J-S20034-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

QUINCY MICHAEL PATRICK 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 1725 MDA 2017

Appeal from the Judgment of Sentence August 21, 2017

In the Court of Common Pleas of Luzerne County

Criminal Division at No(s): CP-40-CR-0000765-2016

BEFORE: GANTMAN, P.J., OTT, J., and KUNSELMAN, J.

MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 15, 2018

Appellant, Quincy Michael Patrick, appeals from the judgment of 

sentence entered in the Luzerne County Court of Common Pleas, following his 

open guilty plea to possession with intent to deliver (“PWID”).1 We affirm. 

The relevant facts and procedural history of this case are as follows. 

After [a hearing] and a colloquy of [Appellant] to ascertain 

the voluntariness of his plea, [the court] accepted his plea 

to count one of the Information, PWID, on June 29, 2017. 

A presentence investigation (“PSI”) was ordered to be 

completed by the Luzerne County Adult Probation and 

Parole Department prior to sentencing.

[Appellant] was sentenced following [a hearing] on August 

21, 2017. At said hearing, upon review of the PSI and the 

presentations of counsel, [the court] determined that a 

standard range sentence was appropriate. [The court] then 

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1 35 P.S. § 780-113(a)(30). 
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sentenced [Appellant] to a minimum of nineteen (19) 

[months’] to a maximum of forty (40) [months’] 

incarceration to be served in a state correctional 

institution.[2] [Appellant] was given credit for serving four 

hundred and twenty-two (422) days of incarceration prior 

to sentencing. 

On August 29, 2017, [Appellant] filed Post Sentence Motions 

which were denied by Order of Court on October 10, 2017. 

[Appellant] filed a timely Notice of Appeal on November 6, 

2017. Thereafter, on November 8, 2017, [the court] 

ordered [Appellant] to file a Concise Statement of Errors 

Complained of on Appeal pursuant to Pa.R.A.P. 1925(b) and 

requested the Commonwealth respond thereto. 

[Appellant’s] Concise Statement of [Errors] Complained of 

on Appeal pursuant to Pa.R.A.P. 1925(b)[3] was filed and 

received by the [c]ourt on November 21, 2017. In said 

document, [Attorney Amanda Young] indicated that there 

are no non-frivolous issues which can be raised on appeal 

and further indicated her intent to file an Anders Brief with 

[this Court]. 

(Trial Court Opinion, filed December 14, 2017, at 1-2) (internal citations and 

footnotes omitted). On November 27, 2017, Attorney John Sobota entered 

his appearance on behalf of Appellant and Attorney Young withdrew her 

representation. On February 2, 2018, Attorney Robert Buttner replaced 

Attorney Sobota as appellate counsel and filed an Anders brief and an 

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2 With an offense gravity score (“OGS”) of six (6) and a prior record score 

(“PRS”) of four (4), the standard minimum sentence range for Appellant’s 

PWID conviction was fifteen (15) to twenty-one (21) months’ imprisonment. 

204 Pa.Code § 303.16(a). 

3 Counsel called this document a Rule 1925(b) statement, but the substance 

of the document demonstrates counsel filed a statement of intent to file an 

Anders brief pursuant to Pa.R.A.P. 1925(c)(4). 
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application to withdraw as counsel in this Court. Appellant filed pro se a 

supplemental brief in response to counsel’s Anders Brief. 

As a preliminary matter, appellate counsel seeks to withdraw his

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). “After establishing that the antecedent requirements have been met, 

this Court must then make an independent evaluation of the record to 

determine whether the appeal is, in fact, wholly frivolous.” Commonwealth 

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

v. Townsend, 693 A.2d 980, 982 (Pa.Super. 1997)). See also 

Commonwealth v. Dempster, 2018 PA Super 121 (filed May 8, 2018) (en 

banc). 

In Santiago, supra, our Supreme Court addressed the briefing 
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requirements, where court-appointed appellate counsel seeks to withdraw 

representation: 

Neither Anders nor McClendon[4]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. 

* * *

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. 

Instantly, appellate counsel filed a petition for leave to withdraw. The 

petition states counsel performed a conscientious review of the record and 

concluded the appeal is wholly frivolous. Counsel also supplied Appellant with 

a copy of the withdrawal petition, the brief, and a letter explaining Appellant’s 

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4 Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981). 
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right to proceed pro se or with new privately-retained counsel to raise any 

additional points Appellant deems worthy of this Court’s attention. In his 

Anders brief, counsel provides a summary of the facts and procedural history 

of the case. Counsel refers to facts in the record that might arguably support 

the issues raised on appeal and offers citations to relevant law. The brief also 

provides counsel’s reasons for concluding that the appeal is frivolous. Thus, 

counsel has substantially complied with the requirements of Anders and 

Santiago.

In addition to counsel’s Anders brief, Appellant has filed a pro se brief 

with this Court. In general, when examining most non-Anders cases, this 

Court will not review pro se briefs filed by appellants who have had the benefit 

of appellate counsel. Commonwealth v. Nischan, 928 A.2d 349, 353 

(Pa.Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007). 

However, Anders specifically contemplates that, after 

counsel files the Anders brief, an appellant may file a pro se

brief. Indeed, ...part of counsel’s duty under Anders is to 

advise the appellant of the right to raise points in addition to 

those in counsel’s Anders brief. Thus, when conducting an 

Anders review, this Court will consider not only the brief 

filed by counsel but also any pro se appellate brief. 

If this Court receives a petition to withdraw and a brief, both 

submitted in accord with Anders, and if we are satisfied that 

counsel has complied with the three technical Anders

requirements, we will then undertake our own independent 

examination of the issues raised in the Anders brief and in 

any pro se brief to determine whether we agree with 

counsel’s assessment that the appeal before us is frivolous. 

If, after our review, we determine that the appeal is 

frivolous, then we will grant counsel’s petition to withdraw 

and we will affirm the judgment of sentence. However, if it 
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appears that there are non-frivolous issues, we will deny the 

petition to withdraw and remand the case with directions that 

counsel file an advocate’s brief. An advocate’s brief must 

contain fully developed arguments supporting the appellant’s 

position. After the filing thereof, the Commonwealth will 

have the opportunity to submit a responsive brief. Upon 

receipt of the advocate’s brief and the Commonwealth’s 

response, we will then decide the merits of the case. 

Id. at 353-354 (citations omitted). Because Appellant has exercised his right 

to file a pro se brief, we will review his issue as well. 

Appellant raises the following issues for our review:

WHETHER THE IMPOSITION OF A 19-MONTH TO 40-MONTH 

SENTENCE IN A STATE CORRECTIONAL INSTITUTION IS 

HARSH AND EXCESSIVE WHEN APPELLANT TOOK 

RESPONSIBILITY BY PLEADING GUILTY; THE OFFENSE 

GRAVITY SCORE WAS INCORRECT; THE TRIAL COURT 

FAILED TO CONSIDER THAT [APPELLANT] IS A FATHER; 

AND APPELLANT ARGUED THAT THE DRUGS IN QUESTION 

WERE NOT IN PLAIN VIEW[?]

(Anders Brief at 2).

[DID] THE TRIAL COURT [HAVE] ILL-WILL OR BIAS BY 

DIMINISHING [APPELLANT’S] CHARACTER[,] FACTS OF THE 

CIRCUMSTANCES[,] AND THE OFFENSE AT [SENTENCING,] 

AND WAS THERE [AN ACTUAL] FACTUAL BASIS FOR THE 

PLEA?

(Appellant’s Pro Se Supplemental Brief at 2, unpaginated). 

In his first issue, Appellant argues the court imposed a manifestly 

excessive sentence. Specifically, Appellant asserts the court used an OGS of 

six (6), when the correct OGS should have been five (5). Appellant complains 

the court failed to consider Appellant’s taking responsibility for his actions by 

pleading guilty and Appellant’s desire to take care of his children as mitigating 
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factors. As presented, Appellant challenges the discretionary aspects of his 

sentence.5 See Commonwealth v. Williams, 151 A.3d 621 (Pa.Super. 

2016) (stating claim that sentencing court used incorrect OGS challenges 

discretionary aspects of sentencing); Commonwealth v. Lutes, 793 A.2d 

949 (Pa.Super. 2002) (stating claim that sentence is manifestly excessive 

challenges discretionary aspects of sentencing); Commonwealth v. CruzCenteno, 668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa. 653, 676 

A.2d 1195 (1996) (stating allegation court ignored mitigating factors 

challenges discretionary aspects of sentencing).

Challenges to the discretionary aspects of sentencing do not entitle an 

appellant to an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910 

(Pa.Super. 2000). Prior to reaching the merits of a discretionary sentencing 

issue: 

[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 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 

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5 “[W]hile a guilty plea which includes sentence negotiation ordinarily 

precludes a defendant from contesting the validity of his...sentence other than 

to argue that the sentence is illegal or that the sentencing court did not have 

jurisdiction, open plea agreements are an exception in which a defendant will 

not be precluded from appealing the discretionary aspects of the sentence.” 

Commonwealth v. Tirado, 870 A.2d 362, 365 n.5 (Pa.Super. 2005) 

(emphasis in original). “An ‘open’ plea agreement is one in which there is no 

negotiated sentence.” Id. at 363 n.1. Here, Appellant’s guilty plea included 

no negotiated sentence. 
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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). 

When appealing the discretionary aspects of a sentence, an appellant 

must invoke this Court’s jurisdiction by including in his brief a separate concise 

statement demonstrating a substantial question as to the appropriateness of 

the sentence under the Sentencing Code. Commonwealth v. Mouzon, 571 

Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P. 2119(f). “The requirement that an 

appellant separately set forth the reasons relied upon for allowance of appeal 

furthers the purpose evident in the Sentencing Code as a whole of limiting any 

challenges to the trial court’s evaluation of the multitude of factors impinging 

on the sentencing decision to exceptional cases.” Commonwealth v. 

Phillips, 946 A.2d 103, 112 (Pa.Super. 2008), cert. denied, 556 U.S. 1264, 

129 S.Ct. 2450, 174 L.Ed.2d 240 (2009) (quoting Commonwealth v. 

Williams, 562 A.2d 1385, 1387 (Pa.Super. 1989) (en banc)) (emphasis in 

original) (internal quotation marks omitted). 

“The determination of what constitutes a substantial question must be 

evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830 

A.2d 1013, 1018 (Pa.Super. 2003). A substantial question exists “only when 

the appellant advances a colorable argument that the sentencing judge’s 

actions were either: (1) inconsistent with a specific provision of the Sentencing 

Code; or (2) contrary to the fundamental norms which underlie the sentencing 
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process.” Sierra, supra at 912-13. An allegation that the sentencing court 

failed to consider certain mitigating factors, absent more, does not raise a 

substantial question for our review. Commonwealth v. Rhoades, 8 A.3d 

912, 918-19 (Pa.Super. 2010), appeal denied, 611 Pa. 651, 25 A.3d 328 

(2011), cert. denied, 565 U.S. 1263, 132 S.Ct. 1746, 182 L.Ed.2d 536 (2012). 

A claim that the sentencing court applied the incorrect OGS, however, does 

raise a substantial question for our review. Commonwealth v. Lamonda, 

52 A.3d 365, 371 (Pa.Super. 2012), appeal denied, 621 Pa. 677, 75 A.3d 1281 

(2013). 

Our standard of review concerning the discretionary aspects of 

sentencing is as follows: 

Sentencing is a matter vested in the sound discretion of the 

sentencing judge, and a sentence will not be disturbed on 

appeal absent a manifest abuse of discretion. In this 

context, an abuse of discretion is not shown merely by an 

error in judgment. Rather, the appellant must establish, by 

reference to the record, that the sentencing court ignored 

or misapplied the law, exercised its judgment for reasons of 

partiality, prejudice, bias or ill will, or arrived at a manifestly 

unreasonable decision. 

Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa.Super. 2005), appeal 

denied, 586 Pa. 723, 890 A.2d 1057 (2005).

Instantly, Appellant raised this issue in a post-sentence motion and filed 

a timely notice of appeal. Appellant, however, did not set forth a separate 

statement of reasons for review under Rule 2119(f) in his appellate brief, 

which ordinarily waives a discretionary-aspects-of-sentencing issue, unless 
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the Commonwealth fails to object to the omission. See Commonwealth v. 

Saranchak, 544 Pa. 158, 675 A.2d 268 (1996) (stating court may overlook 

appellant’s failure to provide Rule 2119(f) statement when appellee fails to 

object, if substantial question is evident from appellant’s brief; boilerplate 

assertions do not qualify as substantial questions regarding discretionary 

aspects of sentencing). But see Commonwealth v. Lilley, 978 A.2d 995, 

998 (Pa.Super. 2009) (noting Anders requires review of issues otherwise 

waived on appeal to determine their merit in order to rule on counsel’s request 

to withdraw). 

Here, the Commonwealth declined to file an appellate brief and did not 

object to the omission of the Rule 2119(f) statement in Appellant’s brief. 

Therefore, we may overlook the omission if Appellant has raised a substantial 

question in his brief. See Saranchak, supra. Moreover, counsel filed an 

Anders brief, so we would review the issue in any event. Appellant’s assertion 

that the sentencing court did not consider mitigating factors and imposed an 

excessive sentence, however, does not raise a substantial question. See 

Rhoades, supra. On the other hand, Appellant’s claim that the sentencing 

court used the incorrect OGS does raise a substantial question for our review. 

See Lamonda, supra.

A person is guilty of PWID if he intentionally manufactures or delivers a 

controlled substance. 35 P.S. § 780-113(a)(30). The OGS for a PWID 

conviction with less than one (1) gram of heroin is six (6). 204 Pa.Code § 
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303.15. The standard minimum sentencing range for an offense with an OGS 

of six (6) and a defendant with a PRS of four (4) is fifteen (15) to twenty-one 

(21) months’ imprisonment. 204 Pa.Code § 303.16(a). 

Here, Appellant pled guilty to PWID of 0.92 grams of heroin under 35 

P.S. § 780-113(a)(30), which is less than one gram and carries a OGS of six 

(6). The court correctly applied an OGS of six (6) when it sentenced Appellant. 

See 204 Pa.Code § 303.15. Further, the court sentenced Appellant to 

nineteen (19) to forty (40) months’ imprisonment, which is within the 

standard sentencing range. See 204 Pa.Code § 303.16(a). Thus, the OGS 

challenge to the discretionary aspects of the sentence fails. 

In his pro se issue, Appellant avers he was not making excuses at 

sentencing for why the drugs were in his apartment; he was stating the drugs 

found in his home were not actually in plain view, when his parole officer 

searched his residence. Appellant complains his parole officer removed the 

drugs from containers and put them in plain view. Appellant contends he 

would not have allowed his parole agent into his residence with drugs in plain 

view, because that would be asking to go to jail. Appellant claims these 

assertions call into question the factual basis for his guilty plea. Appellant is 

upset that the factual basis for the guilty plea caused the court to apply an 

unreasonable sentence. Appellant also complains the Commonwealth 

assumed Appellant was just making up excuses, which led to ill will and bias 

at sentencing. As a result of these errors, Appellant concludes his sentence 
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is unreasonable and his guilty plea lacked an accurate factual basis. We 

cannot agree. 

“Where an appellant fails to challenge his guilty plea in the trial court, 

he may not do so on appeal.” Commonwealth v. Tareila, 895 A.2d 1266, 

1270 n.3 (Pa.Super. 2006). An appellant must either object at the sentence 

colloquy or otherwise raise an issue related to the guilty plea at the sentencing 

hearing or through a post-sentence motion in order to preserve it for appeal 

purposes. Id. Here, Appellant did not challenge his guilty plea during his 

guilty plea colloquy or at the sentencing hearing. Appellant also failed to 

challenge the guilty plea in his counseled post-sentence motion. Therefore, 

Appellant’s challenge to the factual basis of his guilty plea is waived for 

purposes of appeal. See id. 

Moreover, “a defendant who attempts to withdraw a guilty plea after 

sentencing must demonstrate prejudice on the order of manifest injustice 

before withdrawal is justified.” Commonwealth v. Pantalion, 957 A.2d 

1267, 1271 (Pa.Super. 2008). “A plea rises to the level of manifest injustice 

when it was entered into involuntarily, unknowingly, or unintelligently.” Id.

(quoting Commonwealth v. Muhammad, 794 A.2d 378, 383 (Pa.Super. 

2002)). The Pennsylvania Rules of Criminal Procedure mandate that 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. Hodges, 789 A.2d 764 
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(Pa.Super. 2002). Specifically, the record must affirmatively demonstrate a 

defendant understood: (1) the nature of the charges to which he is pleading 

guilty; (2) the factual basis for the plea; (3) his right to trial by jury; (4) the 

presumption of innocence; (5) the permissible ranges of sentences and fines 

possible; and (6) that the judge is not bound by the terms of the agreement 

unless he accepts the agreement. Commonwealth v. Watson, 835 A.2d 

786 (Pa.Super. 2003). This Court will evaluate the adequacy of the plea 

colloquy and the voluntariness of the resulting plea by examining the totality 

of the circumstances surrounding entry of that plea. Muhammad, supra.

“[B]efore accepting a plea of guilty, the trial court must satisfy itself that 

there is a factual basis for the plea.” Commonwealth v. Fluharty, 632 A.2d 

312, 315 (Pa.Super. 1993) (quoting Commonwealth v. Maddox, 450 Pa.

406, 409-10, 300 A.2d 503, 505 (1973)). The factual basis requirement, 

however, does not mandate that the defendant must admit every element of 

his crimes. Fluharty, supra.

In this respect, the United States Supreme Court has held:

[W]hile most pleas of guilty consist of both a waiver 

of trial and an express admission of guilt, the latter 

element is not a constitutional requisite to the 

imposition of criminal penalty. An individual accused 

of crime may voluntarily, knowingly, and 

understandingly consent to the imposition of a prison 

sentence even if he is unwilling or unable to admit his 

participation in the acts constituting the crime.

Nor can we perceive any material difference between 

a plea that refuses to admit commission of the 

criminal act and a plea containing a protestation of 
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innocence when, as in the instant case, a defendant 

intelligently concludes that his interests require entry 

of a guilty plea and the record before the judge 

contains strong evidence of actual guilt.

North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 

167, 27 L.Ed.2d 162, 171 (1970). See Commonwealth v. 

Cottrell, 433 Pa. 177, 179, 249 A.2d 294, 295 (1969) 

(“[W]here there is significant evidence of guilt...and the 

accused, after adequate consultation with his counsel, 

decides to plead guilty, that plea is not rendered invalid 

merely because the accused is unable or unwilling to detail 

the occurrence in court.”).

It would appear, therefore, that a defendant may knowingly 

and voluntarily enter a guilty plea as a matter of strategy or 

expedience even though he...is unable or unwilling to admit 

guilt.

Fluharty, supra at 315. Pennsylvania law presumes a defendant who 

entered a guilty plea was aware of what he was doing and bears the burden 

of proving otherwise. Commonwealth v. Pollard, 832 A.2d 517 (Pa.Super. 

2003). A defendant who decides to plead guilty is bound by the statements 

he makes while under oath, “and he may not later assert grounds for 

withdrawing the plea which contradict the statements he made at his plea 

colloquy.” Id. at 523. “Our law does not require that a defendant be totally 

pleased with the outcome of his decision to plead guilty, only that his decision 

be voluntary, knowing and intelligent.” Id. at 524. 

Here, the court conducted Appellant’s guilty plea hearing on June 29, 

2016. The Commonwealth provided the factual basis for Appellant’s plea as 

follows: 

On February [9], 2016, the Office of State Parole was 
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searching [Appellant’s] residence in Kingston. He was on 

parole at that time. During that time the agent discovered 

[Appellant] to be in possession of .92 grams of heroin under 

the circumstances indicating an intent to deliver, including 

having scales and packaging material and not having 

paraphernalia commonly used to ingest heroin.

(N.T. Guilty Plea Hearing, 6/29/17, at 5). The record makes clear Appellant 

understood the nature of the charges against him, the factual basis for the 

plea, his right to trial by jury, the presumption of innocence, the permissible 

ranges of sentences and fines possible, and the court was not bound by the 

terms of the agreement unless the court accepted the agreement. See

Watson, supra. Following independent review of the record, we conclude 

the appeal is otherwise wholly frivolous. See Dempster, supra; Palm,

supra. Accordingly, we affirm the judgment of sentence 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: 06/15/2018