### J-S88005-16
NON

### -PRECEDENTIAL DECISION - SEE 

### SUPERIORCOURT 

### I.O.P. 

### 65.37 COMMONWEALTH OF PENNSYLVANIA,

1 IN THE SUPERIOR COURT OF PENNSYLVANIA

v. KENYA CLARKE, Appellee



### Appellant No. 503 EDA 2016 Appeal

### fromtheJudgment ofSentence of December 14, 2015 Inthe Court ofCommon Pleas 

### of Delaware County Criminal Division at No(s): CP-23-CR-

### 0004775-2015
BEFORE: OLSON, RANSOM AND STRASSBURGER,* JJ. MEMORANDUM BY OLSON, J.: 

### Filed

### January 17,

### 2017 Appellant, Kenya Clarke, appeals 

### from the 

### judgment of sentence entered on December 14, 2015, as made final by the denial 

### of Appellant's post-sentence motion on January 11, 2016. On 

### this direct appeal, 

### Appellant's court-appointed counsel has filed both a 

### petition to 

### withdraw as counsel and an accompanying 

### brief pursuant to 

### Anders v. 

### California, 386 U.S. 738 

### (1967) and 

### Commonwealth v. 

### Santiago, 978 A.2d 349 (Pa. 

### 2009). We conclude 

### that Appellant's counsel has complied 

### with the procedural 

### requirements necessary to 

### affect withdrawal. Moreover, 

### after independently reviewing the record, we conclude 

### that the 

### instant appeal is 

### wholly frivolous. We, 

### therefore, grant counsel's 

### petition to 

### withdraw and 

### affirmAppellant's

### judgment ofsentence. The

### trial court has ablysummarized the underlying factsofthis case:


### *Retired SeniorJudge assigned tothe Superior Court.

### J-S88005-16

On May 11, 2015, 

### [Appellant] was 

### arrested and 

### [the Commonwealth subsequently] charged 

### [him] 

### with[:] 1) receiving stolen 

### property; 2) possession 

### of a small 

### amount of 

### marijuana; 3) 

### criminal misconduct 

### /damaging property intentionally, recklessly or 

### negligently; 4) 

### disorderly conduct 

## - engaged in 

### fighting[;] 5) 

### disorderly conduct 

### [; 6)] firearms not to be carried 

### without a license; 

### [7)] [] possession of a 

### controlled substance

. . . ; 

### and[, 

### 8)] use

### /possession of drug 

### paraphernalia. The prosecution proceeded 

### with charges one and 

### two, while charges 

### three through 

### [eight] weredropped. On December 14, 2015, 

### [Appellant] entered into a negotiated 

### guilty plea to counts one and 

### two, to serve a 

### max[imum] sentence of 

### [23] months, with credit 

### for time served 

### from May 12, 2015 to 

### August 11, 2015. 

### Additionally, [Appellant] was sentenced to one 

### year of 

### probation to be served 

### consecutively, and per 

### count two, 

### [30] days of 

### probation to be served 

### concurrently. [Appellant] also agreed to undergo a drug and alcohol 

### evaluation and enroll in and successfully complete any recommended

### treatment...

. Trial CourtOpinion, 

### 7/18/16, at 1-2. On December 21, 2015,

### Appellantfiled a 

### motion to

### withdraw his 

### guilty plea. 

### Within Appellant's 

### motion,Appellant alleged 

### that"a medical 

### condition prevented him 

### from making a 

### knowing, 

### intelligent[,] and 

### voluntary plea." Appellant's Motion to

### Withdraw Guilty Plea, 

### 12/21/15, at 1. On January 11, 2016, the parties appeared before the 

### trial courtfor a hearing on 

### the motion. During the hearing, 

### Appellant testified 

### that he remembered pleading 

### guilty on December 14, 2015 and 

### that he was not



## -2

### J-S88005-16
taking any 

### medication

### that

### day.' N.T. Post-Trial Motion Hearing, 

### 1/11/16, at
5-6. Moreover, in regards to 

### whetherAppellant's failure to 

### take medication 

### that day affected his

### "condition,"2

### Appellant

### testified: My

### therapist said I should have been 

### taking it and I should have told the

### judge

### that I had 

### mental problems, but I 

### don't 

## - I've been living

### with this problem all my life and I 

### thought it was normal. I 

### don't

### think it's a 

### mental problem, but she said it is. 

### Id. at 6. 

### Appellant also 

### testified 

### that he 

### currently takes the prescription medication Prozac and 

### "another medicine

. . . 

### I'm not sure 

### what it's 

### called." 

### Id. at 10. Otherthan the above 

### testimony,Appellant presented no evidence 

### that
even touched upon 

### whether he suffered 

### from "a medical 

### condition 

### [that] prevented him 

### from making a 

### knowing, 

### intelligent[,] and 

### voluntary plea."3 

### ' The record is unclear as to 

### whether Appellant had a 

### prescription 

### for medication on the day he pleaded 

### guilty and 

### there is no evidence as to

### what 

### that prescription might have been.

2There is no evidence asto

### whatAppellant's

### "condition"might have been.

3 During the post

### -trial motion hearing, Appellant introduced, and the 

### trial courtadmitted, a 

### letter

### that was, 

### apparently, 

### written by a "Ms. Evans." The 

### letter was 

### admitted for the purpose 

### of

### "allow[ing the 

### letter]

. . . to speak 

### [to] the 

### testimony of Ms. Evans who would come and 

### testify to 

### this." N.T. Post-Trial Motion Hearing, 

### 1/11/16, at 3-4. The 

### letter was not read into evidence and it is not included in the certified record. As such, we consider the 

### letter "to be non

### -existent" on appeal. 

### Commonwealth v. 

### Kennedy, 868 A.2d 582, 593 (Pa. Super. 

### 2005), quoting 

### Eichman v. 

### McKeon, 824 A.2d 305, 316 (Pa. Super. 2003) (

### "this Court may not consideranything 

### that is not 

### partoftheofficial 

### certified record: 

### [a]nydocumentwhich is not 

### partof (Footnote ContinuedNextPage) 

## -3

### J-S88005-16
Appellant's Motion to 

### Withdraw Guilty Plea, 

### 12/21/15, at 1; 

### see N.T. Post- Trial Motion Hearing, 

### 1/11/16, at 1-11. The

### trial court denied 

### Appellant's motion to 

### withdraw his 

### guilty plea on January 11, 2016 and 

### Appellantfiled a 

### timely notice

### ofappeal to

### this Court. On appeal, 

### Appellant's court-appointed counsel filed a 

### petition for leave to 

### withdraw and accompanied 

### this petition with an 

### Anders brief. Counsel's

### Anders brief raises one 

### potential appellate claim: Was the

### trial court in 

### errorfor denying 

### [Appellant's] motion to 

### withdraw his 

### guilty plea when same was not 

### knowingly, 

### voluntarily[,] and 

### intelligently made? 

### Appellant's Briefat 4. Before reviewing the 

### merits of 

### this appeal, 

### this Court must 

### first determine whether appointed counsel has

### fulfilled the necessary procedural 

### requirements for withdrawing as counsel. 

### Commonwealth v. 

### Miller, 715 A.2d 1203, 1207 (Pa. Super. 1998). To 

### withdraw under 

### Anders, court-appointed counsel 

### must satisfy certain technical requirements. First, counsel 

### must 

### "petition the 

### court for leave to 

### withdraw stating 

### that, after making a conscientious 

### examination of the record, counsel has 

### determined 

### that the appeal would be 

### frivolous." 

### Miller, 715 A.2d at 1207. Second, counsel 

### must file an 

### Anders brief, in which counsel: (Footnote Continued) the official certified record is considered to be non

### -existent") 

### (internal quotationsomitted). 

## -4

### J-S88005-16
(1) 

### provide[s] a 

### summary of the procedural 

### history and facts,

### with citations tothe record; (2) 

### refer[s] to 

### anything in the record 

### that counsel believes 

### arguably supports the appeal; (3) 

### set[s] forth counsel's conclusion

### thatthe appeal is 

### frivolous; and 

### (4) 

### state[s] counsel's reasons 

### for concluding 

### that the appeal is 

### frivolous. Counsel should 

### articulate the 

### relevant facts of record, 

### controlling case law, and

### /orstatutes on 

### point

### that have led to the conclusion

### that the appeal is

### frivolous. 

### Santiago, 978A.2d at 361. Finally, counsel 

### must furnish a copy 

### of the

### Anders brief to his or her 

### client and advise the client 

### "of [the client's] right to 

### retain new counsel, proceed 

### pro se or raise any 

### additional points 

### worthy of this 

### Court's 

### attention." 

### Commonwealth v. 

### Woods, 939 A.2d 896, 898 (Pa. Super. 

### 2007). 

### If counsel meets all 

### of the above 

### obligations, 

### "it then becomes the 

### responsibility of the reviewing 

### court to make a full 

### examination of the proceedings and make an 

### independent 

### judgment to decide 

### whether the appeal is in

### factwholly

### frivolous." 

### Santiago, 978A.2d at 355 n.5. 

### It isonly when all of the procedural and 

### substantive requirements are satisfied 

### that counselwill be 

### permitted to

### withdraw. In the case at bar, counsel

### substantially complied 

### with all ofthe above procedural 

### obligations. We 

### must, 

### therefore, review the 

### entire record and analyze

### whetherthis appeal is, in

### fact, wholly frivolous.



## -5

### J-S88005-16

On appeal, 

### Appellant claims 

### that the 

### trial court erred in denying his post-sentence 

### motion to 

### withdraw his 

### guilty plea. 

### Appellant's claim on appeal is

### frivolous. This 

### Court has summarized the applicable standard of review and 

### substantive rules regarding an 

### order denying a post-sentence motion to 

### withdraw a 

### guilty plea: A 

### defendant who 

### attempts to 

### withdraw a 

### guilty plea 

### after sentencing 

### must demonstrate prejudice on the order of 

### manifest injustice before 

### withdrawal is

### justified. A showing of 

### manifest injustice may be established if the plea was entered into 

### involuntarily, unknowingly,or 

### unintelligently.
Pennsylvania has 

### constructed its 

### guilty plea procedures in a way designed to 

### guarantee assurance 

### that guilty pleas are 

### voluntarily and 

### understandingly tendered. The 

### entry of a 

### guilty plea is a 

### protracted and 

### comprehensive proceeding 

### wherein the 

### [trial] court is obliged to make a specific 

### determination 

### after extensive colloquy on the record 

### that a plea is

### voluntarilyand 

### understandinglytendered. Rule 590 

### of the Pennsylvania Rules 

### of Criminal Procedure requires 

### that a 

### guilty plea be offered in open 

### court, and provides a procedure to 

### determine whether the plea is 

### voluntarily, knowingly, and 

### intelligently entered. As noted in the Comment to Rule 590, at a 

### minimum the 

### trial court should ask

### questionsto 

### elicitthe following 

### information: (1) Does the defendant understand the nature of the charges to which he or she is pleading 

### guilty or no/o contendere? (2) Is 

### there a

### factual basis

### forthe plea? (3) Does the 

### defendant understand 

### that he or she has the 

### rightto 

### trial by

### jury?

## -6

### J-S88005-16
(4) Does the 

### defendant understand 

### that he or she is presumed innocent until found

### guilty? (5) Is the 

### defendant aware of the permissible range of sentencesand

### /orfines

### forthe offenses charged? (6) Is the 

### defendant aware 

### that the

### judge is not bound bythe

### terms ofany plea 

### agreementtendered unless the 

### judge accepts such 

### agreement? Pa.R.Crim.P. 590,Comment. This Court has

### furthersummarized: In 

### orderfor a 

### guilty plea to be 

### constitutionallyvalid, the 

### guilty plea 

### colloquy must 

### affirmatively show 

### that the defendant understood 

### what the plea connoted and its consequences. This 

### determination is to be made by 

### examining the 

### totality ofthe 

### circumstances surrounding the 

### entry of the plea. Thus, even 

### though there is an omission or 

### defect in the 

### guilty plea 

### colloquy, a plea of 

### guilty will not be deemed invalid if 

### the circumstances surrounding the 

### entry of the plea disclose 

### that the defendant had a full understanding of the 

### nature and consequences 

### of his plea and 

### that he 

### knowingly and 

### voluntarilydecided to 

### enterthe plea. Finally, we 

### applythefollowing whenaddressing an 

### appellate challengetothe

### validity of a 

### guilty plea: Our law presumes 

### that a 

### defendant who enters a 

### guilty plea was aware of 

### what he was doing. He bears the burdenofproving otherwise. The longstanding rule of Pennsylvania law is 

### that a 

### defendant may not challenge his 

### guilty plea by asserting 

### that he lied while under oath, even if he avers 

### that counsel induced the lies. A person who elects to plead 

### guilty is bound by the 

### statements he makes in open 

### courtwhile under oath and may not 

### later assertgrounds 

### forwithdrawing the plea which 

### contradictthe 

### statements he madeat his plea colloquy. 

## -7

### J-S88005-16

A 

### defendant who elects to plead 

### guilty has a 

### duty to answer questions 

### truthfully. We 

### [cannot] permit a 

### defendantto postponethe final disposition of his case by lying to the 

### court and 

### later alleging 

### that his lies were induced bythe prompting ofcounsel. 

### Commonwealth v. 

### Yeomans, 24 A.3d 1044, 1046

### -1047 (Pa. Super. 2011) 

### (internal corrections and 

### footnotes 

### omitted) (some 

### internal citations and 

### quotations

### omitted). In the case at bar, 

### Appellant sought to 

### withdraw his 

### guilty plea because, he claimed, he suffered 

### from "a medical 

### condition 

### [that] prevented him 

### from making a knowing, 

### intelligent[,] and 

### voluntary plea." Appellant's Motion to 

### Withdraw Guilty Plea, 

### 12/21/15, at 1. However, during the hearing on 

### Appellant's post-sentence 

### motion, Appellant introduced no evidence: 

### that he suffered 

### from an 

### identifiable medical 

### condition; 

### that his 

### "condition" affected his 

### ability to 

### enter a 

### knowing, 

### intelligent, and 

### voluntary plea; or, 

### that his

### "condition" affected him in any 

### manner whatsoever. Thus, 

### Appellantfailed to 

### satisfy his burden of 

### production, as 

### Appellantfailed to put 

### forth any evidence to show 

### that his plea was not knowing, 

### intelligent, and 

### voluntary. See

### Commonwealth v. 

### Bedell, 954 A.2d 1209, 1212

### -1213 (Pa. Super. 

### 2008) (

### "[o]nce a 

### defendant has entered a plea of 

### guilty, it is presumed 

### that he was aware 

### of 

### what he was doing, and the burden of proving 

### involuntariness is upon him

### "). Therefore, Appellant's claim 

### that "the trial court [erred in] denying 

### [his] motion to 

### withdraw his 

### guilty plea" is 

### frivolous.



## -8

### J-S88005-16

We have 

### independently considered the issue raised 

### within Appellant's brief and we have 

### determined 

### that the claim is 

### frivolous. In 

### addition, after
an 

### independent review of the entire record, we see nothing 

### that might arguably support this appeal. The appeal is 

### therefore wholly frivolous. Accordingly, we 

### affirm Appellant's

### judgment ofsentence and 

### grant counsel's 

### petition to

### withdraw appearance. Petition to 

### withdraw appearance 

### granted. Judgment of sentence 

### affirmed. Jurisdiction relinquished.
Judgment Entered.


## J:seph D. 

### Seletyn, Prothonotary

Date: 

### 1/17/2017



## -9