J-S26034-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

WENEDVY PERCY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1609 MDA 2023

Appeal from the Judgment of Sentence Entered October 2, 2023

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

No(s): CP-06-CR-0004147-2021

BEFORE: PANELLA, P.J.E., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.: FILED: SEPTEMBER 9, 2024

Wenedvy Percy appeals from the judgment of sentence imposed after 

he pled nolo contendere to sexual assault pursuant to a negotiated plea.

1

 He 

challenges the discretionary aspects of his sentence. Additionally, Percy’s

counsel filed a petition to withdraw from representation and an accompanying 

brief pursuant to Anders v. California, 386 U.S. 738 (1967). Upon review, 

we grant counsel’s petition, and affirm the judgment of sentence.

On October 30, 2021, Percy, who was then 42, forced a 17-year-old,

intellectually disabled female from a playground in the City of Reading into a 

nearby garage. Percy proceeded to sexually assault her by putting his penis 

in her vagina without her consent. Percy was arrested and charged with 

multiple offenses.

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1 18 Pa.C.S.A. § 3124.1.
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On June 16, 2023, Percy entered a negotiated plea of nolo contendere

to sexual assault. In exchange for his plea, the Commonwealth agreed to a 

sentence of 4 to 8 years’ incarceration and the remaining counts were 

dismissed. Sentencing was deferred pending a sexually violent predator

(“SVP”) assessment. 

On October 2, 2023, the trial court found that Percy was not an SVP. 

The court then sentenced Percy to 4 to 8 years’ incarceration in accordance 

with the plea agreement. Percy filed a post-sentence motion seeking 

modification of his sentence, which the trial court denied.

Percy filed this timely appeal. He and the trial court complied with 

Pennsylvania Rule of Appellate Procedure 1925. Counsel filed a petition to 

withdraw from representation and an Anders brief with this Court. Percy did 

not file a counseled or pro se response to the Anders brief.

Before we may consider the issues raised in the Anders brief, we must 

first consider counsel's petition to withdraw from representation. See

Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super. 2010) (holding 

that, when 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 an appeal is frivolous 

and wishes to withdraw from representation, counsel must do the following:

(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 
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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. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006) 

(citation omitted). In Commonwealth v. Santiago, 978 A.2d 349 (Pa. 

2009), our Supreme Court addressed the second requirement of Anders, i.e., 

the contents of an Anders brief, and required that the brief:

(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 at 361. Once counsel has satisfied the Anders

requirements, it is then this Court’s responsibility “to 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). 

Here, counsel filed both an Anders brief and a petition for leave to 

withdraw. Further, the Anders brief substantially comports with the 

requirements set forth by our Supreme Court in Santiago. Finally, the record 

included a copy of the letter that counsel sent to Percy of counsel’s intention 

to seek permission to withdraw and advising Percy of his right to proceed pro 
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se or retain new counsel and file additional claims.2 Accordingly, as counsel 

has complied with the procedural requirements for withdrawing from 

representation, we will review the issue raised by counsel to determine 

whether Percy’s appeal is wholly frivolous.

In the Anders brief, counsel indicates that Percy wishes to challenge 

the discretionary aspects of his sentence. Specifically, Percy claims that his 

sentence was inconsistent with the protection of the public, the gravity of the 

offense, the impact on the victim, and his rehabilitative needs. According to 

Percy, the trial court should have sentenced him at the bottom of the standard 

range to 3 to 6 years’ incarceration instead of 4 to 8 years’ incarceration.

3

 

Anders Brief at 12, 21, 27.

At the outset, we conclude that we do not need to consider the 

substance of Percy’s issue. Because Percy entered a negotiated plea, he is 

prohibited from challenging the discretionary aspects of his sentence.

A plea of nolo contendere is treated the same as a guilty plea in terms 

of its effect upon a particular case. Commonwealth v. Thomas, 506 A.2d 

420, 422 (Pa. Super. 1986). A plea of nolo contendere, like a guilty plea, acts 

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2 Although the petition and brief do not contain certificates of service

demonstrating service on Percy, counsel indicates in the petition that copies

of the petition, Anders brief, and letter were sent to Percy. Additionally, the

letter references the petition and brief as having been enclosed.

3 A standard range minimum sentence under the guidelines in this matter is 

36 months to 54 months, plus or minus 12 months. N.T., 10/2/23, at 5.
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as a waiver of all non-jurisdictional defects and defenses and only allows 

challenges to the legality of sentence, validity of the plea, and subject-matter 

jurisdiction of the court. Id.

It is well settled that when the plea agreement contains a 

negotiated sentence which is accepted and imposed by the 

sentencing court, there is no authority to permit a challenge to 

the discretionary aspects of that sentence. If either party to a 

negotiated plea agreement believed the other side could, at any 

time following entry of sentence, approach the judge and have the 

sentence unilaterally altered, neither the Commonwealth nor any 

defendant would be willing to enter into such an agreement. 

Permitting a discretionary appeal following the entry of a 

negotiated plea would undermine the designs and goals of plea 

bargaining and would make a sham of the negotiated plea 

process. 

Commonwealth v. Morrison, 173 A.3d 286, 290 (Pa. Super. 2017) (quoting 

Commonwealth v. Reichle, 589 A.2d 1140, 1141 (Pa. Super. 1991) 

(citation, quotation marks, and footnote omitted).

Here, our review of the record confirms that Percy entered a negotiated 

nolo contendere plea. Percy agreed to plead to sexual assault in exchange for 

a sentence of 4 to 8 years’ incarceration and dismissal of the remaining counts. 

At the hearing, Percy was colloquied. Notably, Percy specifically indicated that 

he understood his plea and the length of his sentence. N.T., 6/16/23, at 4.

Although some questions arose during the oral colloquy, Percy consulted with 

his counsel and any uncertainty was resolved. See id. at 6, 10. The court 

concluded that Percy’s plea was entered knowingly, voluntarily, and

intelligently and accepted his plea. Id. at 8. Additionally, Percy acknowledged 

that, by entering a plea, his rights were limited. Id. at 3-4. Percy also 
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executed a written plea colloquy. Id. at 3. At the sentencing hearing, the 

trial court sentenced Percy in accordance with the parties’ agreement. N.T., 

10/2/23, at 5, 7.

Percy did not challenge the validity of the plea proceedings or move to 

withdraw his plea. Percy received the sentence for which he bargained. 

Therefore, Percy waived any challenge to the discretionary aspects of his 

sentence and his challenge would not be cognizable on appeal. See 

Commonwealth v. Lincoln, 72 A.3d 606, 609–10 (Pa. Super. 2013). Percy, 

therefore, cannot challenge the discretionary aspects of that sentence. See 

Commonwealth v. Eisenberg, 98 A.3d 1268, 1276 (Pa. 2014) (“When a 

negotiated plea includes sentencing terms[,] the defendant's knowing and 

voluntary acceptance of those terms rightly extinguishes the ability to 

challenge a sentence the defendant knew was a proper consequence of his 

plea.”); see also Commonwealth v. O'Malley, 957 A.2d 1265, 1267 (Pa. 

Super. 2008) (“One who pleads guilty and receives a negotiated sentence may 

not then seek discretionary review of that sentence.”); Reichle, 589 A.2d at

1141 (dismissing appellant's appeal of discretionary aspects of sentence 

where she received precisely what she was promised under terms of 

negotiated plea agreement). Accordingly, Percy is precluded from appealing

the discretionary aspects of his sentence.

For the foregoing reasons, we conclude that Percy’s claim on appeal is

frivolous. Further, in accordance with Dempster, we have independently 
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reviewed the certified record to determine if there are any non-frivolous issues 

that counsel may have overlooked. Having found none, we agree that the 

appeal is wholly frivolous. Therefore, we grant counsel's petition to withdraw 

and affirm the judgment of sentence.

Petition to withdraw granted. Judgment of sentence affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 9/9/2024