J-A07043-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

HEATH PATRICK WILCOX 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 1974 EDA 2021

Appeal from the Judgment of Sentence Entered August 26, 2021

In the Court of Common Pleas of Wayne County

Criminal Division at No(s): CP-64-CR-0000107-2020

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

HEATH PATRICK WILCOX 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 1975 EDA 2021

Appeal from the Judgment of Sentence Entered August 26, 2021

In the Court of Common Pleas of Wayne County

Criminal Division at No(s): CP-64-CR-0000108-2020

BEFORE: DUBOW, J., McLAUGHLIN, J., and KING, J.

MEMORANDUM BY KING, J.: FILED JULY 22, 2022

Appellant, Heath Patrick Wilcox, appeals from the judgment of sentence 

entered in the Wayne County Court of Common Pleas, following his open guilty 

plea to criminal trespass—entering building or occupied structure, and criminal 
J-A07043-22

- 2 -

trespass—defiant trespasser.

1

 We affirm and grant counsel’s petition to 

withdraw.

The trial court set forth the relevant facts and procedural history of this 

case as follows:

On May 11, 2020, [Appellant] was charged with Burglary –

No Overnight Accommodations, Person Present, and 

Criminal Trespass; the crimes occurred on April 8, 2020. 

These charges were listed under Information 108-2020. 

Additional charges were filed by the Prosecution for Burglary 

– No Overnight Accommodations, and Criminal Trespass –

Enter Structure; crimes that occurred on April 23, 2020. 

These charges were listed under Information 107-2020. On 

July 8, 2021, an Amended Information was filed to 107-

2020 adding a charge for Defiant Trespass – Enter 

Structure. 

On July 8, 2021, [Appellant] signed a written guilty plea to 

the charges of Defiant Trespass Posted and Criminal 

Trespass – Enter Structure; listed under case No.’s 107-

2020 and 108-2020 respectively. The [c]ourt swore in 

[Appellant] at his Guilty Plea Colloquy and questioned him 

about his understanding of the plea and satisfaction with his 

counsel. [Appellant] responded affirmatively that he 

understood the gravity of the potential punishment attached 

to his plea and the facts of the case as read to him were 

substantially correct. The signed Guilty Plea Colloquy is 

absent any mention of an in-patient rehabilitation option for 

[Appellant]. On this same day, the [c]ourt ordered a PreSentence Investigation Report on [Appellant].

... On August 18, 2021, [Appellant] filed a Motion to 

Continue and Motion to Withdraw Guilty Pleas. [Appellant] 

claimed he was under the belief that the Sentencing Judge 

agreed that he would be allowed to attend rehabilitation 

prior to sentencing, which he was not allowed to do. There 

is, however, a drug and alcohol treatment program in the 

State Prison that the Sentencing Judge urged [Appellant] to 

____________________________________________

1 18 Pa.C.S.A. § 3503(a)(1) and (b)(1).
J-A07043-22

- 3 -

participate in. [The court denied Appellant’s motion to 

withdraw and sentenced him on August 26, 2021 to an 

aggregate term of 15 to 60 months’ imprisonment]. 

(Trial Court Opinion, 11/9/21, at 1-2).

Appellant timely filed separate notices of appeal at each underlying 

docket on September 24, 2021.2 On October 7, 2021, the court ordered 

Appellant to file a concise statement of errors complained of on appeal 

pursuant to Pa.R.A.P. 1925(b). Appellant complied on October 28, 2021. 

Preliminarily, appellate counsel seeks to withdraw representation 

pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 

493 (1967) and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 

(2009). Anders and Santiago require counsel to: 1) petition the Court for 

leave to withdraw, certifying that after a thorough review of the record, 

counsel has concluded the issues to be raised are wholly frivolous; 2) file a 

brief referring to anything in the record that might arguably support the 

appeal; and 3) furnish a copy of the brief to the appellant and advise him of 

his right to obtain new counsel or file a pro se brief to raise any additional 

points the appellant deems worthy of review. Santiago, supra at 173-79, 

978 A.2d at 358-61. Substantial compliance with these requirements is 

sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super. 

2007). 

____________________________________________

2 This Court subsequently consolidated the appeals sua sponte.
J-A07043-22

- 4 -

In Santiago, supra, our Supreme Court addressed the briefing 

requirements where court-appointed appellate counsel seeks to withdraw:

Neither Anders nor McClendon3requires that counsel’s 

brief provide an argument of any sort, let alone the type of 

argument that counsel develops in a merits brief. To repeat, 

what the brief must provide under Anders are references 

to anything in the record that might arguably support the 

appeal. 

* * *

Under Anders, the right to counsel is vindicated by 

counsel’s examination and assessment of the record and 

counsel’s references to anything in the record that arguably 

supports the appeal. 

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

[I]n the Anders brief that accompanies court-appointed 

counsel’s petition to withdraw, counsel 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. 

Id. at 178-79, 978 A.2d at 361. After confirming that counsel has met the 

antecedent requirements to withdraw, this Court makes an independent 

review of the record to confirm that the appeal is wholly frivolous. 

Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super. 2006). See also 

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

____________________________________________

3 Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981). 
J-A07043-22

- 5 -

Instantly, appellate counsel has filed a petition to withdraw. The petition 

states that counsel reviewed the trial court record and determined that the 

appeal is frivolous. Counsel also served a copy of the petition to Appellant, 

along with a letter advising him of his right to file a response to counsel’s 

petition as either a pro se litigant, or through new counsel. Further, counsel 

filed an Anders brief which explains the facts and procedural history of the 

case and discusses the relevant law. Counsel’s brief also cites to the record 

and explains counsel’s conclusion that the appeal is wholly frivolous. 

Therefore, counsel has substantially complied with the requirements set forth 

in Anders and Santiago.

Counsel raises the following issue on Appellant’s behalf:

4

Is Appellant’s appeal, challenging the trial court’s denial of

his motion to withdraw his guilty pleas based on his 

mistaken belief that [the] sentencing judge agreed to let 

him go to inpatient rehabilitation if he pled guilty and the 

trial court’s sentence in the aggravated range,...wholly 

frivolous and without arguable merit within the meaning of 

[Anders]? 

(Anders Brief at 4).

Appellant argues the court abused its sentencing discretion by imposing 

a sentence in the aggravated range. Appellant further stresses that he was 

under the impression “that [the] sentencing judge agreed to let him go to 

inpatient rehabilitation if he pled guilty.” (Id. at 9) (emphasis in original). 

____________________________________________

4 Appellant has not responded to the Anders brief pro se or with newlyretained counsel.
J-A07043-22

- 6 -

Appellant contends that the court should have let Appellant withdraw his guilty 

plea when Appellant realized that he misunderstood the nature of his plea 

deal. Appellant concludes the court erred by failing to grant his motion to 

withdraw his guilty plea and by imposing an aggravated-range sentence, and 

this Court must grant relief. We disagree. 

Initially, a challenge to the discretionary aspects of sentencing is not 

automatically reviewable as a matter of right. Commonwealth v. Hunter, 

768 A.2d 1136 (Pa.Super. 2001), appeal denied, 568 Pa. 695, 796 A.2d 979 

(2001). Prior to reaching the merits of a discretionary sentencing issue:

We conduct a four part analysis to determine: (1) whether 

appellant has filed a timely notice of appeal, see Pa.R.A.P. 

902 and 903; (2) whether the issue was properly preserved 

at sentencing or in a motion to reconsider and modify 

sentence, see [Pa.R.Crim.P. 720]; (3) whether appellant’s 

brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether 

there is a substantial question that the sentence appealed 

from is not appropriate under the Sentencing Code, 42 

Pa.C.S.A. § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal 

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted). 

Significantly, objections to the discretionary aspects of a sentence are 

waived if they are not raised at the sentencing hearing or in a timely filed 

post-sentence motion. Commonwealth v. Griffin, 65 A.3d 932 (Pa.Super. 

2013), appeal denied, 621 Pa. 682, 76 A.3d 538 (2013). “This failure cannot 

be cured by submitting the challenge in a Rule 1925(b) statement.” 

Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa.Super. 2004), appeal 
J-A07043-22

- 7 -

denied, 580 Pa. 695, 860 A.2d 122 (2004). 

Instantly, Appellant did not file a post-sentence motion or object to the 

court’s sentencing discretion on the record at the sentencing hearing. Instead, 

Appellant raised his sentencing challenge for the first time in his concise

statement. Thus, Appellant did not properly preserve his sentencing claim on 

appeal and the issue is waived. See Griffin, supra; McAfee, supra. 

Even if Appellant had preserved his sentencing claim on appeal, this 

Court will not disturb the judgment of the sentencing court absent an abuse 

of discretion. Commonwealth v. Fullin, 892 A.2d 843 (Pa.Super. 2006). 

[A]n abuse of discretion is more than a mere error of 

judgment; thus, a sentencing court will not have abused its 

discretion unless the record discloses that the judgment 

exercised was manifestly unreasonable, or the result of 

partiality, prejudice, bias or ill-will. In more expansive 

terms, ...: An abuse of discretion may not be found merely 

because an appellate court might have reached a different

conclusion, but requires a result of manifest 

unreasonableness, or partiality, prejudice, bias, or ill-will, or 

such lack of support so as to be clearly erroneous. 

The rationale behind such broad discretion and the 

concomitantly deferential standard of appellate review is 

that the sentencing court is in the best position to determine 

the proper penalty for a particular offense based upon an 

evaluation of the individual circumstances before it. Simply 

stated, the sentencing court sentences flesh-and-blood 

defendants and the nuances of sentencing decisions are 

difficult to gauge from the cold transcript used upon 

appellate review. Moreover, the sentencing court enjoys an 

institutional advantage to appellate review, bringing to its 

decisions an expertise, experience, and judgment that 

should not be lightly disturbed. Even with the advent of the 

sentencing guidelines, the power of sentencing is a function 

to be performed by the sentencing court. Thus, rather than 

cabin the exercise of a sentencing court’s discretion, the 
J-A07043-22

- 8 -

guidelines merely inform the sentencing decision. 

Commonwealth v. Walls, 592 Pa. 557, 564-65, 926 A.2d 957, 961-62 

(2007) (internal quotation marks, footnotes, and citations omitted). 

Pursuant to Section 9721(b), “the court shall follow the general principle 

that the sentence imposed should call for confinement that is 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 the rehabilitative 

needs of the defendant.” 42 Pa.C.S.A. § 9721(b). See also Commonwealth 

v. Fowler, 893 A.2d 758 (Pa.Super. 2006) (stating where court had benefit 

of pre-sentence investigation report, we can presume it was aware of relevant 

information regarding defendant’s character and weighed those 

considerations along with mitigating statutory factors). 

Instantly, the trial court explained the rationale behind sentencing 

Appellant in the aggravated range as follows:

[The trial court] reviewed the Pre-Sentence Report prepared 

for [it] by the Probation Office. [Appellant is] thirty-eight 

years old, [he has] four prior crimes dating back 

approximately ten years, clearly addiction issues whether it 

be [h]eroin, [p]ot...[.] [T]he aggravated sentence 

recommended to [the court] is not because [Appellant is] 

an addict[,] it’s because of continued criminal activity. Had 

[Appellant] gotten treatment and followed through in 

recovery and not had a new criminal charge that might be a 

different story[,] but [Appellant did] have a current charge 

pending...similar to prior charges involving trespass.

(N.T. Sentencing Hearing, 8/26/21, at 21-22). 

The sentencing judge also highlighted that Appellant’s crime impacted 
J-A07043-22

- 9 -

the victim and caused her to become paranoid and hypervigilant. (Id. at 22). 

The record shows the trial court properly explained the factors it relied on 

when imposing an aggravated range sentence. See 42 Pa.C.S.A. § 9721(b). 

Moreover, the court had the benefit of a pre-sentence investigation report, so 

the court was aware of all relevant and mitigating factors. See Fowler, 

supra. Thus, even if Appellant had preserved his sentencing challenge, it 

would not merit relief. See Fullin, supra. See also Walls, supra.

With respect to Appellant’s challenge to the court’s denial of his motion 

to withdraw his guilty plea, this Court reviews the denial of a pre-sentence 

motion to withdraw a guilty plea for an abuse of discretion. Commonwealth 

v. Gordy, 73 A.3d 620 (Pa.Super. 2013). See also Pa.R.Crim.P. 591(A) 

(stating: “At any time before the imposition of sentence, the court may, in its 

discretion, permit, upon motion of the defendant, or direct, sua sponte, the 

withdrawal of a plea of guilty or nolo contendere and the substitution of a plea 

of not guilty”). “[T]he proper inquiry on consideration of such a withdrawal 

motion is whether the accused has made some colorable demonstration, under 

the circumstances, such that permitting withdrawal of the plea would promote 

fairness and justice.” Commonwealth v. Carrasquillo, 631 Pa. 692, 706, 

115 A.3d 1284, 1292 (2015). Moreover, while Pennsylvania law embraces a 

liberal policy with respect to granting motions to withdraw a guilty plea, 

[T]rial courts have the discretion to assess the plausibility 

of claims of innocence. Consistent with the well-established 

standards governing trial court discretion, it is important 

that appellate courts honor trial courts’ discretion in these 
J-A07043-22

- 10 -

matters, as trial courts are in the unique position to assess 

the credibility of claims of innocence and measure, under 

the circumstances, whether defendants have made sincere 

and colorable claims that permitting withdrawal of their 

pleas would promote fairness and justice.

Commonwealth v. Norton, 650 Pa. 569, 584-85, 201 A.3d 112, 121 (2019).

Further, a guilty plea will be deemed valid if an examination of the 

totality of the circumstances surrounding the plea shows that the defendant 

had a full understanding of the nature and consequences of his plea such that 

he knowingly and intelligently entered the plea of his own accord. 

Commonwealth v. Rush, 909 A.2d 805, 808 (Pa.Super. 2006). 

Pennsylvania law presumes a defendant who entered a guilty plea was aware 

of what he was doing and the defendant bears the burden of proving 

otherwise. Commonwealth v. Pollard, 832 A.2d 517, 522-23 (Pa.Super. 

2003). 

Instantly, on July 8, 2021, Appellant executed a written guilty plea 

colloquy. In the written colloquy, Appellant acknowledged that he knew a 

judge would determine his sentence, and that he had not made an agreement 

with the Commonwealth regarding a specific sentence. (See Written Plea 

Colloquy, 7/8/21). Additionally, Appellant engaged in an oral colloquy with 

the court. During the oral colloquy,

[Appellant] was read the nature of the charges against him 

including the facts as presented by the prosecution, which 

[Appellant] affirmatively responded were accurate. Later 

during the colloquy, [Appellant] was informed of his right to 

a trial by jury where he would be tried with a presumption 

of innocence and was notified of the potential range of 
J-A07043-22

- 11 -

sentences. Additionally, [Appellant] openly stated at the

colloquy and agreed that the only promise that was made 

to him was that the Prosecution would offer [Appellant] a 

plea offer to a paraphernalia charge in a pending case. 

(Trial Court Opinion at 4) (internal citations omitted). Importantly, nothing in 

the written guilty plea colloquy or on the record during the oral colloquy 

reflected that Appellant attending in-patient rehabilitation was part of the plea 

deal.

Prior to sentencing, the court considered Appellant’s motion to withdraw 

his guilty plea. Appellant’s chief complaint was that he thought the court was 

going to let him attend in-patient rehabilitation as part of the plea deal, but 

the record belied that claim. Appellant then tried to assert his innocence, but

the court decided Appellant was making a bald assertion of innocence without 

offering a credible defense to the charges. (See N.T. Sentencing Hearing, 

8/26/21, at 18). Thus, the court concluded that it would not promote fairness 

or justice to allow Appellant to withdraw the guilty plea and denied the motion. 

(See id.). 

The record supports the trial court’s decision to deny Appellant’s motion 

to withdraw his plea. Under the totality of these circumstances, Appellant 

entered a knowing, voluntary, and intelligent guilty plea. See Rush, supra; 

Pollard, supra. Further, Appellant offered only a bare assertion of innocence, 

which failed to prove that “permitting withdrawal of the plea would promote 

fairness and justice.” See Norton, supra; Carrasquillo, supra. We see no 
J-A07043-22

- 12 -

abuse of discretion concerning the court’s decision to deny Appellant’s motion. 

See Gordy, supra.

Following our independent review of the record, we agree the appeal is 

frivolous. See Dempster, supra; Palm, supra. Accordingly, we affirm and 

grant counsel’s petition to withdraw. 

Judgment of sentence affirmed; counsel’s petition to withdraw is 

granted. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/22/2022