J-S04036-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MICHAEL JOSEPH LAWLER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1700 EDA 2019

Appeal from the Judgment of Sentence Entered January 24, 2019

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

No(s): CP-64-CR-0000220-2017

BEFORE: BENDER, P.J.E., STABILE, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.: FILED MARCH 27, 2020

Michael Joseph Lawler (Appellant) appeals from the judgment of 

sentence imposed after he pled guilty to three counts of criminal trespass, 18 

Pa.C.S.A. § 3503. Additionally, Appellant’s counsel (Counsel), seeks to 

withdraw from representation pursuant to Anders v. California, 386 U.S. 

738 (1967), and Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 

2009). Upon review, we grant Counsel’s petition to withdraw and affirm 

Appellant’s judgment of sentence.

On January 11, 2018, Appellant entered an open guilty plea to three 

counts of criminal trespass. On February 21, 2018, upon motion by the 

Commonwealth, the Department of Corrections (the Department) took 

Appellant into custody to determine his eligibility for a State Intermediate 

Punishment (SIP) program. On September 28, 2018, the Department 

determined that Appellant was ineligible for entry into SIP. On January 24, 
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2019, Appellant appeared for sentencing before the trial court. At sentencing, 

Appellant orally requested to withdraw his guilty plea based on the 

Department’s determination that he was ineligible for participation in an SIP 

program. The trial court denied Appellant’s request and sentenced him to 78 

to 188 months of incarceration, with credit for time served.

On March 26, 2019, Appellant, although still represented by counsel, 

filed an untimely pro se notice of appeal. Thereafter, Counsel filed a motion 

seeking to reinstate Appellant’s appeal rights nunc pro tunc, which the trial 

court granted on June 3, 2019. On June 11, 2019, Counsel filed a timely 

notice of appeal. On December 4, 2019, this Court dismissed Appellant’s pro 

se appeal as duplicative of Appellant’s counselled appeal. See

Commonwealth v. Lawler, 1130 EDA 2019. Both Appellant and the trial 

court complied with Pennsylvania Rule of Appellate Procedure 1925.

On December 5, 2019, Counsel filed an Anders brief, in which he argues

that Appellant’s appeal is frivolous and requests permission from this Court to 

withdraw as counsel. Appellant filed a pro se response to Counsel’s Anders

brief, seeking the appointment of new counsel or ordering Counsel’s continued 

representation on appeal; Appellant did not raise any additional claims. See 

Appellant’s Pro Se Response to Anders Brief, 12/17/19, at 2.

At the outset, we note there are particular mandates that counsel 

seeking to withdraw pursuant to Anders must follow. These mandates and 

the significant protection they provide to an Anders appellant arise because 

a criminal defendant has a constitutional right to a direct appeal and to counsel 
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on that appeal. Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 

2007). We have summarized the requirements as follows: 

Direct appeal counsel seeking to withdraw under Anders must file 

a petition averring that, after a conscientious examination of the 

record, counsel finds the appeal to be wholly frivolous. Counsel 

must also file an Anders brief setting forth issues that might 

arguably support the appeal along with any other issues necessary 

for the effective appellate presentation thereof.

Anders counsel must also provide a copy of the Anders petition 

and brief to the appellant, advising the appellant of the right to 

retain new counsel, proceed pro se or raise any additional points 

worthy of this Court’s attention.

If counsel does not fulfill the aforesaid technical requirements of 

Anders, this Court will deny the petition to withdraw and remand 

the case with appropriate instructions (e.g., directing counsel 

either to comply with Anders or file an advocate’s brief on 

Appellant’s behalf).

Id. (citations omitted).

Additionally, there are requirements as to the content of an Anders

brief:

[T]he Anders brief that accompanies court-appointed counsel’s 

petition to withdraw ... 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.

Santiago, 978 A.2d at 361. When faced with a purported Anders brief, we 

may not review the merits of the underlying issues without first deciding 

whether counsel has properly requested permission to withdraw. 
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Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa. Super. 2008) (citation 

omitted). If counsel has satisfied the above requirements, it is then this 

Court’s duty to conduct review of the trial court proceedings to determine 

whether there are any other non-frivolous issues that the appellant could raise 

on appeal. Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 

2018) (en banc). 

Instantly, we conclude that Counsel has complied with the requirements 

outlined above. Counsel filed a petition with this Court stating that after 

reviewing the record, he finds this appeal to be wholly frivolous. Motion for 

Leave to Withdraw as Counsel, 12/5/19, at ¶ 3. In conformance with 

Santiago, Counsel’s brief includes summaries of the facts and procedural 

history of the case, and discusses the issues he believes might arguably 

support Appellant’s appeal. See Anders Brief at 6-8, 11-16. Counsel’s brief 

sets forth his conclusion that the appeal is frivolous and includes citation to 

relevant authority. Id. Finally, Counsel has attached to his petition to 

withdraw the letter that he sent to Appellant, which enclosed Counsel’s 

petition and Anders brief. Motion for Leave to Withdraw as Counsel, 12/5/19, 

Ex. A. Counsel’s letter advised Appellant of his right to proceed pro se or with 

private counsel and to raise any additional issues that he deems worthy of this 

Court’s consideration. Id. We thus proceed to review the merits of the claims 

raised.

Counsel’s Anders brief raises four issues for our review (reordered for 

ease of discussion):
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1. Did the trial court err in denying Appellant’s Motion to Withdraw 

Guilty Plea?

2. Did the trial court err in ordering an excessive sentence, given 

the background of the Appellant in this matter?

3. Did the trial court err in failing to find the Department of 

Corrections wrongfully denied the Appellant’s entry into the 

State Intermediate Punishment Program?

4. Did the trial court err in failing to dismiss the case based upon 

the Department of Corrections’ determination of entry into the 

State Intermediate Punishment Program not being completed 

within prescribed time limits?

Anders Brief at 5 (suggested answers omitted).

In his first issue, Appellant challenges the trial court’s denial of his presentence motion to withdraw guilty plea. We review a trial court’s ruling on a 

pre-sentence motion to withdraw a guilty plea for an abuse of discretion. 

Commonwealth v. Islas, 156 A.3d 1185, 1187 (Pa. Super. 2017).

Pre-sentence withdrawal of a guilty plea is governed by Pennsylvania 

Rule of Criminal Procedure 591(A), which states:

(A) 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.

Pa.R.Crim.P. 591(A). The official comment to Rule 591 provides that “[a]fter 

the attorney for the Commonwealth has had an opportunity to respond, a 

request to withdraw a plea made before sentencing should be liberally 

allowed.” Id., Cmt.

[I]n determining whether to grant a pre-sentence motion for 

withdrawal of a guilty plea, the test to be applied by the trial courts 
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is fairness and justice. If the trial court finds “any fair and just 

reason,” withdrawal of the plea before sentence should be freely 

permitted, unless the prosecution has been “substantially 

prejudiced.”

Commonwealth v. Forbes, 299 A.2d 268, 271 (Pa. 1973) (citations 

omitted).

In Commonwealth v. Carrasquillo, 115 A.3d 1284 (Pa. 2015), our 

Supreme Court provided additional guidance as to the proper exercise of a 

court’s discretion in ruling on pre-sentence motions to withdraw a plea. While 

reaffirming the “liberal allowance” standard, the Court acknowledged that its 

previous application of that standard had “lent the [false] impression that 

[the] Court had required acceptance of a bare assertion of innocence as a fairand-just-reason” for withdrawal and led to a “legitimate perception of a per 

se rule” arising from the Court’s prior decisions. Id. at 1292. In clarifying

the standard, the Carrasquillo Court held that “a bare assertion of innocence 

is not, in and of itself, a sufficient reason to require a court to grant” a presentence motion to withdraw. Id. at 1285. Rather, the Court concluded:

[A] defendant’s innocence claim must be at least plausible to 

demonstrate, in and of itself, a fair and just reason for 

presentence withdrawal of a plea. More broadly, the 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. The policy of liberality remains 

extant but has its limits, consistent with the affordance of a degree 

of discretion to the common pleas courts.

Id. at 1292. The Carrasquillo Court established that trial courts possess 

discretion to assess the plausibility of a defendant’s claim of innocence; in 
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doing so, “both the timing and the nature of the innocence claim, along with 

the relationship of that claim to the strength of the government’s evidence, 

are relevant.” See Islas, 156 A.3d at 1191.

Consistent with the well-established standards governing trial 

court discretion, it is important that appellate courts honor trial 

courts’ discretion in these 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, 201 A.3d 112, 121 (Pa. 2019).

Instantly, Appellant expressed his desire to withdraw his plea as follows:

. . . I wish to withdraw my plea because I’m looking for the chance 

to help myself, not, I don’t even know how to say it. I want to do 

better in life, Your Honor. I don’t want to sit here for the next ten 

years of my life incarcerated and get out and be a violent felon 

and I have learned absolutely nothing because they don’t offer the 

type of programs that you need to rehabilitate yourself. The 

[State Intermediate Punishment (SIP)] was the only chance that 

I had for rehabilitation purposes and that’s why I took the plea

that I did was for the S.I.P. Program so I could better myself and 

perhaps be an asset to the community instead of being a liability 

and it just didn’t work out that way, Your Honor.

N.T., 1/24/19, at 5. 

In denying Appellant’s request, the trial court specifically found that 

Appellant did not offer a fair and just reason for withdrawal of his plea. Rather, 

the trial court noted that Appellant “stated on the record that his reasons for 

wishing to withdraw his guilty plea were to ‘do better in life,’ and that the state 

correctional institutions ‘do not offer programs to rehabilitate,’ and that he 

‘took the plea for SIP.’” Trial Court Opinion, 7/17/19, at 5. Appellant made 
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no assertion of innocence and did not contend that his guilty plea was 

unknowing, involuntary, or unintelligent. Thus, the trial court denied relief.

Based upon our review of the certified record, we agree with the trial 

court’s determination that Appellant’s reasons for wanting to withdraw his 

guilty plea did not satisfy the standard articulated in Carrasquillo.

Appellant’s desire to withdraw his guilty plea because he was denied 

admittance into an SIP program does not constitute a fair and just reason for 

withdrawal. Accordingly, the trial court did not abuse its discretion.

In his second issue, Appellant challenges the discretionary aspects of 

his sentence. “The right to appellate review of the discretionary aspects of a 

sentence is not absolute, and must be considered a petition for permission to 

appeal.” Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 

2014). “An appellant must satisfy a four-part test to invoke this Court’s 

jurisdiction when challenging the discretionary aspects of a sentence.” Id. 

We conduct this four-part test to determine whether:

(1) the appellant preserved the issue either by raising it at the 

time of sentencing or in a post[-]sentence motion; (2) the 

appellant filed a timely notice of appeal; (3) the appellant set forth 

a concise statement of reasons relied upon for the allowance of 

appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises 

a substantial question for our review. 

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation 

omitted). “A defendant presents a substantial question when he sets forth a 

plausible argument that the sentence violates a provision of the sentencing 

code or is contrary to the fundamental norms of the sentencing process.” 
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Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013) (citations 

omitted).

Our review reveals that Appellant failed to raise his discretionary 

sentencing issue in a post-sentence motion or at sentencing. Accordingly, 

Appellant’s objection to the discretionary aspects of his sentence is waived. 

Commonwealth v. Kittrell, 19 A.3d 532, 538 (Pa. Super. 2011) (failure to 

raise discretionary aspects of sentence claim in post-sentence motion or by 

presenting the claim during sentencing proceedings is waived). 

In his third issue, Appellant asserts that he was wrongfully denied 

admittance into the State Intermediate Punishment program.

1

 Appellant was 

denied Appellant admittance into the SIP program due to an outstanding 

warrant from a magisterial district judge; however, Appellant avers that his 

guilty plea made him an eligible offender, see 61 Pa.C.S.A. § 4103, and thus 

the Department erred in denying his participation. 

The SIP Drug Offender Treatment Program (DOTP) is a two-year 

program designed to rehabilitate inmates convicted of drug-related offenses, 

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1 “State intermediate punishment” is a statutorily authorized sentencing 

alternative. 42 Pa.C.S.A. § 9721(a)(7). The General Assembly has directed 

the Department to “establish and administer a drug offender treatment 

program as a State intermediate punishment.” 61 Pa.C.S.A. § 4105(a). The 

Department established its Drug Offender Treatment Program (DOTP) by

regulation as a form of State Intermediate Punishment to provide a sentencing 

alternative for individuals who commit drug-related offenses. 61 Pa. Code § 

97.101. 
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who have an addiction to drugs or alcohol. 61 Pa.C.S.A. §§ 4102-4108. The 

program addresses “the individually assessed drug and alcohol abuse and 

addiction needs of a participant” and “other issues essential to the 

participant’s successful reintegration into the community.” 61 Pa.C.S.A. § 

4105(a). An individual is eligible for State Intermediate Punishment if he or 

she has been convicted of a drug-related offense,

2 and:

(1) Has undergone an assessment performed by the Department 

of Corrections, which assessment has concluded that the 

defendant is in need of drug and alcohol addiction treatment and 

would benefit from commitment to a drug offender treatment 

program3 and that placement in a drug offender treatment 

program would be appropriate.

(2) Does not demonstrate a history of present or past violent 

behavior.

(3) Would be placed in the custody of the department if not 

sentenced to State intermediate punishment.

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2 A “drug-related offense” is “[a] criminal offense for which a defendant is 

convicted and that the court determines was motivated by the defendant’s 

consumption of or addiction to alcohol or a controlled substance, counterfeit, 

designer drug, drug, immediate precursor or marijuana, as those terms are 

defined in the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled 

Substance, Drug, Device and Cosmetic Act.” 61 Pa.C.S.A. § 4103. Here, 

Appellant broke into cabins across northern Wayne County and stole $35,000 

in goods. Appellant testified that he sold the goods and “purchased around 

$500 for food, and the remaining amount went towards buying 

Methamphetamine and Heroin.” N.T., 1/24/19, at 8. The trial court 

determined that “the addiction is what drives [Appellant] to commit crimes.” 

Id.

3 “Drug offender treatment program” (DOTP) is “[a]n individualized treatment 

program established by the Department consisting primarily of drug and 

alcohol addiction treatment that satisfies the terms and conditions in section 

9905 of the act [at 42 Pa.C.S.A. Chapter 99] (relating to drug offender 

treatment program).” 37 Pa. Code § 97.102.
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(4) Provides written consent permitting release of information 

pertaining to the defendant's participation in a drug offender 

treatment program.

61 Pa.C.S.A. § 4103 (emphasis added). A defendant is ineligible for State 

Intermediate Punishment if he or she is subject to a sentence which includes 

an enhancement for use of a deadly weapon; has been convicted or 

adjudicated delinquent of a crime requiring registration as a sexual offender; 

or has a current or prior conviction for specified offenses, none of which are 

applicable to Appellant. 61 Pa.C.S.A. § 4103.

Placement in State Intermediate Punishment requires several steps. 

First, the sentencing court must determine whether an individual qualifies for 

placement. If so, the sentencing court refers the matter for an evaluation by 

the Department. 61 Pa.C.S.A. § 4104(a)(1). Second, “[t]he Department will 

conduct a risk assessment and assess the addiction and other treatment needs 

of” the individual. 37 Pa. Code § 97.104(a). The Department, in its 

evaluation, considers the following criteria:

(1) Information furnished to the Department by the sentencing 

court.4

(2) The results of the assessment of addiction and other treatment 

needs conducted by the Department.

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4 The sentencing court provides the Department with a summary of the 

criminal defendant’s offense; information relating to the criminal defendant’s 

history of criminality and drug or alcohol abuse or addiction; the presentence 

investigation report; and any other information the sentencing court believes 

is relevant. 61 Pa.C.S.A. § 4104(a)(2).
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(3) The length of the sentence that would be typically imposed 

under the standard range of the sentencing guidelines 

promulgated by the Pennsylvania Commission on Sentencing.

(4) The eligible offender’s motivation to participate meaningfully 

in a DOTP.

(5) Whether the eligible offender has provided to the Department 

written consent permitting the release of information pertaining 

to the eligible offender's participation in a DOTP.

(6) The eligible offender’s criminal history.

(7) The eligible offender’s escape or parole absconder history.

(8) The eligible offender’s institutional adjustment during current 

and prior incarcerations.

(9) The availability of the Department’s programming resources.

37 Pa. Code § 97.106(a). Where the Department, “in its discretion,” believes 

the criminal defendant’s placement in these programs is appropriate, it 

prepares a drug treatment program plan for the individual and provides it to 

the sentencing court. 61 Pa.C.S.A. § 4104(c); 37 Pa. Code § 97.104(b). Upon 

receipt of a drug treatment program plan, the court may sentence an 

individual to State Intermediate Punishment. 61 Pa.C.S.A. § 4104(d). Where 

the Department determines that the criminal defendant will not benefit from 

a drug treatment program or that placement in a drug treatment program is 

not appropriate, it provides a report setting forth the reasons for its 

determination to the sentencing court. 37 Pa. Code § 97.104(b).

Whether an individual would benefit from a drug offender treatment 

program and whether his or her placement in a drug treatment plan would be 
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appropriate are matters committed to the Department’s discretion. Section 

4104(c) of the Prisons and Parole Code states:

If the department in its discretion believes a defendant would 

benefit from a drug offender treatment program and placement in 

the drug offender treatment program is appropriate, the 

department shall provide the court, the defendant, the attorney 

for the Commonwealth and the commission with a proposed drug 

offender treatment program detailing the type of treatment 

proposed.

61 Pa.C.S.A. § 4104(c) (emphasis added). Likewise, the statute does not 

“[c]onfer any legal right upon any individual ... to ... participate in a drug 

offender treatment program[.]” 61 Pa.C.S.A. § 4108(1)(i); see also 37 Pa. 

Code § 97.106(b) (“An eligible offender does not have a right to placement in 

a DOTP.”).

As outlined above, Appellant does not have a statutory right to 

participation in an SIP program. See 61 Pa.C.S.A. § 4108(1)(i); 37 Pa. Code 

§ 97.106(b). The Department possesses the discretion to admit an inmate, 

regardless of their eligibility and offender status. Accordingly, the Department 

did not abuse its discretion in denying Appellant admission into an SIP 

program based on an outstanding warrant from a magisterial district judge. 

In his fourth and final issue, Appellant challenges the Department’s 

failure to provide the trial court with its assessment report within 60 days of 

Appellant’s commitment to the Department, as prescribed by statute. See 37 

Pa. Code § 97.104 (b) (“The Department will provide a report of its 

assessment to the court, the defendant, the attorney for the Commonwealth 
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and the Sentencing Commission within 60 days of the commitment of the 

defendant to the Department for purposes of evaluation.”). “Appellant 

believes that his case should have been dismissed due to the failure of [the 

Department] to render a report within 60 days of his commitment to the state 

system.” Anders Brief at 15. 

Appellant fails to cite any authority, and our research does not reveal 

any authority, to support a dismissal of charges when the Department fails to 

provide a report of its assessment within the statutorily defined 60 days. 

While we do not condone the delay, Chapter 97 does not provide for a remedy. 

See Benson ex rel. Patterson v. Patterson, 830 A.2d 966, 968 (Pa. 2003) 

(“[I]t is not the role of the judiciary to legislate changes the legislature has 

declined to adopt.”). Appellant’s fourth issue is without merit.

Finally, our independent review reveals no other non-frivolous issues 

that Appellant could raise on appeal. See Dempster, 187 A.3d at 272. We 

therefore grant Counsel’s petition to withdraw and affirm Appellant’s judgment 

of sentence.

Petition to withdraw granted. Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/27/2020