Case Information
*1 NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA Appellee
v.
ROBERT LEE
Appellant No. EDA 2015 Appeal from the Judgment of Sentence August 21, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP- 51 -CR- 0000933 -2014 BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.* FILED OCTOBER MEMORANDUM BY STEVENS, P.J.E.:
Robert Lee ( "Appellant ") appeals from the judgment of sentence entered the Court of Common Pleas of Philadelphia entered after he pled to possession controlled substance with intent deliver ( "PWID "), criminal conspiracy, handgun by person prohibited from having one ( "VUFA "). Sentenced to downward departure, concurrent terms of three -and -one -half to seven years' incarceration with five -year probationary tail upon court's order granting motion for reconsideration, Appellant challenges the sufficiency of the evidence offered support the charges, the sentence, adequacy of representation. Appellate * Former Justice specially assigned the Superior Court.
petition from representation and accompanying California, U.S. pursuant (1967), Santiago, 978 A.2d 349 2009). We grant and affirm. On August 30, 2013, Appellant sold Oxycodone and Xanax pills to informant while under police surveillance, answered confidential subsequent drug- related phone call made by police, was found of more pills, large amount of currency, the cellular phone used arrange the controlled buy during search incident his arrest. A subsequent search of the home he had exited prior the controlled buy disclosed loaded, operable firearms cache of Oxycodone. N.T. 6/10/15 at 6 -9. On June 10, 2015, Appellant pled above charges acknowledged under oath his voluntary, informed, Id. at 8 -9. The court initially sentenced Appellant to intelligent. concurrent, below- mitigated range sentences of four ten year sentences but, September 18, 2015, granted Appellant's motion for reconsideration three -and -one -half to seven years' reduced sentence to incarceration. Appellant no post- sentence motion revised sentence but, instead, filed timely direct appeal.
On October 2015, the appointed present counsel to represent informed newly- appointed that wished to challenge the sufficiency of the evidence offered support weapons charge against him, neither owned nor resided home
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in which contraband recovered. He sought to advance the claim that counsel rendered assistance of counsel in advising him to plead in failing inform him a new post- sentence motion for reconsideration of sentence would required challenge the court's revised sentence. On November 2, 2015, however, counsel filed statement intent file an Anders brief, averring review of the entire record pertinent authority relevant issues led him to conclude there are no meritorious, non -frivolous issues to raise appeal.
By way of our March 29, per curiam order, we denied counsel's withdraw accompanying Anders brief for non- initial petition compliance with procedures set forth Santiago. On April 2016, compliance with our order, counsel re- petitioned this Court as counsel submitted new Anders brief.
We do not consider the merits of issue raised an Anders without reviewing request withdraw. v. Cartrette, A.3d 1030 (Pa.Super. 2013) (en banc). In order be withdraw, counsel must meet three procedural requirements: 1) file leave to state that, after making conscientious examination of the record, has concluded frivolous; provide copy of the brief the defendant; and 3) inform the defendant right retain private counsel or raise, pro se, additional arguments defendant deems worthy of court's attention. Id. *4 to withdraw conforms
Counsel's petition to the procedural requirements of Anders. The indicates he reviewed the record and, based on that review, determined that this appeal is totally frivolous. It also indicates that counsel mailed copy of the motion and the Appellant that he informed Appellant right hire counsel, represent himself in appeal, or write the raising any additional points which believes are worthy of the court's attention. A letter to Appellant is attached the motion withdraw, it confirms that Appellant received copy of the documents in question told about right to proceed with private or pro se.
We now examine the briefing requirements when counsel seeks to Pursuant Santiago, an brief must: (1) provide summary of the procedural history facts, with citations the record; (2) refer anything in the record that counsel believes arguably supports the appeal; (3) set forth counsel's conclusion the appeal frivolous; (4) state reasons concluding appeal frivolous. Counsel should articulate relevant facts of record, controlling law, and /or statutes point have case led to conclusion frivolous.
Santiago, supra at 361.
Appellant's brief satisfies the mandates of Santiago. It sets forth the procedural factual history matter. Counsel then addresses each issue wishes raise, acknowledges denies of weapons recovered home which did not reside, discusses why under existing authority Appellant's claims are either
J-S74003-16 *5 frivolous, waived, or must be deferred until collateral review. Thus, we determine counsel should be withdraw.
Accordingly, we will proceed to examine the appeal make an independent determination whether it wholly frivolous. The Anders brief identifies Appellant's assertion insufficient evidence supported VUFA charge where did not reside at the house searched and, therefore, could not have possessed guns located therein. Relatedly, asserts counsel was ineffective for advising him to plead guilty on charge. To extent issue presents challenge sufficiency of the evidence, our cases state that "by entering guilty plea, the defendant waives his right challenge direct appeal all nonjurisdictional defects except the legality of the sentence validity of the plea." Commonwealth v. Lincoln, 72 A.3d 609 (Pa. Super. 2013) (citation omitted), denied, A.3d 319 (Pa. 2014). Appellant, therefore, waived sufficiency of the evidence claim when he pled guilty VUFA.
Regarding Appellant's ineffectiveness claim tied counsel's advisement should plead VUFA, claim must deferred collateral review pursuant the dictates of our Supreme Court in Commonwealth Grant, 813 A.2d 726 2002), wherein our Supreme Court held claim of ineffective assistance cannot be entertained See Barnett, A.3d 371, 377 (Pa.Super. (en banc) (pursuant Grant's refinement
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Commonwealth v. Liston, 977 A.2d 1089 (Pa. 2009), Commonwealth v. Wright, 961 A.2d n. 22 2008), the Superior Court is not review assistance of counsel claims appeal unless defendant has expressly, knowingly, voluntarily waived PCRA review). contends below- mitigated range, three -and-
one -half to seven -year sentence is excessive reflects an abuse of the sentencing court's discretion. "A challenge to the aspects of a sentence must be considered a petition for permission to appeal, as right pursue such a claim not absolute." Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa.Super.2007) (citation omitted). In order reach merits of a claim, this Court must determine:
(1) Whether appellant has timely notice of appeal; (2) whether issue was properly preserved at sentencing or (3) whether motion reconsider modify sentence; appellant's brief has fatal defect; (4) whether there substantial question the sentence appealed from not appropriate under the Sentencing Code.
Commonwealth Dunphy, A.3d 1215, 1220 (Pa.Super. 2011) (footnotes omitted).
Here, failed to preserve issue with either objection before the sentencing or timely post- sentence motion. Therefore, he waived claim. See Mann, 820 A.2d 788, (Pa.Super. (citation omitted) ( "[I]ssues challenging the discretionary sentencing must raised post- sentence motion or by raising
J-S74003-16 *7 claim during the sentencing proceedings. Absent efforts, an objection discretionary aspect sentence waived. ").
Appellant's remaining issue goes failure preserve challenge sentence. As noted above, however, we must defer resolution of this assistance of counsel claim to collateral review pursuant the dictates of Grant and its progeny.
Judgment of sentence affirmed. Petition to representation granted. Judgment Entered.
/
J seph D. Seletyn,
Prothonotary
Date: 10/24/2016