J-S40041-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

JOHN WILLIAM POLAND, :

:

Appellant : No. 3680 EDA 2015

Appeal from the Judgment of Sentence December 3, 2015

in the Court of Common Pleas of Wayne County,

Criminal Division, No(s): CP-64-CR-0000157-2015

BEFORE: BOWES, MUNDY and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 23, 2016

John William Poland (“Poland”) appeals from the judgment of sentence 

imposed following his conviction of retail theft. See 18 Pa.C.S.A. 

§ 3929(a)(1). Additionally, Ashley G. Zimmerman, Esquire (“Attorney 

Zimmerman”), Poland’s counsel, has filed a Petition to Withdraw as counsel 

and an accompanying brief pursuant to Anders v. California, 386 U.S. 738, 

744 (1967). We affirm and grant Attorney Zimmerman’s Petition to 

Withdraw.

On April 7, 2015, Poland purchased numerous items from a Wal-Mart 

store in the amount of $282.93. Subsequently, Poland returned to Wal-Mart 

and took the same items off the shelf, and left the store without paying. 

The police stopped Poland’s vehicle in a traffic stop, wherein they discovered 

the stolen items. Poland admitted to stealing the items and was charged 

with retail theft.
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Poland waived his right to a preliminary hearing. Thereafter, Poland 

was ordered to appear on September 18, 2015, for the purposes of 

reviewing a guilty plea colloquy, but he failed to appear. A bench warrant 

was issued for Poland, which was subsequently rescinded when he was 

extradited from New Jersey to Wayne County. On October 8, 2015, Poland 

pled guilty to retail theft. The trial court sentenced Poland to not less than 9 

months nor more than 60 months in a State Correctional Institution (“SCI”). 

The trial court also noted that Poland was Recidivism Risk Reduction 

Incentive (“RRRI”) eligible, and his RRRI minimum was 6 months, 23 days. 

The trial court additionally ordered Poland to pay a fine of $300, restitution 

in the amount of $282.93, and submit to the drawing of DNA.

Poland filed a timely Motion to Reconsider Sentence, which the trial 

court denied. Poland filed a timely Notice of Appeal. Attorney Zimmerman 

filed a Statement of Intent to File an Anders/McClendon1 Brief seeking to 

withdraw as counsel in lieu of filing a concise statement of matters 

complained of on appeal.

In the Anders Brief, the following questions are presented for our 

review:

I. Did the trial court accept a valid guilty plea from [Poland] in 

the underlying matter?

II. Did the sentencing court commit any errors that would entitle 

[Poland] to any relief?

 

1 Commonwealth v. McClendon, 424 A.2d 1185 (Pa. 1981).
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Anders Brief at 7. Poland did not file a separate pro se brief, nor did he 

retain alternate counsel for this appeal.

We must first determine whether Attorney Zimmerman has complied 

with the dictates of Anders in petitioning to withdraw from representation. 

See Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) 

(stating that “[w]hen faced with a purported Anders brief, this Court may 

not review the merits of any possible underlying issues without first 

examining counsel’s request to withdraw.”) (citation omitted). Pursuant to 

Anders, when an attorney believes that an appeal is frivolous and wishes to 

withdraw as counsel, he or she must

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

making a conscientious examination of the record[,] counsel has 

determined the appeal would be frivolous; (2) file a brief 

referring to any issues that might arguably support the appeal, 

but which does not resemble a no-merit letter; and (3) furnish a 

copy of the brief to the defendant and advise him of his right to 

retain new counsel, proceed pro se, or raise any additional points 

he deems worthy of this Court’s attention.

Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012) 

(citation omitted).

Additionally, the Pennsylvania Supreme Court has determined that a 

proper Anders 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 

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 
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case law, and/or statutes on point that have led to the 

conclusion that the appeal is frivolous.

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

Here, Attorney Zimmerman complied with each of the requirements 

set forth in Anders by petitioning this Court for leave to withdraw, 

submitting an Anders Brief referring to any issue that may have arguable 

merit, and notifying Poland of the request to withdraw and advising him as 

to his rights moving forward. Further, the Anders Brief meets the 

standards set forth in Santiago by providing a factual summary of Poland’s 

case, with support for Attorney Zimmerman’s conclusion that the trial court 

accepted a valid guilty plea and sentenced Poland without error, rendering 

Poland’s appeal wholly frivolous. Because Attorney Zimmerman has 

complied with the procedural requirements for withdrawing from 

representation, we will independently review the record to determine 

whether Poland’s appeal is, in fact, wholly frivolous.

In his first claim, Poland challenges the validity of the guilty plea. 

Anders Brief at 11-12.

Our law is clear that to be valid, a guilty plea must be 

knowingly, voluntarily and intelligently entered. There is no 

absolute right to withdraw a guilty plea, and the decision as to 

whether to allow a defendant to do so is a matter within the 

sound discretion of the trial court. To withdraw a plea after 

sentencing, a defendant must make a showing of prejudice 

amounting to “manifest injustice.” A plea rises to the level of 

manifest injustice when it was entered into involuntarily, 

unknowingly, or unintelligently. A defendant’s disappointment in 

the sentence imposed does not constitute “manifest injustice.”
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Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa. Super. 2008) 

(citation omitted).

“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. Failure to employ either 

measure results in waiver.” Commonwealth v. Lincoln, 72 A.3d 606, 609-

10 (Pa. Super. 2013) (citations omitted); see also Pa.R.Crim.P. 1007 

(stating that any objections related to the validity of a plea agreement must 

be raised in a post-sentence motion). 

Here, while Poland filed a timely Motion to Reconsider Sentence, he 

failed to raise any issue regarding the guilty plea. Thus, the claim is waived. 

See Lincoln, 72 A.3d at 611.2

In his second claim, Poland contends that the trial court abused its 

discretion in imposing an excessive sentence. Anders Brief at 12-14. 

Poland challenges the discretionary aspects of his sentence. 

 

2 We note that while Poland completed a written guilty plea colloquy, the 

record does not contain a transcript of an oral guilty plea colloquy. See 

Commonwealth v. Moser, 921 A.2d 526, 529 (Pa. Super. 2007) (stating 

that “[n]othing precludes the use of a written colloquy that is read, 

completed, and signed by the defendant, made part of the record, and 

supplemented by some on-the-record oral examination.”) (citation 

omitted, emphasis added); see also Pa.R.Crim.P. 590, cmt; 

Commonwealth v. Mallory, 941 A.2d 686, 698 (Pa. 2008). This Court 

contacted the trial court to request any transcripts or other documents that 

might be missing from the record in search of any further on-the-record 

content regarding the guilty plea. This Court was notified that there were no 

other documents beyond the received record. Nevertheless, as noted above, 

Poland failed to preserve his claim; accordingly, it is waived.
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Prior to reaching the merits of a discretionary sentencing 

issue, an appellate court conducts 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, see Pa.R.A.P. 2119(f); and 

(4) whether there is substantial question that the sentence 

appealed from is not appropriate under the Sentencing Code, 42 

Pa.C.S.A. § 9781(b). 

Commonwealth v. Phillips, 946 A.2d 103, 112 (Pa. Super. 2008) (citation 

omitted). 

Here, Poland filed a timely Notice of Appeal and raised his sentencing 

claim in the Motion to Reconsider Sentence. Poland failed to include a Rule 

2119(f) statement in his appellate brief. However, the Commonwealth did 

not object to this defect. See Commonwealth v. Shugars, 895 A.2d 

1270, 1274 (Pa. Super. 2006) (stating that “[i]n the absence of any 

objection from the Commonwealth, we are empowered to review claims that 

otherwise fail to comply with Rule 2119(f)”). Even so, Poland’s bald claims 

do not raise a substantial question. See Commonwealth v. Titus, 816 

A.2d 251, 255 (Pa. Super. 2003) (stating that a bald claim of excessiveness, 

which does not raise a violation of the Sentencing Code or a norm underlying 

the sentencing process does not raise a substantial question). 

Nevertheless, Anders requires that we examine the merits of Poland’s 

claims to determine whether his appeal is, in fact, “wholly frivolous” in order 

to rule upon counsel’s request to withdraw. See Commonwealth v. 

Wilson, 578 A.2d 523, 525 (Pa. Super. 1990) (stating that discretionary 
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aspects of sentencing claims raised in an Anders brief must be addressed 

on appeal, despite procedural violations); accord Commonwealth v. 

Ziegler, 112 A.3d 656, 661 (Pa. Super. 2015).

Our standard of review for challenges to the discretionary aspects of 

sentencing is well settled:

[s]entencing is vested in the discretion of the trial court, and will 

not be disturbed absent a manifest abuse of that discretion. An 

abuse of discretion involves a sentence which was manifestly 

unreasonable, or which resulted from partiality, prejudice, bias, 

or ill will. It is more than just an error in judgment. 

Commonwealth v. Malovich, 903 A.2d 1247, 1252-53 (Pa. Super. 2006) 

(citations omitted). 

At Poland’s sentencing hearing, the trial court stated that it had 

reviewed and considered the pre-sentence investigation report. See N.T., 

12/3/15, at 3-4, 5, 8; see also Commonwealth v. Downing, 990 A.2d 

788, 794 (Pa. Super. 2010) (stating that “where the trial court is informed 

by a pre-sentence report, it is presumed that the court is aware of all 

appropriate sentencing factors and considerations, and that where the court 

has been so informed, its discretion should not be disturbed”) (quotation 

marks and citations omitted). Additionally, the trial court considered the 

Sentencing Guidelines, and the statements by Poland’s counsel. N.T., 

12/3/15, at 5-8. The trial court also considered Poland’s education, 

character, numerous retail theft convictions, and remorse. Id. at 4, 6, 7. 
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Based on our review, we conclude that the trial court did not abuse its 

discretion in imposing Poland’s sentence. See Malovich, 903 A.2d at 1254.

Further, our independent examination of the record reveals no other 

claims of arguable merit. See Anders, 386 U.S. at 744-45. Accordingly, 

we conclude that Poland’s appeal is wholly frivolous, and Attorney 

Zimmerman is thus entitled to withdraw as counsel.

Petition to Withdraw as Counsel granted; judgment of sentence 

affirmed.

Judge Mundy did not participate in the consideration or decision of this 

case.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/23/2016