J. S76002/14 

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

v. :

:

ERIC McMULLEN, : No. 1025 WDA 2013 

:

 Appellant :

Appeal from the Judgment of Sentence, May 22, 2013,

in the Court of Common Pleas of Allegheny County 

Criminal Division at Nos. CP-02-CR-0002118-2008, 

CP-02-CR-0017000-2006, CP-02-CR-0018191-2006 

BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OLSON, JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 16, 2015 

 Eric McMullen appeals from the judgment of sentence of May 22, 2013. 

We affirm. 

 In a prior memorandum, we described the history of this matter as 

follows: 

 On March 2, 2010, appellant entered a 

negotiated guilty plea to numerous counts at three 

different informations, including robbery, aggravated 

assault, criminal conspiracy, prohibited offensive 

weapons, and firearms violations. A charge of 

criminal attempt to commit homicide was withdrawn 

in accordance with the plea agreement. Following a

thorough plea colloquy, the trial court imposed the

agreed upon sentence of 10 to 20 years’ 

imprisonment.[Footnote 1] 

[Footnote 1] We note that appellant 

faced a mandatory minimum of 10 years’ 

imprisonment as a second-strike 
J. S76002/14 

- 2 - 

recidivist violent offender pursuant to 

42 Pa.C.S.A. § 9714(a)(1). (Notes of 

testimony, 3/2/10 at 33-34, 41-42.) 

 During the plea, appellant stated that he was 

taking various prescription psychiatric medications. 

(Notes of testimony, 3/2/10 at 15.) However, 

appellant assured the court that he was lucid and 

understood the consequences of pleading guilty. 

(Id.) Appellant testified that his medication did not 

affect his ability to understand the proceedings and 

think clearly. (Id. at 24.) 

 On March 8, 2010, appellant filed a timely 

post-sentence motion to withdraw his guilty plea, 

asserting that he was unable to understand the 

proceedings due to his mental health condition. That 

same date, March 8, 2010, appellant’s post-sentence

motion was denied and court-appointed counsel was 

granted permission to withdraw.[Footnote 2] 

Subsequently, appellant filed a pro se motion to 

withdraw guilty plea on March 22, 2010. According 

to the criminal docket, this motion was denied on 

March 31, 2010.[Footnote 3] 

[Footnote 2] Komron Jon Maknoon, Esq., 

was appointed to represent appellant on 

December 14, 2009, following the 

withdrawal of Arnold I. Klein, Esq. 

Attorney Maknoon entered his 

appearance on December 23, 2009. 

[Footnote 3] The docket indicates that 

the March 31, 2010 order cannot be 

located as of February 1, 2012. 

 No direct appeal was filed; however, on 

May 21, 2010, appellant filed a pro se

PCRA[Footnote 4] petition. Counsel was appointed, 

and filed an amended petition on appellant’s behalf

on January 25, 2011, alleging, inter alia, that 

Attorney Maknoon was ineffective for failing to 

protect appellant’s direct appeal rights. By order

filed March 2, 2011, appellant’s direct appeal rights 
J. S76002/14 

- 3 - 

were reinstated nunc pro tunc, and appellant filed 

notice of appeal the same day. 

[Footnote 4] Post-Conviction Relief Act, 

42 Pa.C.S.A. §§ 9541-9546. 

Commonwealth v. McMullen, No. 422 WDA 2011, unpublished 

memorandum at 1-3 (Pa.Super. filed July 17, 2012). Among appellant’s 

issues on appeal was whether he was entitled to additional credit for time 

served from January 7-8, 2008. Appellant was awarded credit time from 

January 9, 2008; however, apparently he was arrested on January 7, 2008, 

and remained incarcerated from that date until sentencing. Id. at 5. The 

Commonwealth conceded that appellant was owed two additional days of 

credit time towards his sentence. Id. at 6. Therefore, we vacated 

appellant’s sentence and remanded with instructions to award two days’ 

additional credit time towards appellant’s sentence. Id. We affirmed in all 

other respects. Id. at 1. 

 On December 27, 2012, our supreme court denied allowance of 

appeal. Commonwealth v. McMullen, No. 335 WAL 2012 (per curiam). 

On May 22, 2013, appellant appeared for re-sentencing. At that time, 

appellant requested to withdraw his March 2, 2010 guilty plea. The trial 

court denied the request and re-imposed the original negotiated sentence of 

10 to 20 years’ incarceration, plus an additional two days of credit for time 

served from January 7-8, 2008. (Notes of testimony, 5/22/13 at 20.) This 

timely appeal followed. Appellant has complied with Pa.R.A.P., 
J. S76002/14 

- 4 - 

Rule 1925(b), 42 Pa.C.S.A., and the trial court has filed an opinion. Counsel 

for appellant, Thomas N. Farrell, Esq., has filed a petition to withdraw and 

accompanying Anders brief.1

 Appellant has raised the following issues for this court’s review: 

1. Did the trial court err in failing to grant the 

motion to withdraw the guilty plea and applied 

the wrong standard, when the request was 

made before sentencing and the Appellant said 

he was innocent? 

2. Whether the trial court abused its discretion in

honoring the plea bargain and not sentencing 

Appellant to a lesser sentence when he 

testified against another person charged with 

criminal homicide and was promised by the 

police that this information would be brought 

to the attention of the trial court and probably 

getting time off his sentence? 

Appellant’s brief at 5. 

 Counsel having filed a petition to withdraw, we reiterate that “[w]hen 

presented with an Anders brief, this court may not review the merits of the

underlying issues without first passing on the request to withdraw.” 

Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa.Super. 2010), citing 

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

(en banc) (citation omitted). 

In order for counsel to withdraw from an appeal 

pursuant to Anders, certain requirements must be 

met, and counsel must: 

 

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

McClendon, 434 A.2d 1185 (Pa. 1981). 
J. S76002/14 

- 5 - 

(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, we find that Attorney Farrell has complied with all of the 

above requirements. In addition, Attorney Farrell served appellant a copy of 

the Anders brief, and advised him of his right to proceed pro se or hire a 

private attorney to raise any additional points he deemed worthy of this 

court’s review. Appellant has not responded to counsel’s motion to 

withdraw. As we find the requirements of Anders and Santiago are met, 

we will proceed to the issues on appeal. 

 In his first issue on appeal, appellant claims that the more liberal 

pre-sentencing standard of “any fair and just reason” should apply to his 
J. S76002/14 

- 6 - 

request to withdraw his guilty plea.2 We disagree. In Commonwealth v. 

Muntz, 630 A.2d 51 (Pa.Super. 1993), we addressed this precise issue. 

There, the appellant pled guilty to seven counts of robbery and two counts of 

simple assault, and was sentenced to an aggregate of 8 to 16 years’ 

incarceration. Id. at 52. The appellant did not request allowance to

withdraw his plea before his original sentencing. Id. at 54. On appeal, this 

court vacated the first sentence and remanded the matter to the trial court 

for re-sentencing. Id. at 52. 

 At the hearing prior to re-sentencing, the appellant requested 

permission to withdraw his guilty plea. Id. The trial court denied the 

request and imposed a new sentence of 6 to 12 years followed by 4 years of 

probation. Id. On appeal, as in the instant case, the appellant argued that 

his request to withdraw his guilty plea should have been considered as a 

pre-sentence motion for withdrawal. Id. at 53. This court disagreed, 

stating, 

here, appellant petitioned to withdraw his guilty plea 

only after sentence had been imposed for the first 

time. Even though appellant made his request 

before his resentencing, this does not negate the fact 

that appellant failed to request allowance to 

withdraw his plea before his original sentencing. 

Therefore, appellant’s request falls under the 

scrutiny of post-sentencing standard of “manifest 

 

2

 As explained further infra, in our prior memorandum, this court remanded 

for a correction of appellant’s sentence, not for appellant to revive his 

previously denied motion to withdraw guilty plea. However, as this is an 

Anders case, we will review the issue. 
J. S76002/14 

- 7 - 

injustice” rather than the pre-sentencing standard of 

“fair and just reason.” 

Id. at 54 (footnote omitted). 

 Similarly, here, appellant did not request to withdraw his guilty plea 

until after his original sentencing. Therefore, appellant must demonstrate 

prejudice on the order of a manifest injustice. 

 “When considering a petition to withdraw a plea submitted to a trial 

court after sentencing, it is well-established that a showing of prejudice on 

the order of manifest injustice is required before withdrawal is properly 

justified.” Commonwealth v. Byrne, 833 A.2d 729, 737 (Pa.Super. 2003), 

quoting Commonwealth v. Johns, 812 A.2d 1260, 1261 (Pa.Super. 2002) 

(emphasis in original). 

The standard for withdrawal of a guilty plea after 

imposition of sentence is much higher [than the 

standard applicable to a presentence motion to 

withdraw]; a showing of prejudice on the order of 

manifest injustice is required before withdrawal is

properly justified. A plea rises to the level of 

manifest injustice when it was entered into 

involuntarily, unknowingly, or unintelligently. 

Id., quoting Commonwealth v. Muhammad, 794 A.2d 378, 383 

(Pa.Super. 2002) (citations and internal quotation marks omitted). 

A showing of manifest injustice is required after 

imposition of sentence since, at this stage of the 

proceeding, permitting the liberal standard 

enunciated in [the presentence setting] might 

encourage the entrance of a plea as a ‘sentence 

testing device.’ We note that disappointment by a 

defendant in the sentence actually imposed does not

represent manifest injustice. 
J. S76002/14 

- 8 - 

Id. (citations omitted). 

 Here, appellant falls well short of such a showing. As stated above, 

the trial court conducted a thorough and probing plea colloquy on March 2, 

2010, establishing that appellant was entering the plea knowingly, 

intelligently, and voluntarily. Appellant’s assertions of actual innocence 

directly contradict his statements during the plea colloquy. (See notes of 

testimony, 3/2/10 at 24 (“Are you pleading guilty to these Informations and 

to these charges because you’re in fact guilty? THE DEFENDANT: Yes.”). 

See Commonwealth v. Stork, 737 A.2d 789, 790-791 (Pa.Super. 1999), 

appeal denied, 764 A.2d 1068 (Pa. 2000) (“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.”), 

citing Commonwealth v. Lewis, 708 A.2d 497 (Pa.Super. 1998). While 

appellant may be disappointed with his sentence, this does not constitute a 

“manifest injustice” permitting appellant to withdraw his plea. Byrne, 

supra. 

 In his second issue on appeal, appellant claims that the trial court 

abused its discretion in re-imposing the agreed upon sentence of 10 to 

20 years’ incarceration. Appellant argues that the trial court should have 

taken into account his cooperation in an unrelated homicide case and 

imposed a lesser sentence. According to appellant, the police promised him 
J. S76002/14 

- 9 - 

time off his sentence in exchange for his truthful testimony in that case. 

(Notes of testimony, 5/22/13 at 6-7.) 

 Before addressing the merits of this claim, we note that according to 

counsel, it is superfluous to include a Rule 2119(f)

3

 statement in an Anders

brief because under Santiago, supra, counsel is required to explain why 

the appeal is frivolous. (Appellant’s brief at 26-27.) Therefore, including a 

Rule 2119(f) statement explaining why there is a substantial question as to 

the appropriateness of the sentence imposed would work at cross-purposes 

with counsel’s responsibilities under Santiago. (Id.) We acknowledge 

counsel’s dilemma, however, it is established that even in the Anders

context, the Rule 2119(f) statement is required with respect to discretionary 

sentencing challenges. Commonwealth v. Wilson, 578 A.2d 523, 525 

(Pa.Super. 1990). Nevertheless, because this court has a duty to 

independently review the record to determine whether, in fact, the appeal is 

wholly frivolous, we will examine the merits of the issue. Id.; 

 

3

Pa.R.A.P. 2119(f) states: 

(f) Discretionary aspects of sentence. An 

appellant who challenges the discretionary aspects 

of a sentence in a criminal matter shall set forth in 

his brief a concise statement of the reasons relied

upon for allowance of appeal with respect to the 

discretionary aspects of a sentence. The statement

shall immediately precede the argument on the 

merits with respect to the discretionary aspects of

sentence.
J. S76002/14 

- 10 - 

Commonwealth v. Lilley, 978 A.2d 995, 998 (Pa.Super. 2009) (Anders

requires review of issues otherwise waived on appeal). 

 First, we observe that although we remanded for re-sentencing for the 

award of an additional two days of credit time, we affirmed in all other 

respects. McMullen, supra at 1. We characterized the purpose of remand 

as “for modification of sentence.” Id. Reading the memorandum as a 

whole, it seems clear that it was not our intention to remand for 

re-sentencing to a new sentence but rather for a sentencing correction.4 

Appellant’s negotiated sentence of 10 to 20 years, following a thorough and 

complete guilty plea colloquy, stands. As such, this is not truly a 

discretionary aspects of sentencing challenge. 

 Second, the crux of appellant’s argument, that the trial court, on 

remand, should have considered his cooperation with authorities in an 

unrelated homicide trial, misses the mark where his testimony in that case 

occurred after his original sentencing. As the assistant district attorney 

explained, 

The most that I thought his testimony could ever do

to assist [appellant] was perhaps to assist him in 

parole. That if the Parole Board knew that he had 

cooperated in a homicide or reached out and testified 

that maybe he could get paroled at his minimum, but

he had been sentenced already and I was under the 

impression that was, you know, not something that 

was going to change. Although I wasn’t party to the 

conversations that [appellant] had with either 

Detectives Leheny, Smith, or Evans. 

 

4

 In fact, this author also wrote the prior memorandum. 
J. S76002/14 

- 11 - 

Notes of testimony, 5/22/13 at 11-12. The trial court did not abuse its 

discretion in re-sentencing appellant to the bargained for sentence of 10 to 

20 years, with the additional two days’ credit for time served as directed by 

this court. There is no merit here. 

 For the reasons discussed above, we determine that appellant’s issues 

on appeal are wholly frivolous and without merit. Furthermore, after our 

own independent review of the record, we are unable to discern any 

additional issues of arguable merit. Therefore, we will grant 

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

 Petition to withdraw granted. Judgment of sentence affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 1/16/2015 
J. S76002/14 

- 12 -