J-A16037-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ZACHARY NELSON GLOVER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1918 MDA 2019

Appeal from the Judgment of Sentence Entered October 8, 2019

in the Court of Common Pleas of Berks County 

Criminal Division at No(s): CP-06-CR-0003344-2018

BEFORE: PANELLA, P.J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 28, 2020

Zachary Nelson Glover (“Glover”) appeals from the judgment of 

sentence imposed following the entry of his negotiated guilty plea to 

aggravated assault.

1

 Additionally, Glover’s counsel, Sean M. Fitzgerald, 

Esquire (“Attorney Fitzgerald”), has filed an Application to Withdraw as 

Counsel, and a brief pursuant to Anders v. California, 368 U.S. 738 (1967), 

and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We grant 

Attorney Fitzgerald’s Application to Withdraw, and affirm Glover’s judgment 

of sentence.

On May 26, 2018, at approximately 2:30 a.m., Glover was involved in a

drive-by shooting at an apartment located at 44 South 4th Street in Hamburg, 

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1 18 Pa.C.S.A. § 2702(a)(1).
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Berks County. Glover, operating a black sedan, drove up to the apartment 

and fired a bullet into the apartment, striking Michelle Bowman in the hand. 

Glover drove away, then turned around and returned to the apartment. 

Glover fired a second bullet into the apartment before leaving the area. 

On October 8, 2019, Glover entered a negotiated guilty plea to 

aggravated assault and, in exchange, the remaining charges were dismissed 

by the trial court. Additionally, Glover and the Commonwealth agreed to a 

sentence of 72 to 156 months in prison. Glover also agreed to pay restitution 

in the amount of $8,158.47. The trial court sentenced Glover, in accordance 

with the plea agreement, to 72 to 156 months in prison, with credit for time 

served, plus fines, costs, and restitution.

Glover filed a timely post-sentence Motion, challenging the discretionary 

aspects of his sentence. In his post-sentence Motion, Glover asserted that his 

sentence was not consistent with the protection of the public, the gravity of 

the offense as it relates to the impact on the life of the victim and on the 

community, and on the rehabilitative needs of the defendant. Further, Glover 

asserted that he had a prior record score of zero, and the objectives of 42 

Pa.C.S.A. § 9721(b) could have been satisfied by a lesser sentence. On 

October 23, 2019, the trial court denied Glover’s post-sentence Motion.

Glover filed a timely Notice of Appeal and court-ordered Pa.R.A.P. 

1925(b) Concise Statement of errors complained of on appeal. Attorney 

Fitzgerald subsequently filed, with this Court, an Application to Withdraw as 
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Counsel and a brief pursuant to Anders. Glover did not file a pro se brief, nor 

did he retain alternate counsel for this appeal.

Before addressing Glover’s issue on appeal, we must determine whether 

Attorney Fitzgerald has complied with the dictates of Anders and its progeny 

in petitioning to withdraw from representation. See Commonwealth v. 

Mitchell, 986 A.2d 1241, 1244 n.2 (Pa. Super. 2009) (stating 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.”). 

Pursuant to Anders, when counsel believes that an appeal is frivolous and 

wishes to withdraw from representation, he or she must

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

making a conscientious examination of the record and 

interviewing the defendant, counsel has determined the appeal 

would be frivolous, (2) file a brief referring to any issues in the 

record of arguable merit, and (3) furnish a copy of the brief to 

defendant and advise him of his right to retain new counsel or to 

raise any additional points that he deems worthy of the court’s 

attention. The determination of whether the appeal is frivolous 

remains with the court.

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

omitted).

Additionally, the Pennsylvania Supreme Court has explained 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.

Santiago, 978 A.2d at 361.

After determining that counsel has satisfied the technical requirements 

of Anders and Santiago, this Court must then “conduct a simple review of 

the record to ascertain if there appear on its face to be arguably meritorious 

issues that counsel, intentionally or not, missed or misstated.” 

Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en 

banc).

Instantly, our review of the Anders Brief and the Application to 

Withdraw reveals that Attorney Fitzgerald has substantially complied with 

each of the technical requirements of Anders/Santiago. See 

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

that counsel must substantially comply with the requirements of Anders). 

Attorney Fitzgerald indicates that he has made a conscientious examination of 

the record and determined that an appeal would be frivolous. The record 

further reflects that Attorney Fitzgerald has furnished a copy of the Anders

Brief to Glover, advised Glover of his right to retain new counsel or proceed 

pro se, or raise any additional points that he deems worthy of this Court’s 

attention.2 Additionally, the Anders Brief substantially complies with the 

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2

Initially, Attorney Fitzgerald’s Application to Withdraw, filed April 1, 2020, 

did not include the letter advising Glover of his rights, as required by this 
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requirements of Santiago. As Attorney Fitzgerald has complied with all of 

the requirements for withdrawing from representation, we will examine the 

record and make an independent determination of whether Glover’s appeal is, 

in fact, wholly frivolous.

In the Anders Brief, Attorney Fitzgerald presents the following issue for 

our review: “Whether the sentencing court abused its discretion in imposing 

an excessive sentence on [Glover,] when the sentence imposed is inconsistent 

with the protection of the public, the gravity of the offense, the impact on the 

victim, and the rehabilitative needs of [Glover].” Anders Brief at 9.

Glover argues that the trial court “failed to follow the general standards 

for sentencing set forth [in] 42 Pa.C.S.A. § 9721(b).” Brief for Appellant at 

17. Glover asserts that the trial court imposed a sentence that was 

“inconsistent with the protection of the public, the gravity of the offense, the 

impact on the victim, and the rehabilitative needs of [Glover].” Id.

Glover’s claim challenges the discretionary aspects of his sentence, from 

which there is no absolute right to appeal. See Commonwealth v. 

Sunealitis, 153 A.3d 414, 420 (Pa. Super. 2016). Here, Glover entered into 

a negotiated plea agreement, which included a sentencing agreement, and, 

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Court’s holding in Commonwealth v. Millisock, 873 A.2d 748, 751 (Pa. 

Super. 2005). On April 3, 2020, this Court issued an Order requiring Attorney 

Fitzgerald to file the letter and proof of service that Glover had received the 

Millisock letter. On April 8, 2020, Attorney Fitzgerald filed, with this Court, 

proof of service to Glover, dated April 8, 2020, and the Millisock letter signed 

and dated on April 1, 2020.
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therefore, he cannot challenge the discretionary aspects of his sentence on 

appeal. See Commonwealth v. Reid, 117 A.3d 777, 784 (Pa. Super. 2015) 

(holding that a challenge to the discretionary aspects of a negotiated sentence 

is unreviewable); see also Commonwealth v. Dalberto, 648 A.2d 16, 21 

(Pa. Super. 1994) (stating that “in 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....”).3 Accordingly, Glover’s claim 

is wholly frivolous.

Finally, our independent review of the record discloses no other 

“arguably meritorious issues that counsel, intentionally or not, missed or 

misstated.” Dempster, 187 A.3d at 272. As such, we grant Attorney 

Fitzgerald’s Application to Withdraw, and affirm the judgment of sentence.

Application to Withdraw granted. Judgment of sentence affirmed.

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3 Further, a review of the record reveals that the trial court considered all 

relevant factors, and had the benefit of a pre-sentence investigation report 

(“PSI”). N.T. (Guilty Plea and Sentence), 10/8/19, at 14-16; see also 

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (stating 

that where a sentencing court is informed by a PSI, it is presumed that they 

are “aware of relevant information regarding the defendant’s character and 

weighed those considerations along with mitigating statutory factors.”).
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/28/2020