appellant, a habitual offender with a long record of similar violations, 

knowingly, intelligently and voluntarily agreed to plead nolo, after 
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negotiating a favorable plea bargain with a fixed sentence, with RRRI 

eligibility, and the nolle prossing of numerous related charges. The totality 

of the circumstances contained in the record confirms that he had a full 

understanding of the consequences of his decision and of the rights he would 

be giving up by pleading. 

Appellant will not now be permitted to withdraw his plea by making a 

bald assertion that he was innocent of the charges to which he pleaded nolo 

contendere. See Carrasquillo, supra at 1292. An Appellant’s postsentence denial of guilt, particularly when the nolo plea does not include an 

admission of guilt in the first place, does not rise to the level of prejudice on 

the order of manifest injustice sufficient to require that he be permitted to 

withdraw his plea. See Myers, supra, at 1108 (citing Commonwealth v. 

Jackson, 479 A.2d 5, 6 (Pa. Super. 1984)).

Appellant’s claims of ineffective assistance of counsel are denied 

without prejudice to Appellant’s proper presentation of them in a timely filed, 

procedurally compliant PCRA petition. 

We conclude that all of Appellant’s remaining pro se claims lack any 

support in fact or law. Similarly, Appellant’s pro se motion for habeas 

corpus relief, relying on Birchfield v. N.D., 136 S. Ct. 2160 (2016), is 

distinguishable on the facts and the law as well as its procedural posture. 

Accordingly, they are all wholly frivolous. On independent review, we find 

no non-frivolous claims.
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Judgment of sentence affirmed. Petition to withdraw granted. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/21/2016