326 MDA 2025
Pa. Super. Ct.Sep 2, 2025Background
- On Sept. 19, 2024, Joaquin Berrun entered an open nolo contendere plea to multiple charges including two counts each of rape by forcible compulsion and involuntary deviate sexual intercourse (IDSI), plus strangulation, aggravated indecent assault, unlawful restraint, terroristic threats, possession of an instrument of a crime, simple assault, possession of a controlled substance, and drug paraphernalia possession.
- The factual basis admitted at plea described separate acts: two incidents of forcible vaginal penetration, one anal penetration, one oral penetration, forcible digital/penile anal penetration, and choking with a vacuum extension while threatening to kill the victim; police later found a bag of cocaine.
- Sentencing was deferred; on Jan. 6, 2025 the trial court imposed an aggregate term of 13.5 to 27 years' incarceration plus five years’ consecutive probation (specific counts ran concurrently or consecutively as detailed in the opinion).
- Post-sentence motion to modify sentence was denied; Berrun timely appealed and counsel filed an Anders brief and petition to withdraw.
- The Superior Court evaluated counsel’s compliance with Anders and Santiago, reviewed three appellate issues raised in the Anders brief (validity of plea, legality/merger of sentences, discretionary aspects of sentencing), and performed its independent review for non-frivolous issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Anders withdrawal compliance | Counsel contends appeal is frivolous and followed Anders/Santiago procedures | Berrun could oppose or raise additional issues (letter advised) | Court: Counsel complied with Anders/Santiago; petition to withdraw granted |
| Validity of nolo contendere plea | Berrun argues plea colloquy failed to advise re: enhanced penalty for second/subsequent drug possession and fines | Trial court record shows plea entered; but Berrun did not object at colloquy or file within 10 days of sentencing | Waived for failure to preserve; claim frivolous |
| Legality of sentence — merger of rape and IDSI | Berrun argues rape and IDSI should have merged | Commonwealth/trial court: each act described distinct incidents (two vaginal assaults, separate anal and oral acts) | Crimes arose from multiple distinct acts; no merger; claim frivolous |
| Discretionary aspects of sentencing | Berrun argues court failed to adequately weigh mitigating evidence and should have imposed concurrent, lower-end sentences | Trial court relied on PSI, mitigation testimony, risk assessment, and brutality of offenses; structured sentence for treatment access | No abuse of discretion; court considered factors; claim frivolous |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (establishes procedures when counsel seeks to withdraw on appeal because client’s appeal is frivolous)
- Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009) (specifies contents required in an Anders brief in Pennsylvania)
- Commonwealth v. Lincoln, 72 A.3d 606 (Pa. Super. 2013) (claims attacking plea voluntariness must be raised at colloquy or by motion within ten days of sentencing)
- Commonwealth v. Baldwin, 985 A.2d 830 (Pa. 2009) (articulates statutory merger test for sentencing purposes)
- Commonwealth v. Leaner, 202 A.3d 749 (Pa. Super. 2019) (explains single criminal act analysis for merger: multiple distinct acts preclude merger)
- Commonwealth v. Dempster, 187 A.3d 266 (Pa. Super. 2018) (court must independently review record for non-frivolous issues after Anders brief)
- Commonwealth v. Miller, 275 A.3d 530 (Pa. Super. 2022) (where sentencing court has PSI, appellate court presumes it considered relevant sentencing factors)
- Commonwealth v. Swope, 123 A.3d 333 (Pa. Super. 2015) (challenge that sentencing court failed to consider mitigation can present a substantial question)