Com. v. Aguilar-Urbina, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

MIGUEL A. AGUILAR-URBINA :

:

Appellant : No. 1147 MDA 2024

Appeal from the Judgment of Sentence Entered June 17, 2024

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

No(s): CP-01-CR-0000972-2023

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

MIGUEL A. AGUILAR-URBINA :

:

Appellant : No. 1148 MDA 2024

Appeal from the Judgment of Sentence Entered June 17, 2024

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

No(s): CP-01-CR-0000973-2023

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

MIGUEL A. AGUILAR-URBINA :

:

Appellant : No. 1149 MDA 2024

Appeal from the Judgment of Sentence Entered June 17, 2024

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

No(s): CP-01-CR-0000984-2023

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BEFORE: NICHOLS, J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY NICHOLS, J.: FILED: MAY 21, 2025

Appellant Miguel A. Aguilar-Urbina appeals the judgments of sentence

imposed after he pled guilty to driving under the influence (DUI) of alcohol—

highest rate and driving while operating privilege suspended or revoked

(driving under suspension),1 and after a jury convicted Appellant of simple

assault,2 and strangulation, and intimidation of witnesses.3 Appellant’s

counsel, Scott Alan Harper, Esq. (Appellate Counsel), has filed petitions to

withdraw and Anders/Santiago4 briefs with respect to all three appeals.5

After review, we conclude that the trial court imposed an illegal sentence for

DUI. Therefore, we affirm Appellant’s convictions, vacate the judgments of

sentence, remand for resentencing, and deny Appellate Counsel’s petitions to

withdraw.

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 Appeal at 1147 MDA 2024.

2 Appeal at 1148 MDA 2024.

3 Appeal at 1149 MDA 2024.

4 Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago,

978 A.2d 349 (Pa. 2009).

5 As explained further below, the trial court imposed consecutive sentences in

these three cases. Therefore, pursuant to Pa.R.A.P. 513, we consolidate these

appeals sua sponte and address them in one disposition.

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Factual and Procedural History: 1147 MDA 2024

(Docket No. 972-2023)

The trial court set forth the following factual and procedural history for

this case:

On August 19, 2023, Appellant was pulled over on suspicion of

driving under the influence. Appellant was ultimately charged

with several offenses, among them were Count 2 DUI highest rate

of alcohol as a fourth or subsequent offense and Count 3 driving

under suspension as a third offense.[6] Appellant entered open

pleas of guilty to Counts 2 and 3 on March 14, 2024.

* * *

[T]he [trial] court accepted Appellant’s pleas of guilty to Counts 2

and 3, ordered a pre-sentence investigation [(PSI)], and entered

an order directing Appellant to appear for sentencing on June 17,

2024.

On June 3, 2024, Appellant filed [a motion] to withdraw his guilty

plea. The [trial] court directed that Appellant present his

argument justifying withdrawal of his guilty pleas to Counts 2 and

3 before sentencing on June 17, 2024.

Before sentencing on June 17, 2024, Appellant put on the record

his reasons for wanting to withdraw his guilty pleas to Counts 2

and 3. Appellant specifically stated that his trial counsel had lied

to him about the maximum and minimum sentences the [trial]

Court would impose and that he was rushed or pressured into

entering his plea.

Trial Ct. Op., 8/27/24, at 1-3 (footnotes omitted and some formatting

altered).

The trial court denied Appellant’s motion to withdraw guilty plea. N.T.

Sentencing Hr’g, 6/17/24, at 8-9. We add that Sonia Wise, Esq. (Trial

____________________________________________

6 75 Pa.C.S. §§ 3802(c) and 1543(b)(1.1)(iii), respectively.

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Counsel), of the Adams County Public Defender’s Office, represented Appellant

at the guilty plea hearing in this matter, at trial in the other two matters, and

at sentencing for all three matters.

Factual and Procedural History: 1148 MDA 2024 and 1149 MDA 2024

(Docket Nos. 973-2023 and 984-2023)

The trial court set forth the following procedural history for these two

cases:

In the case docketed at [Docket No. 973-2023], Appellant was

arrested by the McSherrystown Borough Police and charged with

simple assault[7] concerning an incident alleged to have occurred

on August 22, 2023 involving his live-in girlfriend, Rebecca Bross

(hereinafter “Victim”). In the case docketed at [Docket No. 984-

2023], Appellant was arrested by the McSherrystown Borough

Police and ultimately charged with strangulation, terroristic

threats, intimidation of witness, and simple assault[8] for incidents

alleged to have occurred between August 17, 2023 and August

22, 2023 involving the Victim.

On October 16, 2023, the Commonwealth filed [a] notice of trial

joinder concerning their intent to try the above-captioned cases

(hereinafter “both cases”) together, pursuant to Pa.R.Crim.P. 582.

. . . On November 20, 2023, the Honorable Thomas R. Campbell,

Court of Common Pleas of Adams County, entered an order joining

both cases for trial.

Trial Ct. Op., 8/30/24, at 1-2 (footnotes omitted and some formatting

altered).

____________________________________________

7 18 Pa.C.S. § 2701(a)(1).

8 18 Pa.C.S. §§ 2718(a)(1), 2706(a)(1), 4952(a)(2), and 2701(a)(1),

respectively.

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The trial court summarized the evidence presented at trial for all three

dockets as follows:

The Victim testified that she began a relationship with Appellant

during May 2023 and moved into Appellant’s apartment on June

3, 2023 at 510 North Street, McSherrystown, Adams County,

Pennsylvania. On August 17, 2023, during a verbal altercation in

the McSherrystown apartment, Appellant stated “you know I can

choke you to death, right?” Appellant then began choking the

Victim with both of his hands wrapped around the Victim’s throat.

Appellant applied significant pressure to the Victim’s neck and the

Victim was unable to breath[e]. The Victim felt like she was going

to pass out. The Victim testified that Appellant had a really cold

expression while he strangled her. After Appellant stopped

strangling the Victim, he stated, “just don’t ever cheat on me” and

then apologized to the Victim. The Victim testified that her throat

hurt the next day.

On August 18, 2023, during a verbal altercation in the Victim’s

car, Appellant slapped the Victim across the face with an open

hand. The Commonwealth presented a text message from

Appellant to the Victim dated August 18, 2023, where Appellant

admitted slapping the Victim in the face.

The Commonwealth and [Appellant] stipulated that, between the

dates of August 19 and August 21, 2023, Appellant was

unavailable and did not have any in-person contact with the

Victim, but did speak with the Victim by cell phone. The

Commonwealth played a recording of a telephone conversation

between Appellant and the Victim during this time period and

Appellant stated to the Victim “I’m so sorry for how I treat you.”

On August 21, 2023, the Victim met with Chief Larry Kitzmiller

(hereinafter “Chief Kitzmiller”) of the McSherrystown Police

Department to report the August 17, 2023 assault perpetrated by

Appellant. Chief Kitzmiller met with the Victim, observed her

emotional state to be upset, and obtained a written and recorded

statement from the Victim.

In the early morning of August 22, 2023, Appellant drove the

Victim in the Victim’s car to Penn State Berks Campus where the

Victim attended classes. During the car ride from McSherrystown,

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Appellant directed the Victim to contact Chief Kitzmiller and tell

him she had lied about the assault on August 17, 2023. The Victim

called 9-1-1 and subsequently received a return telephone call

from Chief Kitzmiller while she was still in the car with Appellant.

The Victim told Chief Kitzmiller that she lied about the assault that

occurred on August 17, 2023, and that it never occurred. During

the Victim’s conversation with Chief Kitzmiller, Appellant typed on

a cell phone “I thought he was cheating” and held that phone up

to the Victim’s face. The Victim told Chief Kitzmiller she lied

because she thought Appellant was cheating. The Victim testified

at trial that she recanted the statement she gave to Chief

Kitzmiller solely because she was afraid of Appellant. After the

Victim arrived at Penn State Berks Campus, and after she was

away from Appellant, she called Chief Kitzmiller again and told

him that Appellant had told her to lie and that’s why she recanted

the August 17, 2023 assault.

After class on August 22, 2023, the Victim and Appellant returned

to their apartment in McSherrystown. Appellant assaulted the

Victim again by gripping the Victim by her arms and strangling the

Victim with both of his hands around her neck. After the assault,

the Victim immediately called 9-1-1 and reported the assault. The

9-1-1 recording, which was played for the jury, reported the

details of the assault. Officer Scott Curly (hereinafter “Officer

Curly”) of the McSherrystown Police Department immediately

responded to the apartment. He observed that the Victim was

visibly upset, she was crying and staggering around, and it

appeared she had just suffered some sort of physical trauma.

Officer Curly observed redness to her chest and neck, as well as

marks on her arm and neck. Officer Curly observed that

Appellant’s eyes were glassy, and he smelled of an alcoholic

beverage. Officer Curly took photographs of the injuries the

Victim suffered to her arm, chest, and neck. The photographs

were presented to the jury through the testimony of the Victim

and Officer Curly.

Trial Ct. Op., 8/30/24, at 4-6 (citations and footnotes omitted and some

formatting altered).

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On March 26, 2024, the jury convicted Appellant of simple assault at

Docket No. 973-2023, as well as strangulation and intimidation of witnesses

or victims at Docket No. 984-2023. The jury acquitted Appellant of the

remaining charges.

The trial court summarized the ensuing procedural history for all three

matters as follows:

On June 5, 2024, [Trial Counsel] filed a motion to withdraw as

counsel and averred that Appellant requested that she withdraw

from both cases on the basis of her alleged ineffective assistance

of counsel. On June 5, 2024, the [trial] court denied [Trial

Counsel’s] motion to withdraw as counsel as prematurely filed.

On June 17, 2024, Appellant appeared with [Trial Counsel] for

sentence[ing]. . . .

Trial Ct. Op., 8/30/24, at 3 (footnotes omitted and some formatting altered).

We add that during the sentencing hearing, Appellant made a pro se

oral motion for extraordinary relief claiming that there were several errors

prior to and at trial. See N.T. Sentencing Hr’g, 6/17/24, at 10-12. First,

Appellant alleged that Trial Counsel failed to advise him that if he testified, he

could be impeached with his prior convictions for crimen falsi. See id. at 10-

11. Next, Appellant claimed that he had been denied his Sixth Amendment

right to compel favorable witnesses because the Victim and Officer Curly

testified that there were witnesses present when Appellant was arrested, who

did not testify at trial. See id. at 11. Lastly, Appellant contended that he had

a right to seek legal assistance from the Mexican embassy under the Vienna

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Convention because he has dual American and Mexican citizenship. See id.

at 12. The trial court denied Appellant’s oral motion for extraordinary relief.

See id.

At Docket No. 972-2023, the trial court sentenced Appellant to two to

ten years’ incarceration for DUI and a consecutive term of two to four years’

incarceration for driving under suspension. At Docket No. 984-2023, the trial

court sentenced Appellant to a term of five to ten years’ incarceration for

strangulation and a consecutive term of one to two years’ incarceration for

intimidation of witnesses. The trial court ordered that the sentence imposed

at Docket No. 984-2023 run consecutive to the sentence imposed at Docket

No. 972-2023 (i.e., consecutive the sentences for DUI and driving under

suspension). Lastly, at Docket No. 973-2022, the trial court imposed a

sentence of eight to twenty-four months’ incarceration for simple assault,

consecutive to the sentence at Docket No. 984-2023. Therefore, Appellant’s

aggregate sentence for these three matters is ten years and eight months to

twenty-eight years’ incarceration.

Appellant did not file any post-sentence motions. However, Appellant

filed timely notices of appeal at each trial court docket number. Appellate

Counsel entered his appearance on behalf of Appellant on July 3, 2024. On

August 22, 2024, Appellate Counsel filed late Pa.R.A.P. 1925(c)(4) statements

indicating his intent to file Anders/Santiago briefs on appeal. The trial court

first issued a Rule 1925(a) opinion explaining its decision to deny Appellant’s

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motion to withdraw his guilty plea in Docket No. 972-2023. See Trial Ct. Op.,

8/27/24, at 1-9. The trial court subsequently issued a separate Rule 1925(a)

opinion discussing the sufficiency of the evidence supporting Appellant’s

convictions for strangulation, intimidation of witnesses, and simple assault

with respect to Docket Nos. 973-2023 and 984-2023. See Trial Ct. Op.,

8/30/24, at 1-10.

Anders/Santiago Briefs

As we have noted, Appellate Counsel filed petitions to withdraw and

Anders/Santiago briefs at each appellate docket number. Appellant filed a

pro se response to Appellate Counsel’s Anders/Santiago briefs. Therein,

Appellant argued that Appellate Counsel was ineffective and has a conflict of

interest because Appellate Counsel and Trial Counsel are both employees of

the Adams County Public Defender’s Office. See Appellant’s Pro Se Response,

10/30/24, at 1-2 (unpaginated).

“When faced with a purported Anders[/Santiago] brief, this Court may

not review the merits of any possible underlying issues without first examining

counsel’s request to withdraw.” Commonwealth v. Wimbush, 951 A.2d

379, 382 (Pa. Super. 2008) (citation omitted). Counsel must comply with the

technical requirements for petitioning to withdraw by (1) filing a petition for

leave to withdraw stating that after making a conscientious examination of

the record, counsel has determined that the appeal would be frivolous; (2)

providing a copy of the brief to the appellant; and (3) advising the appellant

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that he has the right to retain private counsel, proceed pro se, or raise

additional arguments that the appellant considers worthy of the court’s

attention. See Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.

2007) (en banc). In an Anders/Santiago brief, counsel must set forth the

issues that the defendant wishes to raise and any other claims necessary to

effectuate appellate presentation of those issues. Commonwealth v.

Millisock, 873 A.2d 748, 751 (Pa. Super. 2005).

Additionally, counsel must file a brief that meets the requirements

established in Santiago, namely:

(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.

“Once 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.” Goodwin, 928 A.2d at 291 (citation omitted). This includes “an

independent review of the record to discern if there are any additional, non-

frivolous issues overlooked by counsel.” Commonwealth v. Flowers, 113

A.3d 1246, 1250 (Pa. Super. 2015) (citation and footnote omitted); accord

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Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en

banc). Moreover, we note that when an issue is waived, it is deemed a

frivolous issue. See Commonwealth v. Kalichak, 943 A.2d 285, 291 (Pa.

Super. 2008) (holding that when an issue has been waived, “pursuing th[e]

matter on direct appeal is frivolous”).

Here, Appellate Counsel has complied with the procedural requirements

for seeking withdrawal by filing petitions to withdraw, sending Appellant

letters notifying Appellant of Appellate Counsel’s intent to withdraw,

explaining Appellant’s appellate rights, informing Appellant of his right to

proceed pro se or with private counsel, and supplying Appellant with copies of

the Anders/Santiago briefs. See Goodwin, 928 A.2d at 290. Appellate

Counsel also provided this Court with a copy of his letters to Appellant

informing him of his rights. Moreover, Appellate Counsel’s Anders/Santiago

briefs comply with the requirements of Santiago. Appellate Counsel includes

summaries of the relevant factual and procedural history, refers to the

portions of the record that could arguably support Appellant’s claim, and sets

forth the conclusions that the appeal is frivolous in each brief. See Santiago,

978 A.2d at 361. Accordingly, we conclude that Appellate Counsel has met

the technical requirements of Anders and Santiago, and we will proceed to

address the issues presented in Appellate Counsel’s Anders/Santiago briefs.

1147 MDA 2024 (Docket No. 972-2023)

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In this appeal, Appellate Counsel identified the following issues for our

review:

1. Whether the trial court erred in not granting Appellant’s motion

to withdraw his guilty plea.

2. Whether [Trial] Counsel provided ineffective assistance of

counsel.

Anders/Santiago Brief, 1147 MDA 2024, at 5 (some formatting altered).

Withdrawal of Guilty Plea

The first issue that Appellate Counsel identified is Appellant’s claim that

the trial court erred by denying Appellant’s motion to withdraw his guilty plea

prior to sentencing. Id. at 7-10. Specifically, Appellant claimed that Trial

Counsel lied to him about the minimum and maximum penalties he could

receive and asserts that Trial Counsel pressured him into pleading guilty. Id.

at 6, 8-9.

It is well settled that a criminal defendant “has no absolute right to

withdraw a guilty plea; rather, the decision to grant such a motion lies within

the sound discretion of the trial court.” Commonwealth v. Muhammad,

794 A.2d 378, 382 (Pa. Super. 2002) (citation omitted). We review the denial

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

Commonwealth v. Gordy, 73 A.3d 620, 624 (Pa. Super. 2013). “An abuse

of discretion is not a mere error in judgment but, rather, involves bias, ill will,

partiality, prejudice, manifest unreasonableness, and/or misapplication of

law.” Id. (citation omitted).

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The standards required for withdrawing a guilty plea differ “depending

on whether the defendant seeks to withdraw the plea before or after

sentencing.” Commonwealth v. Hart, 174 A.3d 660, 664 (Pa. Super. 2017).

In the context of a pre-sentence motion to withdraw a plea, our Supreme

Court has stated:

[T]here is no absolute right to withdraw a guilty plea; trial courts

have discretion in determining whether a withdrawal request will

be granted; such discretion is to be administered liberally in favor

of the accused; and any demonstration by a defendant of a fair-

and-just reason will suffice to support a grant, unless withdrawal

would work substantial prejudice to the Commonwealth.

Commonwealth v. Carrasquillo, 115 A.3d 1284, 1291-92 (Pa. 2015)

(citation and footnote omitted); see also Pa.R.Crim.P. 591(A) (stating that

“[a]t any time before the imposition of sentence, the court may, in its

discretion, permit . . . the withdrawal of a plea”).

This Court has explained that “the law does not require that the

defendant be pleased with the outcome of his decision to enter a plea of guilty:

All that is required is that his decision to plead guilty be knowingly, voluntarily

and intelligently made.” Commonwealth v. Reid, 117 A.3d 777, 783 (Pa.

Super. 2015) (citations omitted and formatting altered).

“A valid plea colloquy must delve into six areas: 1) the nature of the

charges, 2) the factual basis of the plea, 3) the right to a jury trial, 4) the

presumption of innocence, 5) the sentencing ranges, and 6) the plea court’s

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power to deviate from any recommended sentence.” Id. at 782 (citations and

quotation marks omitted).

Although not constitutionally mandated, a proper plea colloquy ensures

that a defendant’s guilty plea is truly knowing and voluntary.

Commonwealth v. Maddox, 300 A.2d 503, 504 (Pa. 1973) (citation

omitted). “Furthermore, nothing in [Pa.R.Crim.P. 590] 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

proceedings.” Commonwealth v. Bedell, 954 A.2d 1209, 1212-13 (Pa.

Super. 2008) (citation omitted); see also Pa.R.Crim.P. 590, cmt. “A person

who elects to plead guilty is bound by the statements he makes in open court

while under oath and he may not later assert grounds for withdrawing the plea

which contradict the statements he made at his plea colloquy.”

Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super. 2003) (citation

omitted).

A claim that defense counsel provided the defendant erroneous advice

about the sentence can be a fair and just reason to allow a defendant to

withdraw the guilty plea prior to sentencing. See, e.g., Commonwealth v.

Pardo, 35 A.3d 1222, 1231 (Pa. Super. 2011).

This Court has held that a defendant was not entitled to withdraw his

guilty plea prior to sentencing because of the defendant’s poor relationship

with counsel where the record did not support the defendant’s claim that he

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had entered the plea under duress. Commonwealth v. McLendon, 293 A.3d

658, 664-65 (Pa. Super. 2023), appeal denied, 310 A.3d 73 (Pa. 2023). In

McLendon, this Court explained that the record “reveal[ed] a contentious

relationship between [the defendant] and his appointed counsel throughout

this case.” McLendon, 293 A.3d at 662. However, this Court affirmed the

trial court’s denial of the defendant’s request to withdraw his guilty plea

because the guilty plea hearing transcript demonstrated that the defendant

stated he desired to enter a guilty plea and there was no evidence that the

defendant’s “apparent dissatisfaction at the communication between himself

and defense counsel affected [the defendant’s] decision to enter a guilty plea.”

Id. at 665.

Here, the trial court explained:

Appellant asserts that the [trial] court erred in denying his motion

to withdraw guilty plea. Specifically, Appellant contends that the

reasons he stated on the record the morning of sentencing, June

17, 2024, should be sufficient to justify withdrawal of his pleas of

guilty to Counts 2 and 3. However, the reasons Appellant gave-

that he did not understand the maximum and minimum sentences

the [trial court] could impose on those charges and that he was

rushed into making a decision to plead-are not supported by the

guilty plea record of March 14, 2023, and are insufficient to justify

withdrawal of the guilty pleas entered in this matter.

Appellant’s first argument for withdrawal, that he did not

understand the maximum and minimum sentences that the [trial]

court could impose upon entry of guilty pleas to counts 2 and 3,

is patently inaccurate. At the time of the pleas, Appellant

reviewed the eleven-page written plea colloquy with [Trial]

Counsel. He signed and initialed the plea colloquy indicating he

understood and agreed to the terms therein. Further, the [trial]

court also conducted [an] extensive [oral] colloquy with Appellant

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on the record regarding the potential sentences that could have

been imposed here. . . .

* * *

At no point during this colloquy did Appellant ask any questions

about the sentences that could be imposed in this matter, nor did

he ask for clarification regarding the maximum and mandatory

minimum sentences. From the record it is clear that Appellant

was thoroughly apprised of the maximum and mandatory

minimum sentences in this matter, and was granted ample

opportunity to ask for clarification on this information if he was

confused. Instead, Appellant replied in the affirmative each time

he was asked if he understood the sentences he was facing.

Appellant also argues that he was pressured into entering guilty

pleas to Counts 2 and 3 and should therefore be permitted to

withdraw his plea. Appellant’s contention has no merit. . . .

During the oral colloquy, Appellant raised no issues or questions

about [Trial] Counsel’s advice. Appellant affirmed that no one

made any promises or threats to get him to enter the pleas, and

that it was his decision to plead guilty. Appellant agreed to the

facts outlined by the Commonwealth to support the plea and

affirmed he was pleading guilty because he was, in fact, guilty of

both charges. Appellant entered an open plea and, as Appellant

was made aware on the record, the [trial] court retained full

sentencing authority in this matter.

Trial Ct. Op., 8/27/24, at 5-8 (footnotes omitted and some formatting

altered).

Based on our review of the record, we discern no abuse of discretion by

the trial court in denying Appellant’s motion to withdraw his guilty plea. See

Gordy, 73 A.3d at 624. As stated above, Appellant completed both an oral

and written plea colloquy at the time he entered the guilty plea. See N.T.

Guilty Plea Hr’g, 3/14/24, at 4-7; see also Written Guilty Plea Colloquy,

3/14/24, at 1-11 (unpaginated).

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Specifically, during the oral colloquy, the following exchange occurred:

THE COURT: Do you understand the conditions of your plea and

the rights you are giving up by entering these pleas of guilty?

[APPELLANT]: Yes.

THE COURT: You are entering pleas of guilty to driving under the

influence of alcohol, highest rate. This is a felony of the second

degree because this is a fourth or subsequent offense. This has a

maximum sentence of up to 10 years in jail, maximum fine of

$25,000. There is a mandatory minimum sentence of up to one

year in jail, mandatory minimum fine of $2,500, which the [trial

court] must impose.

* * *

THE COURT: Do you understand sir?

[APPELLANT]: Yes.

THE COURT: You’re also entering a plea of guilty to driving under

suspension, DUI related, where there is alcohol in your system of

.02 percent or greater at the time you were driving and that this

is a third or subsequent offense. This is a misdemeanor of the

first degree. This has a maximum sentence of five years in jail,

$10,000 fine. There is a mandatory minimum sentence in this

case of up to two years in jail, mandatory minimum fine of $5,000.

Do you understand, sir?

[APPELLANT]: Yes.

THE COURT: Both of these pleas are open. That means the [trial

court] has full sentencing authority. These pleas can be served

consecutive, which means one on top of the other. So, you are

looking at up to 15 years in jail on both of these matters and up

to three years in jail concerning mandatory minimum sentence.

Do you understand sir?

[APPELLANT]: Yes.

* * *

THE COURT: [Appellant], has anyone made any promises or

threats to get you to enter these pleas?

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[APPELLANT]: No.

THE COURT: Is this your decision?

[APPELLANT]: Yes.

THE COURT: Have you had enough time to discuss this case with

[Trial Counsel]?

[APPELLANT]: Yes.

[APPELLANT]: Are you satisfied with the advice and service [Trial

Counsel] has provided?

[APPELLANT]: Yes.

N.T. Guilty Plea Hr’g, 3/14/24, at 3-4, 6.

The trial court’s guilty plea colloquy correctly informed Appellant of the

maximum possible sentences for the offenses to which he was pleading guilty.

See 18 Pa.C.S. §§ 1101(2), 1103(2); 75 Pa.C.S. §§ 1543(b)(1.1)(iii),

3803(a)(3), 3804(c)(3). Therefore, we agree with the trial court that

Appellant’s claim that he was misinformed about the possible sentences is not

supported by the record.

Further, at the guilty plea hearing, Appellant stated that he had not been

threatened into entering his guilty plea, that it was his decision to plead guilty,

and that he was satisfied with the advice he had received from Trial Counsel.

See N.T. Guilty Plea Hr’g, 3/14/24, at 6. Appellant is bound by his statements

at the plea hearing and in the written colloquy, which demonstrate that his

plea was knowing, voluntary, and intelligent. See Pollard, 832 A.2d at 523;

see also Pa.R.Crim.P. 590, cmt. Therefore, Appellant is not entitled to relief

on his claim that Trial Counsel had pressured him into pleading guilty. See

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McLendon, 293 A.3d at 664-65. For these reasons, we agree with Appellate

Counsel’s assessment that this claim is frivolous.

Ineffective Assistance of Counsel

The second issue that Appellate Counsel identified is Appellant’s claim

that Trial Counsel was ineffective because Trial Counsel misinformed Appellant

about the range of sentences he could receive and Trial Counsel pressured

Appellant into pleading guilty. Anders/Santiago Brief, 1147 MDA 2024, at

10-13. Appellate Counsel concluded that because generally claims of

ineffective assistance of counsel are to be deferred to collateral review, this

claim is frivolous on direct appeal. Id. at 12-13.

Our Supreme Court has explained that “as a general rule, a petitioner

should wait to raise claims of ineffective assistance of trial counsel until

collateral review[]” pursuant to the Post Conviction Relief Act 9 (PCRA).

Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002). Our Supreme

Court has recognized three exceptions to this general rule. See

Commonwealth v. Holmes, 79 A.3d 562, 577-80 (Pa. 2013);

Commonwealth v. Delgros, 183 A.3d 352, 361 (Pa. 2018). The first

exception applies to extraordinary circumstances, when a “trial court, in the

exercise of its discretion, determines that a claim [] of ineffectiveness is both

meritorious and apparent from the record so that immediate consideration

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9 42 Pa.C.S. §§ 9541-9546.

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and relief is warranted.” Holmes, 79 A.3d at 577. The second exception

addresses “multiple and fairly common ineffectiveness claims,” which are

accompanied by the defendant’s “knowing, voluntary, and express waiver of

PCRA review.” Id. at 577-78, 580. The third exception requires “trial courts

to address claims challenging trial counsel’s performance where the defendant

is statutorily precluded from obtaining subsequent PCRA review.” Delgros,

183 A.3d at 361.

To qualify for any of these exceptions an appellant must first raise his

ineffectiveness claims before the trial court, as the trial court must have an

opportunity to review such a claim, and the parties must have an opportunity

to fully develop the record. See Delgros, 183 A.3d at 360-62; Holmes, 79

A.3d at 576; see also Commonwealth v. Bomar, 826 A.2d 831, 854-55

(Pa. 2003) (recognizing an exception allowing ineffective assistance of counsel

claims to be heard on direct appeal where “the claims have been raised and

fully developed at a hearing in the trial court,” and cautioning that lack of a

trial court opinion addressing such a claim “poses a ‘substantial impediment

to meaningful and effective appellate review’” and “oblige[s] the appellate

courts to consider matters not of record, a function that appellate courts

normally do not perform[,]” i.e., “to engage in fact-finding in the form of

speculation concerning the strategy counsel pursued at trial, a function that

[appellate courts] were ill-suited to assume” (citation omitted)).

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Here, Appellant did not file any post-sentence motions raising either of

the exceptions that our Supreme Court recognized in Holmes. See Holmes,

79 A.3d at 563-64, 577-80. Further, Appellant did not expressly waive his

right to PCRA review. See id. at 564, 580. Lastly, Appellant is not statutorily

barred from seeking PCRA relief. Cf. Delgros, 183 A.3d at 361 (concluding

that the defendant was statutorily precluded from seeking review under the

PCRA because he had only been sentenced to pay a fine). For these reasons,

we conclude that none of the exceptions apply, and Appellant’s ineffectiveness

claim cannot be considered on direct appeal. See Grant, 813 A.2d at 738.

Accordingly, Appellant may raise his claim of ineffective assistance of Trial

Counsel in a timely petition under the PCRA.

1148 MDA 2024 and 1149 MDA 2024

(Docket Nos. 973-2023 and 984-2023)

In these appeals, Appellate Counsel identified the following issues for

our review:

1. Whether Appellant’s Sixth Amendment rights were violated by

the failure of both the prosecutor and [Trial Counsel] to call

favorable witnesses and to compel the attendance of favorable

witnesses?

2. Whether Appellant’s Fourteenth Amendment right to a fair trial

[was] violated when the prosecutor impeached his testimony

with crim[e]n falsi evidence?

3. Whether Appellant’s rights were violated under Article 36 of the

[Vienna] Convention when neither the Commonwealth nor the

[Trial Counsel] contacted the Mexican consulate?

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Anders/Santiago Brief, 1148 MDA 2024, at 5 (some formatting altered); see

also Anders/Santiago Brief, 1149 MDA 2024, at 5 (the same).

Before we address the merits of these claims, we must first determine

if these claims have been preserved for appeal. See Commonwealth v.

Wholaver, 903 A.2d 1178, 1184 (Pa. 2006) (explaining that appellate courts

may raise waiver sua sponte). “[T]he applicability of waiver principles . . . is

a question of law, over which our standard of review is de novo and our scope

of review is plenary.” Commonwealth v. Barbour, 189 A.3d 944, 954 (Pa.

2018) (citations omitted).

With respect to waiver, this Court has explained:

In order to preserve a claim for appellate review, a party must

make a timely and specific objection at the appropriate stage of

the proceedings before the trial court, or the claim is waived.

On appeal, [this Court] will not consider a claim which was not

called to the trial court’s attention at a time when any error

committed could have been corrected. The princip[al] rationale

underlying the waiver rule is that when an error is pointed out to

the trial court, the court then has an opportunity to correct the

error. By specifically objecting to any obvious error, the trial court

can quickly and easily correct the problem and prevent the need

for a new trial. Additionally, the appellate court should not be

required to waste judicial resources correcting a problem that the

trial court could have easily corrected if it had been given the

opportunity to avoid the necessity of granting a new trial.

Commonwealth v. Russell, 209 A.3d 419, 429 (Pa. Super. 2019) (citations

omitted and some formatting altered); see also Commonwealth v. Cline,

177 A.3d 922, 927 (Pa. Super. 2017) (explaining that “issues, even those of

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constitutional dimension, are waived if not raised in the trial court” (citations

omitted). Further, a stipulation to a fact waives any claim of error regarding

the admission of that fact. See Commonwealth v. Lemanski, 529 A.2d

1085, 1097 (Pa. Super. 1987) (stating that “[t]he parties are bound to accept

the facts to which they have stipulated” (citations omitted)).

Rule of Criminal Procedure 704 states, in relevant part, that “[a] motion

for extraordinary relief shall have no effect on the preservation or waiver of

issues for post-sentence consideration or appeal.” Pa.R.Crim.P. 704(B)(3);

see also Pa.R.Crim.P. 704(B)(3), cmt. (stating that “the making of a motion

for extraordinary relief does not, of itself, preserve any issue raised in the

motion, nor does the judge’s denial of the motion preserve any issue” for

appeal).

Here, our review of the record indicates that Appellant did not preserve

his claims before the trial court that he wished to subpoena additional

witnesses or that he had a right to contact the Mexican embassy for legal

assistance prior to or during trial. Appellant apparently raised these claims

for the first time in his motion for extraordinary relief at the sentencing

hearing.10 See N.T. Sentencing Hr’g, 6/17/24, at 10-12. Therefore, Appellant

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10 As we have noted, the trial court permitted Appellant to present an oral pro

se motion for extraordinary relief at the sentencing hearing while Appellant

was still represented by Trial Counsel. We note that this was impermissible

hybrid representation See Commonwealth v. Staton, 184 A.3d 949, 957

(Pa. 2018) (stating that “[o]ur cases have consistently stated that no

(Footnote Continued Next Page)

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has waived these claims because he failed to preserve these issues for appeal.

See Russell, 209 A.3d at 429; Cline, 177 A.3d at 927; Pa.R.Crim.P.

704(B)(3); see also Kalichak, 943 A.2d at 291 (explaining that waived

issues are frivolous).

Further, with respect to Appellant’s claim that his prior crimen falsi

conviction was inadmissible, the record reflects that both Appellant’s counsel

and the Commonwealth stipulated that Appellant had a prior conviction for

providing false identification to law enforcement authorities at trial. See N.T.

Trial, 3/26/24, at 144. Therefore, this issue is clearly frivolous. See

Lemanski, 529 A.2d at 1097. Accordingly, we conclude that the issues

Appellate Counsel identified in his Anders/Santiago briefs filed at Docket

Nos. 973-2023 and 984-2023 are either waived or frivolous.11

To the extent that Appellant argues that Trial Counsel was ineffective

for failing to pursue any of these arguments, Appellant may seek to raise these

claims in a timely filed PCRA petition. See Delgros, 183 A.3d at 361;

Holmes, 79 A.3d at 563-64, 577-80; 42 Pa.C.S. §§ 9541-9546.

____________________________________________

defendant has a constitutional right to hybrid representation, either at trial or

on appeal.” (citation omitted and formatting altered)).

11 We note that Appellant asserted that he has dual American and Mexican

citizenship. See N.T. Sentencing Hr’g, 6/17/24, at 12. Our Supreme Court

has held that the right to consular assistance under the Vienna Convention

does not apply to defendants who hold American citizenship. See

Commonwealth v. Baumhammers, 960 A.2d 59, 97 (Pa. 2008). Therefore,

even if Appellant had not waived this claim, he would not be entitled to relief.

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Appellant’s Pro Se Response

As noted previously, Appellant filed a pro se response to Appellate

Counsel’s Anders/Santiago briefs on October 30, 2024. See Goodwin, 928

A.2d at 290. Therein, Appellant argues that Appellate Counsel was ineffective

and that he has a conflict of interest because Appellate Counsel and Trial

Counsel both work for the Public Defender’s Office. See Appellant’s Pro Se

Response, 10/30/24, at 1-2 (unpaginated). Appellant further states that he

wishes to file a brief but does not have access to the necessary transcripts.

See id. at 2 (unpaginated). Lastly, Appellant requested to supplement the

certified record pursuant to Pa.R.A.P. 1922 with documents he purportedly

filed with the trial court. See id.

Appellant’s claims appear to challenge Appellate Counsel’s

effectiveness. See Appellant’s Pro Se Response, 10/30/24, at 1-2

(unpaginated). As stated above, a criminal defendant generally cannot assert

ineffective assistance of counsel claims on direct appeal, and instead must

raise such claims in a timely PCRA petition. See Holmes, 79 A.3d at 577-80.

Additionally, none of the exceptions that our Supreme Court has recognized

to this general rule are applicable here because Appellant did not raise this

claim before the trial court in a post-sentence motion.12 See id. at 563-64;

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12 Further, we note that “[a]s a general rule, a public defender may not argue

the ineffectiveness of another member of the same public defender’s office

since appellate counsel, in essence, is deemed to have asserted a claim of his

(Footnote Continued Next Page)

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see also Delgros, 183 A.3d at 361. Therefore, to the extent that Appellant

raises an ineffectiveness claim against Appellate Counsel, that issue cannot

be considered on direct appeal, although Appellant may assert these claims in

a timely filed PCRA petition. Further, we deny Appellant’s request to

supplement the record.

Legality of Sentence

Finally, we must conduct an independent review of the record to

determine whether there are any “additional, non-frivolous issues overlooked

by counsel.” Flowers, 113 A.3d at 1250 (citation and footnote omitted); see

also Yorgey, 188 A.3d at 1197.

We note that questions regarding the legality of a sentence “are not

waivable and may be raised sua sponte on direct review by this Court.”

Commonwealth v. Wright, 276 A.3d 821, 827 (Pa. Super. 2022) (citation

omitted and formatting altered). Review of the legality of a sentence

“presents a pure question of law. As such, our scope of review is plenary and

our standard of review de novo.” Id. (citations omitted and formatting

altered).

____________________________________________

or her own ineffectiveness.” Commonwealth v. Smith, 995 A.2d 1143, 1150

(Pa. 2010) (citations omitted). Therefore, Appellate Counsel could not have

invoked any of the above exceptions to allege Trial Counsel’s ineffectiveness

on direct appeal.

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“If no statutory authorization exists for a particular sentence, that

sentence is illegal and subject to correction. An illegal sentence must be

vacated.” Commonwealth v. Warunek, 279 A.3d 52, 54 (Pa. Super. 2022)

(citation omitted and some formatting altered).

Prior to sentencing, a defendant convicted of DUI-highest rate of alcohol

is required to undergo both a Court Reporting Network (CRN) evaluation for

alcohol abuse and drug use and a full assessment for drug and alcohol

addiction.13 See 75 Pa.C.S. §§ 3814(2)(ii)(B), 3816(a), (b). “[T]his Court

has held that the trial court is statutorily required to order the drug and alcohol

evaluation before sentencing.” Commonwealth v. Westlake, 295 A.3d

1281, 1289 (Pa. Super. 2023) (citing Commonwealth v. Borovichka, 18

A.3d 1242, 1255 (Pa. Super. 2011); 75 Pa.C.S. § 3814).

Our Supreme Court has explained that a sentence imposed without

these evaluations constitutes an illegal sentence. See Commonwealth v.

Taylor, 104 A.3d 479, 493 (Pa. 2014) (holding “that a sentencing court has

no discretion or authority to impose a sentence for a DUI violation prior to

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13 A full drug and alcohol assessment is also statutorily mandated when the

CRN evaluation recommends that one be performed or where the defendant

has previously been sentenced for DUI within the last ten years. See 75

Pa.C.S. § 3814(2)(i)(A), (2)(ii)(A). Here, both of these conditions are also

present. See CRN Report, 4/25/24 (recommending a full alcohol and drug

assessment; N.T. Sentencing Hr’g, 6/17/24, at 29-30 (Appellant has five prior

DUI convictions within the last ten years); PSI, 5/20/24, at 5 (unpaginated)

(indicating that Appellant’s most recent prior DUI conviction was from 2020).

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the completion of the Assessment required by Section 3814” (emphasis

added)); see also Westlake, 295 A.3d at 1289-90.

Lastly, Section 3804 provides, in relevant part:

A sentence imposed upon an individual under this section who has

two or more prior offenses shall be served consecutively to any

other sentence the individual is serving and to any other sentence

being then imposed by the court, except for those with which the

offense must merge as a matter of law.

75 Pa.C.S. § 3804(c.2); see also Commonwealth v. Kolesar, 324 A.3d 578,

581 (Pa. Super. 2024) (stating that “Subsection 3804(c.2) unambiguously

requires that the court impose consecutive sentences for a defendant’s third

and subsequent DUI convictions of any offense listed in Section 3804”).

Here, the record reflects that at the time of sentencing, a drug and

alcohol evaluation for Appellant had not been requested nor completed. See

PSI, 5/20/24, at 3 (unpaginated) (stating “DA Evaluation not performed”

(emphasis omitted)); Guideline Sentence Form, 6/25/24 (the box for “no” is

marked next to “D&A Eval./Full”).

Further, Appellant has five prior DUI convictions. See N.T. Sentencing

Hr’g, 6/17/24, at 29-30 (Appellant has five prior DUI convictions, including

ones from 2015, 2018, and 2020); PSI, 5/20/24, at 4-5 (unpaginated). The

trial court acknowledged that it could not impose concurrent sentences with

respect to Appellant’s DUI conviction. See N.T. Sentencing Hr’g, 6/17/24, at

26-27. However, the trial court ordered that Appellant’s sentence for driving

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under suspension would run consecutive to the sentence for DUI. See

Sentencing Order, 972-2023, 6/19/24, at 2. Furthermore, as stated above,

the trial court ordered that the sentence for strangulation at Docket No. 984-

2023 run consecutive to the sentences imposed at Docket No. 972-2023, and

the sentence for intimidation of witnesses to run consecutive to the

strangulation sentence. See Sentencing Order, 984-2023, 6/19/24, at 2.

Lastly, the sentence for simple assault at Docket No. 973-2023 is consecutive

to the sentences imposed at Docket No. 984-2023. See Sentencing Order,

973-2023, 6/19/24, at 2.

In other words, the trial court ordered that Appellant shall serve the

sentences for his convictions in the following order: DUI, driving under

suspension, strangulation, intimidation of witnesses, and simple assault.

However, Section 3804(c.2) requires that a sentence for third or subsequent

DUI conviction run consecutive “to any other sentence being then imposed by

the court[.]” 75 Pa.C.S. § 3804(c.2). Therefore, we conclude Appellant’s

sentences for DUI and driving under suspension at Docket No. 972 and

Appellant’s sentence for strangulation at Docket No. 984-2023 are illegal

insofar as the order in which Appellant must serve these sentences is

inconsistent with the requirement that Appellant must serve his DUI sentence

last. See 75 Pa.C.S. § 3804(c.2); Kolesar, 324 A.3d at 581.

Where the trial court has imposed consecutive sentences and this Court

vacates the sentence for one or more counts, this Court’s “disposition has

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disturbed the trial court’s overall sentencing scheme[;]” therefore, this Court

will vacate the entire judgment of sentence and remand for resentencing.

Commonwealth v. Tanner, 61 A.3d 1043, 1048 (Pa. Super. 2013); see also

Commonwealth v. Vanderlin, 580 A.2d 820, 831 (Pa. Super. 1990) (stating

that “[i]f a trial court errs in its sentence for one count in a multi-count case,

then all sentences for all counts will be vacated so that the court can re-

structure its entire sentencing scheme” (citation omitted)).

For these reasons, we affirm Appellant’s convictions, however, we are

constrained to vacate Appellant’s judgments of sentence and remand for

resentencing consistent with this memorandum. See Tanner, 61 A.3d at

1048; Vanderlin, 580 A.2d at 831.

On remand, the trial court shall order that Appellant be evaluated

pursuant to Sections 3814 of the Motor Vehicle Code and make the results

part of the record. See Westlake, 295 A.3d at 1290. Upon making those

findings part of the record, the trial court shall resentence Appellant consistent

with the terms of Section 3804(d) of the Motor Vehicle Code. See 75 Pa.C.S.

§ 3804(d). Further, the trial court shall impose a sentence for DUI that is

consecutive to all other sentences that the trial court imposes at resentencing.

See 75 Pa.C.S. § 3804(c.2). Accordingly, while we affirm Appellant’s

convictions, we vacate his judgments of sentence. See Warunek, 279 A.3d

at 54; see also Tanner, 61 A.3d at 1048; Vanderlin, 580 A.2d at 831.

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Judgments of sentence vacated. Case remanded for resentencing

consistent with this memorandum. Petitions to withdraw denied. Request to

supplement the record denied. Jurisdiction relinquished.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 5/21/2025

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