J-S01036-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

GERALD ROBERT MARTIN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 795 MDA 2021

Appeal from the Judgment of Sentence Entered May 24, 2021

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

No(s): CP-08-CR-0000362-2020

COMMONWEALTH OF PENNSYLVANIA

v.

GERALD ROBERT MARTIN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 796 MDA 2021

Appeal from the Judgment of Sentence Entered May 24, 2021

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

No(s): CP-08-CR-0000214-2020

BEFORE: BOWES, J., NICHOLS, J., and COLINS, J.*

DISSENTING MEMORANDUM BY BOWES, J.: FILED OCTOBER 13, 2022

The first time this Court remanded these cases for the trial court to 

determine whether Appellant’s counsel abandoned him, given counsel’s failure 

to comply with or respond to two orders of this Court, I dissented to the 

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* Retired Senior Judge assigned to the Superior Court.
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Majority’s decision to inject further delay into the resolution of this appeal.1 

Since in my view the Majority again has opted to unnecessarily extend this 

process, I am constrained to dissent.

The Majority remands with directions for counsel to refile his petition to 

withdraw and to send it and a “new cop[y] of the Anders brief” to Appellant 

because counsel failed “to acknowledge whether he satisfied his requirement 

to provide Appellant with a copy of the Anders brief[.]” Majority

Memorandum at 8. However, the trial court’s order filed in response to our 

directions in the prior remand includes the express finding that counsel cured 

all of the deficiencies noted in our prior memorandum, including “provid[ing] 

his Anders brief, petition to withdraw, and the notification of rights to 

Appellant.” Order, 8/9/22, at ¶ 4. To me, this representation of counsel to 

the trial court, documented in the certified record, is as good, if not better, an 

indication that Appellant was served with the necessary documents than a 

proof of service appended to a filing. Accordingly, rather than remand again, 

I would proceed to address the substance of the appeal in accordance with 

the applicable principles. See, e.g., Commonwealth v. Wrecks, 931 A.2d 

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1 Although counsel appeared before the trial court in accordance with our 

remand and finally took the required actions to minimally fulfill his obligation 

to represent his client, I observe that we still have been provided no 

explanation from counsel or the trial court for counsel’s failure to comply with 

our first two directives. Accordingly, I maintain my belief that counsel violated 

his obligations under the rules of professional conduct, and appears to have 

acted in contempt of this Court. 
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717, 721 (Pa.Super. 2007) (“[I]f counsel’s petition and brief satisfy Anders, 

we will then undertake our own review of the appeal to determine if it is wholly 

frivolous.”). See also Commonwealth v. Flowers, 113 A.3d 1246, 1249 

(Pa.Super. 2015) (indicating that this Court must “make a full examination of 

the proceedings and make an independent judgment to decide whether the 

appeal is in fact wholly frivolous” (cleaned up)). 

The issues of arguable merit identified by counsel are as follows:

1. Whether the Appellant’s plea was knowing, voluntary and 

intelligent.

2. Whether the sentence imposed was appropriate given the 

circumstances of this case.

3. Whether the Appellant’s sentence was legal and within the 

Sentencing Guidelines for the Commonwealth of 

Pennsylvania.

Anders brief at 3. 

By way of background, Appellant’s aggregate term of sixteen to sixty 

months of incarceration was imposed after he entered guilty pleas to delivery 

of a controlled substance and possession of drug paraphernalia and following 

a presentence investigation. See N.T. Sentencing, 5/24/21, at 1. The 

sentence is composed of standard-range sentences, and the trial court both 

ordered that Appellant receive credit for time served and noted his eligibility 

for the state drug treatment program and the Recidivism Risk Reduction 

Incentive (“RRRI”) program. Id. at 8. 
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Addressing the first issue identified by counsel, I observe that, since 

Appellant did not object during the plea colloquy or file a motion to withdraw 

his guilty plea in the trial court prior to filing this appeal, Appellant waived his 

right to challenge the validity of his plea herein. See Commonwealth v. 

Lincoln, 72 A.3d 606, 609–10 (Pa.Super. 2013) (“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.”). Consequently, attempting to raise the claim now would be 

frivolous. See Commonwealth v. Tukhi, 149 A.3d 881, 888 (Pa.Super. 

2016) (“An issue that is waived is frivolous.”). 

Turning to the second issue, I agree with counsel that challenging the 

discretionary aspects of his sentence would be fruitless.

2

 See Anders brief 

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2 Appellant failed to raise a challenge to the discretionary aspects of his 

sentence at the sentencing hearing or in a post-sentence motion. As noted 

by the trial court, this would ordinarily result in waiver. See Trial Court 

Opinion, 9/7/21, at 5 (citing Commonwealth v. Cartrette, 83 A.3d 1030, 

1042 (Pa.Super. 2013)). However, the trial court misadvised Appellant about 

his post-sentence rights at the sentencing hearing, informing Appellant as 

follows: 

[Appellant], there’s two ways you can challenge the sentence. 

You can file a [m]otion with me, you have to do that in ten (10) 

days. You can file an appeal, you have to do that within thirty 

(30) days. You have the right to an attorney to help with both 

those processes. [Counsel] is your attorney, so you want to make 

sure you talk with him about either of those options and do so 

promptly, if that is something you want to consider.

(Footnote Continued Next Page)
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at 16-17. I discern nothing in the certified record suggesting that there is any 

substantial question that the trial court abused its discretion in imposing 

sentence at the low end of the standard range after it duly considered the 

presentence investigation report, which revealed Appellant’s prior record 

score of four, failure to address his addiction issues under prior supervision, 

and failure to submit to a drug and alcohol evaluation or chemical testing while 

on bail in these cases. Therefore, this issue cannot support a non-frivolous 

appeal.

As for the third issue identified by counsel, I discern no illegality in 

Appellant’s sentences. Being within the standard range of the sentencing 

guidelines, they are plainly within the statutory limits. Furthermore, the trial 

court complied with its obligation to assess Appellant’s RRRI eligibility and 

expressly found him eligible. See N.T. Sentencing, 5/24/21, at 8.

Moreover, my “simple review of the record to ascertain if there 

appear[s] on its face to be arguably meritorious issues that counsel, 

intentionally or not, missed or misstated[,]” has revealed no additional issues 

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N.T. Sentencing, 5/24/21, at 9. Insofar as the trial court misadvised Appellant 

that he could challenge the sentence by filing a direct appeal, I find waiver 

inapplicable in the face of this breakdown in court processes. Accord

Commonwealth v. Patterson, 940 A.2d 493, 498 (Pa.Super. 2007) 

(compiling cases in which the “courts of this Commonwealth have held that a 

court breakdown occurred in instances where the trial court, at the time of 

sentencing, either failed to advise Appellant of his post-sentence and appellate 

rights or misadvised him”).
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counsel failed to address.3 Commonwealth v. Dempster, 187 A.3d 266, 

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

Accordingly, because I agree with counsel that pursuing this appeal 

would be wholly frivolous, I would affirm the judgment of sentence and grant 

counsel’s petition to withdraw. As the Majority instead remands for additional 

filings, I respectfully dissent. 

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3

 I have conducted my review cognizant of the fact that “upon entry of a 

guilty plea, a defendant waives all claims and defenses other than those 

sounding in the jurisdiction of the court, the validity of the plea, and what has 

been termed the ‘legality’ of the sentence imposed.” Commonwealth v. 

Eisenberg, 98 A.3d 1268, 1275 (Pa. 2014).