J-S01023-19

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JUSTIN ALEXANDER MARTINEZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1141 MDA 2018

Appeal from the Judgment of Sentence Entered July 10, 2017

In the Court of Common Pleas of York County Criminal Division at No(s): 

CP-67-CR-0007871-2016

BEFORE: PANELLA, P.J., MURRAY, J., and PELLEGRINI*, J.

MEMORANDUM BY MURRAY, J.: FILED FEBRUARY 05, 2019

Justin Alexander Martinez (Appellant) appeals from the judgment of 

sentence imposed after he pled guilty to persons not to possess a firearm.1 

Additionally, Appellant’s counsel, Christopher D. Moore, Esquire (Counsel), 

seeks to withdraw from representation pursuant to Anders v. California, 386 

U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 

2009). Upon review, we grant Counsel’s petition to withdraw and affirm 

Appellant’s judgment of sentence.

Appellant entered a negotiated guilty plea to persons not to possess a 

firearm on July 10, 2017. That same day, the trial court sentenced Appellant 

to 41⁄2 to 9 years in a state correctional institution. No direct appeal was filed. 

On February 5, 2018, Appellant filed a petition for post-conviction relief, 

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1 18 Pa.C.S.A. § 6105(a)(1).
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seeking to have his post-sentence rights reinstated, which the court granted 

on June 27, 2018. On July 3, 2018, Appellant filed a post-sentence motion to 

withdraw his guilty plea. Following a hearing, the trial court denied Appellant’s 

motion. This timely appeal followed. Both Appellant and the trial court have 

complied with Pennsylvania Rule of Appellate Procedure 1925. On November 

27, 2018, Counsel filed an Anders brief, in which he argues that Appellant’s 

appeal is frivolous and requests permission from this Court to withdraw as 

counsel.2 

At the outset, we note that there are particular mandates that counsel 

seeking to withdraw pursuant to Anders must follow. These mandates and 

the significant protection they provide to an Anders appellant arise because 

a criminal defendant has a constitutional right to a direct appeal and to counsel 

on that appeal. Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 

2007). We have summarized these requirements as follows: 

Direct appeal counsel seeking to withdraw under Anders must file 

a petition averring that, after a conscientious examination of the 

record, counsel finds the appeal to be wholly frivolous. Counsel 

must also file an Anders brief setting forth issues that might 

arguably support the appeal along with any other issues necessary 

for the effective appellate presentation thereof.

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2 Counsel did not file a separate petition to withdraw, but rather set forth his 

withdrawal request in his Anders brief. While this is satisfactory, we note our 

preference that counsel file a separate petition to withdraw. See 

Commonwealth v. Fischetti, 669 A.2d 399, 400 (Pa. Super. 1995) 

(“Although we believe the more desirable practice would be to submit a 

separate withdrawal request to the court, we . . . treat counsel’s [request] in 

the brief as such a request.”); see also Commonwealth v. Green, 513 A.2d 

1008, 1010 (Pa. Super. 1986).
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Anders counsel must also provide a copy of the Anders petition 

and brief to the appellant, advising the appellant of the right to 

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

worthy of this Court’s attention.

If counsel does not fulfill the aforesaid technical requirements of 

Anders, this Court will deny the petition to withdraw and remand 

the case with appropriate instructions (e.g., directing counsel 

either to comply with Anders or file an advocate’s brief on 

Appellant’s behalf).

Id. (citations omitted).

Additionally, there are requirements as to precisely what an Anders 

brief must contain:

[T]he Anders brief that accompanies court-appointed counsel’s 

petition to withdraw ... 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.

Santiago, 978 A.2d 349, 361 (Pa. 2009). When faced with a purported 

Anders brief, we may not review the merits of the underlying issues without 

first deciding whether counsel has properly requested permission to withdraw. 

Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa. Super. 2008) (citation 

omitted). If counsel has satisfied the above requirements, it is then this 

Court’s duty to conduct its own review of the trial court’s proceedings to 

determine whether there are any other non-frivolous issues that the appellant 
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could raise on appeal. Commonwealth v. Dempster, 187 A.3d 266, 272 

(Pa. Super. 2018) (en banc). 

Instantly, we conclude that Counsel has complied with the requirements 

outlined above. Counsel has filed a petition with this Court stating that after 

reviewing the record, he finds this appeal to be wholly frivolous. In 

conformance with Santiago, Counsel’s brief includes summaries of the facts 

and procedural history of the case, and discusses the issues he believes might 

arguably support Appellant’s appeal. See Anders Brief at 7-10. Counsel’s 

brief sets forth his conclusion that the appeal is frivolous and includes citation 

to relevant authority. Id. Finally, Counsel has attached to his petition to 

withdraw the letter that he sent to Appellant, which enclosed Counsel’s 

petition and Anders brief. Counsel’s letter advised Appellant of his right to 

proceed pro se or with private counsel and to raise any additional issues that 

he deems worthy of this Court’s consideration. 

Counsel’s Anders brief raises one issue for our review: “Whether the 

[t]rial [c]ourt abused its discretion in denying Appellant’s [m]otion to 

[w]ithdraw his [g]uilty [p]lea?” Anders Brief at 4 (suggested answer

omitted).

With regard to Appellant’s guilty plea, we begin by setting forth our 

standard of review. 

In Commonwealth v. Broaden, 980 A.3d 124 (Pa. Super. 

2009), we summarized the principles governing post-sentence 

motions to withdraw guilty pleas:
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[P]ost-sentence motions for withdrawal are subject to 

higher scrutiny since courts strive to discourage entry 

of guilty pleas as sentence-testing devices. A 

defendant must demonstrate that manifest injustice 

would result if the court were to deny his postsentence motion to withdraw a guilty plea. Manifest 

injustice may be established if the plea was not 

tendered knowingly, intelligently, and voluntarily. In 

determining whether a plea is valid, the court must 

examine the totality of circumstances surrounding the 

plea. A deficient plea does not per se establish 

prejudice on the order of manifest injustice.

Id. at 129 (Pa. Super. 2009) (citations omitted). “It is well-settled 

that the decision whether to permit a defendant to withdraw a 

guilty plea is within the sound discretion of the trial court.” 

Commonwealth v. Hart, 174 A.3d 660, 664 (Pa. Super. 2017) 

(applying abuse of discretion in post-sentencing context). The 

term discretion

imports the exercise of judgment, wisdom and skill so 

as to reach a dispassionate conclusion, and 

discretionary power can only exist within the 

framework of the law, and is not exercised for the 

purpose of giving effect to the will of the judges. 

Discretion must be exercised on the foundation of 

reason, as opposed to prejudice, personal 

motivations, caprice or arbitrary action. Discretion is 

abused when the course pursued represents not 

merely an error of judgment, but where the judgment 

is manifestly unreasonable or where the law is not 

applied or where the record shows that the action is a 

result of partiality, prejudice, bias or ill will.

Commonwealth v. Shaffer, [ ] 712 A.2d 749, 751 ([Pa.]1998) 

(citation omitted).

Commonwealth v. Kehr, 180 A.3d 754, 756-57 (Pa. Super. 2018). 

Appellant argues that his guilty plea was not knowing, voluntary, and 

intelligent. Specifically, Appellant contends that he did not commit the crime 

to which he pled guilty and that “after his plea agreement he was reviewing 
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discovery that he had not had or not realized he had before or that he had not 

been provided or reviewed,” which “would have changed his decision to enter 

into the plea agreement and taken the matter to trial. . . .” Motion to Withdraw 

Plea, 7/3/18, at ¶ 4-5.

Based on our review of the certified record, including Appellant’s written 

colloquy and the transcript of his guilty plea, we conclude that Appellant’s 

guilty plea was knowing, voluntary, and intelligent. The record reflects that 

the trial court informed Appellant of the nature of the charges to which he 

pled guilty, the factual basis for the plea, his right to trial by jury, the 

presumption of innocence, the sentences, and that the court was accepting 

the negotiated sentence. N.T., 7/10/17, at 2-8; Guilty Plea Colloquy, 7/10/17, 

at 3-11.

Importantly, during the oral colloquy, Appellant indicated that he was 

not forced into pleading guilty, and that he was satisfied with counsel’s 

representation. N.T., 7/10/17, at 5, 7. Appellant acknowledged that he 

decided to exchange his rights, including the right to defend the charges 

brought against him, for a favorable sentence of 41⁄2 to 9 years of 

incarceration, where, if convicted following a jury trial, Appellant would have 

faced up to 12 years of incarceration. Id. at 4-5. Appellant stated that he 

understood the ramifications of pleading guilty and that he was entering his 

plea on his own volition. Id. at 5-6.
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By asserting his innocence to the charges he pled guilty to, Appellant 

implies that his responses to the plea colloquies were untruthful. A defendant 

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. Turetsky, 925 A.2d 876, 881 (Pa. Super. 2007) 

(quotations and citations omitted). “A criminal defendant who elects to plead 

guilty has a duty to answer questions truthfully.” Id. Because “[a] defendant 

is bound by the statements which he makes during his plea colloquy[,]” 

Commonwealth v. Orlando, 156 A.3d 1274, 1281 (Pa. Super. 2017), 

Appellant cannot now propose that his guilty plea was not entered into 

voluntarily, knowingly, or intelligently. For these reasons, we conclude that 

the trial court did not err in denying Appellant’s motion to withdraw his guilty 

plea.

Finally, our independent review of the proceedings reveals no other nonfrivolous issues that Appellant could raise on appeal. See Dempster, 187 

A.3d at 272. Thus, we grant Counsel’s petition to withdraw and affirm 

Appellant’s judgment of sentence.

Petition to withdraw granted. Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 02/05/2019