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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

RUSSELL DABNEY, : No. 393 EDA 2019

:

 Appellant :

Appeal from the Judgment of Sentence Entered December 10, 2018,

in the Court of Common Pleas of Delaware County

Criminal Division at No. CP-23-CR-0001894-2018

BEFORE: BENDER, P.J.E., LAZARUS, J., AND FORD ELLIOTT, P.J.E. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 11, 2019

Russell Dabney appeals from the December 10, 2018 judgment of 

sentence entered in the Court of Common Pleas of Delaware County after he 

entered a negotiated guilty plea to one count each of receiving stolen property,

possession of drug paraphernalia, and aggravated harassment by a prisoner.1 

The trial court imposed an aggregate sentence of 15 to 30 months of 

incarceration, followed by one year of probation. Douglas L. Smith, Esq., has 

filed an Anders brief,2 with an accompanying petition, alleging that the appeal 

 

1 18 Pa.C.S.A. §§ 3925(a), 35 P.S. § 780-113(a)(32), and 18 Pa.C.S.A. 

§ 2703.1, respectively.

2 See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. 

Santiago, 978 A.2d 349 (Pa. 2009); Commonwealth v. McClendon, 434 

A.2d 1185 (Pa. 1981).
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is frivolous. After careful review, we grant counsel’s petition to withdraw and 

affirm the judgment of sentence.

The trial court set forth the following:

The incident that gave rise to [appellant’s] conviction 

took place on January 24, 2018. While driving a stolen 

motor vehicle[, appellant] led Darby Borough police 

officers on a lengthy vehicle chase. After [appellant] 

brought the stolen vehicle to a stop he fled on foot. 

He was eventually taken into custody and a stolen 

IPhone and drug paraphernalia were found in his 

possession. [Appellant] resisted arrest. At police 

headquarters EMS personnel from the Darby Fire 

Company were called to evaluate [appellant’s] 

condition. [Appellant] berated police officers, 

screamed obscenities and spit on an officer more than 

once. Eventually he was transported to Mercy

Fitzgerald Hospital where he was treated for injuries 

that he sustained during the course of the foregoing 

incident.[Footnote 1]

[Footnote 1] The parties stipulated that 

the facts set forth in the Affidavit of 

Probable Cause constituted a sufficient 

factual basis for the plea.

[Appellant] pled guilty to [the aforementioned crimes 

and the trial court imposed the aforementioned 

sentence.] A motion to withdraw the guilty plea was 

filed post-sentence. The post-sentence motion was 

denied on January 9, 2019 and a timely Notice of 

Appeal was filed[].

In response to an Order directing [appellant] to file a 

Concise Statement of Errors Complained of on Appeal 

[pursuant to Pa.R.A.P. 1925(b),] appellate counsel 

has stated his intention to file an Anders brief with 

the Superior Court.

Trial court opinion, 2/25/19 at 1-2 (additional footnotes omitted).
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The trial court then filed a Rule 1925(a) opinion wherein it concluded 

that following a review of the record and counsel’s statement of intention to 

file an Anders brief, “further exposition regarding [appellant’s] conviction and 

the sentence imposed is unnecessary.” (Id. at 2.)

To withdraw under Anders, court-appointed counsel must satisfy 

certain technical requirements. First, counsel must “petition the court for 

leave to withdraw and state that after making a conscientious examination of 

the record, he has determined that the appeal is frivolous.” Commonwealth 

v. Martuscelli, 54 A.3d 940, 947 (Pa.Super. 2012), quoting Santiago, 978 

A.2d at 361. Second, counsel must file an Anders brief, in which counsel:

(1) provide[s] a summary of the procedural history 

and facts, with citations to the record; (2) refer[s] to 

anything in the record that counsel believes arguably 

supports the appeal; (3) set[s] forth counsel’s 

conclusion that the 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/or 

statutes on point that have led to the conclusion that 

the appeal is frivolous.

Santiago, 978 A.2d at 361. With respect to the briefing requirements, 

“[n]either Anders nor McClendon requires 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.” 

Santiago, 978 A.2d at 359, 360. Finally, counsel must furnish a copy of the 

Anders brief to his client and “advise[] him of his right to retain new counsel, 
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proceed pro se or raise any additional points that he deems worthy of the 

court’s attention, and attach[] to the Anders petition a copy of the letter sent 

to the client.” Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa.Super. 

2010) (citation omitted). “[If] counsel has satisfied the above requirements, 

it is then this Court’s duty to conduct its own review of the trial court’s 

proceedings and render an independent judgment as to whether the appeal 

is, in fact, wholly frivolous.” Commonwealth v. Goodwin, 928 A.2d 287, 

291 (Pa.Super. 2007) (en banc) (quotation marks and quotation omitted).

Our review of Attorney Smith’s petition to withdraw, supporting 

documentation, and Anders brief reveals that he has substantially complied 

with all of the foregoing requirements. We note that counsel also furnished a 

copy of the brief to appellant, advised him of his right to retain new counsel, 

proceed pro se, and/or raise any additional points that he deems worthy of 

this court’s attention,3 and attached to his petition to withdraw a copy of the 

letter he sent to appellant as required under Commonwealth v. Millisock, 

873 A.2d 748, 751 (Pa.Super. 2005). See Daniels, 999 A.2d at 594 (holding 

that “[w]hile the Supreme Court in Santiago set forth the new requirements 

for an Anders brief, which are quoted above, the holding did not abrogate the 

notice requirements set forth in Millisock that remain binding legal 

precedent.”). As Attorney Smith has complied with all of the requirements set 

forth above, we conclude that counsel has satisfied the procedural 

 

3 Appellant did not file a response.
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requirements of Anders. We, therefore, proceed to conduct an independent 

review to ascertain whether the appeal is indeed wholly frivolous.

Attorney Smith raises the following issues in the Anders brief:4

[1.] Whether [appellant] entered a plea of guilty that 

was a knowing, voluntary and intelligent plea of 

guilty?

[2.] Whether the aggregate sentence of 15-30 

months [of] incarceration followed by 1 year 

[of] consecutive probation imposed on 

[appellant] is harsh and excessive under the 

circumstances?

Anders brief at 3 (full italics omitted).

In considering the validity of a guilty plea colloquy, “[t]he Pennsylvania 

Rules of Criminal Procedure mandate pleas be taken in open court and require 

the court to conduct an on-the-record colloquy to ascertain whether a 

defendant is aware of his rights and the consequences of his plea.” 

Commonwealth v. Prendes, 97 A.3d 337, 352 (Pa.Super. 2014) (citations 

omitted), appeal denied, 105 A.3d 736 (Pa. 2014). Pursuant to Rule 590, 

the sentencing court should inquire whether the defendant understands, 

among other things, “the nature of the charges to which he or she is pleading 

guilty[,]” and “the permissible range of sentences and/or fines” possible. 

Pa.R.Crim.P. 590, Comment. “[N]othing in the rule precludes the 

supplementation of the oral colloquy by a written colloquy that is read, 

completed, and signed by the defendant and made a part of the plea 

 

4 We have reordered appellant’s issues for ease of disposition.
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proceedings.” Commonwealth v. Bedell, 954 A.2d 1209, 1212-1213 

(Pa.Super. 2008) (citation omitted), appeal denied, 964 A.2d 893 (Pa. 

2009).

Thereafter,

[t]he reviewing Court will evaluate the adequacy of 

the plea colloquy and the voluntariness of the 

resulting plea by examining the totality of the 

circumstances surrounding the entry of that plea. 

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.

Prendes, 97 A.3d at 352 (citations omitted). Accordingly, even if there is an 

omission in the oral 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 voluntarily decided to enter the plea.” 

Commonwealth v. Yeomans, 24 A.3d 1044, 1047 (Pa.Super. 2011) 

(citation omitted).

Additionally, “a defendant is bound by the statements which he makes 

during his plea colloquy.” Commonwealth v. Barnes, 687 A.2d 1163, 1167 

(Pa. 1997) (citations omitted). As such, a defendant “may not assert grounds 

for withdrawing the plea that contradict statements made when he pled 

guilty,” and he cannot recant the representations he made in court when he 

entered his guilty plea. Id. (citation omitted). Moreover, the law does not 

require that a defendant be pleased with the outcome of his decision to plead 
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guilty. The law only requires that a defendant’s decision to plead guilty be 

made knowingly, voluntarily, and intelligently. See Commonwealth v. 

Moser, 921 A.2d 526, 528-529 (Pa.Super. 2007).

Here, the record reflects that appellant read, completed, and signed a

thorough written guilty plea colloquy form, which is part of the certified record. 

(Written guilty plea statement, 12/10/18.) On that form, appellant affirmed, 

in writing, among other things, (i) that he understood the charges filed against 

him and the maximum sentences that could be imposed for those crimes; 

(ii) that he fully discussed the charges and possible defenses with his 

attorney; (iii) that he was fully satisfied with his attorney’s representation and 

advice; (iv) that his decision to plead guilty was his own decision; (v) that 

no one used any pressure, force, or threats against him to induce him to plead 

guilty; (vi) that no promises were made to induce his guilty plea; (vii) that he 

committed the crimes to which he pled guilty; and (viii) that he had enough 

time to fully discuss his case and decision to plead guilty with his lawyer and 

that he understood and agreed with everything contained in the guilty plea 

statement.

5

 (Id.)

The record further reflects that the trial court conducted an oral guilty 

plea colloquy. (Notes of testimony, 12/10/18.) Appellant acknowledged that

he was given sufficient time and opportunity to review the guilty plea 

 

5 We note that appellant also executed a statement of post-sentence rights. 

(Appellant’s statement of post-sentence rights, 12/10/18.)
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statement. (Id. at 9.) Appellant further acknowledged that he understood 

everything in the guilty plea statement, that he initialed the 29 subparagraphs 

contained in the statement, and that he executed the statement. (Id.) 

Appellant affirmed that no one forced or pressured him to accept the plea 

agreement. (Id. at 10.) Appellant also affirmed that he was not under the 

influence of drugs, alcohol, or any substance that would prevent him from 

understanding the terms of the plea agreement. (Id.) Appellant 

acknowledged that he understood the Commonwealth’s burden of proof but 

desired to give up his right to trial and enter a guilty plea. (Id.) Appellant 

declined the opportunity to ask his attorney any additional questions prior to 

entering his guilty plea. (Id.)

After thoroughly reviewing the record, we conclude that the totality of 

the circumstances surrounding appellant’s entry of his negotiated guilty plea

discloses that appellant fully understood the nature and consequences of his 

plea and that he knowingly and voluntarily decided to enter the plea.

Appellant next challenges the discretionary aspects of his sentence. 

Challenges to the discretionary aspects of sentencing 

do not entitle an appellant to review as of right. 

Commonwealth v. Sierra, [752 A.2d 910, 912 

(Pa.Super. 2000)]. An appellant challenging the 

discretionary aspects of his sentence must invoke this 

Court’s jurisdiction by satisfying a four-part test:

[W]e 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 
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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. Moury, 992 A.2d 162, 170 (Pa.Super. 2010) (citation 

omitted; brackets in original).

Here, appellant filed a timely notice of appeal and included a 

Pa.R.A.P. 2119(f) statement in his brief. In his post-sentence motion, 

appellant only challenged the validity of his plea. (Appellant’s motion 

challenging validity of guilty plea, 12/17/18.) On appeal, however, appellant 

claims his sentence is harsh and excessive. (Appellant’s brief at 5-6.) 

Because appellant did not give the trial court the opportunity to reconsider or 

modify his sentence on the basis that the sentence was harsh and excessive, 

appellant failed to properly preserve this specific discretionary sentencing 

challenge for appeal. See Commonwealth v. Mann, 820 A.2d 788 

(Pa.Super. 2003) (stating issues that challenge discretionary aspects of 

sentencing are generally waived if they are not raised during sentencing 

proceedings or in post-sentence motion); accord Commonwealth v. 

Lamonda, 52 A.3d 365, 371 (Pa.Super. 2012). See also Commonwealth 

v. Reeves, 778 A.2d 691, 692-693 (Pa.Super. 2001) (finding waiver where 

appellant “did not give the sentencing judge an opportunity to reconsider or 

modify sentence” on any of the bases that appellant currently argues on 
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appeal); Pa.R.A.P. 302(a) (“[i]ssues not raised in the lower court are waived 

and cannot be raised for the first time on appeal”).

Nevertheless, we will address this challenge because appointed counsel 

has filed an Anders brief and a petition to withdraw. See Commonwealth 

v. Lilley, 978 A.2d 995, 998 (Pa.Super. 2009) (addressing the appellant’s 

discretionary sentencing challenge in light of counsel’s petition to withdraw, 

despite the fact that his Pa.R.A.P. 2119(f) statement failed to cite what 

particular provision of the Sentencing Code or what specific fundamental norm 

the appellant’s sentence allegedly violated), citing Commonwealth v. 

Hernandez, 783 A.2d 784, 787 (Pa.Super. 2001) (concluding that Anders

requires review of issues otherwise waived on appeal).

Here, the issue presented in the Anders brief is that appellant’s 

sentence is harsh and excessive. (Appellant’s brief at 5-6.) It is well settled, 

however, that upon entry of a negotiated plea, “a defendant generally waives 

all defects and defenses except those concerning the validity of the plea, the 

jurisdiction of the trial court, and the legality of the sentence imposed.”

Commonwealth v. Boyd, 835 A.2d 812, 816 (Pa.Super. 2003) (citation and 

quotation omitted). “One who pleads guilty and receives a negotiated 

sentence may not then seek discretionary review of that sentence.”

Commonwealth v. O’Malley, 957 A.2d 1265, 1267 (Pa.Super. 2008) 

(citation omitted). Because appellant entered a guilty plea and received a 

negotiated sentence, he may not seek discretionary review of that sentence.
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We conclude that the record supports Attorney Smith’s assessment that 

appellant’s appeal is wholly frivolous. Moreover, our independent review of 

the entire record reveals no additional non-frivolous claims. Therefore, we 

grant counsel’s petition to withdraw and affirm appellant’s December 10, 2018 

judgment of sentence.

Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/11/19