Com. v. Carter, D.

• Court: Superior Court of Pennsylvania
• Decided: March 17, 2023
• Docket: 1009 MDA 2022
• Status: Unpublished

Opinion

J-S02028-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DANTE C. CARTER : : Appellant : No. 1009 MDA 2022

Appeal From the Judgment of Sentence Entered June 10, 2022 In the Court of Common Pleas of Huntingdon County Criminal Division at No(s): CP-31-CR-0000598-2020

BEFORE: PANELLA, P.J., OLSON, J., and DUBOW, J.

MEMORANDUM BY OLSON, J.: FILED: MARCH 17, 2023

Appellant, Dante C. Carter, appeals from the judgment of sentence

entered on June 10, 2022, as made final by the denial of Appellant’s

post-sentence motion on June 21, 2022. On this direct appeal, Appellant’s

counsel has filed both a petition for leave to withdraw as counsel and an

accompanying brief pursuant to Anders v. California, 386 U.S. 738 (1967)

and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We conclude

that Appellant’s counsel has complied with the procedural requirements

necessary to withdraw. Moreover, after independently reviewing the record,

we conclude that the instant appeal is wholly frivolous. We, therefore, grant

counsel’s petition for leave to withdraw and affirm Appellant’s judgment of

sentence.

As the trial court explained: J-S02028-23

[Appellant] is an inmate serving a life sentence in the custody of the Pennsylvania Department of Corrections. On June 10, 2022, he was convicted, via pleas of nolo contendere, of one count each of assault by prisoner, strangulation, and aggravated assault.[1] The charges arose out of an incident that occurred at SCI-Huntingdon on August 13, 2018, in which [Appellant] twice engaged in physical combat with corrections officers. [Appellant] was sentenced on the same day that he entered his pleas, resulting in a sentence of 84-168 months' incarceration on the first count, 12-24 months' incarceration on the second count, and 15-30 months' incarceration on the third count, to be served concurrently [with Appellant’s life sentence].

Trial Court Opinion, 8/30/22, at 1 (footnote and some capitalization omitted).

The trial court denied Appellant’s post-sentence motion on June 21,

2022 and Appellant filed a timely notice of appeal. On appeal, Appellant’s

counsel filed a petition for leave to withdraw and counsel accompanied this

petition with an Anders brief.

Before reviewing the merits of this appeal, this Court must first

determine whether counsel has fulfilled the necessary procedural

requirements for withdrawing as counsel. Commonwealth v. Miller, 715

A.2d 1203, 1207 (Pa. Super. 1998).

To withdraw under Anders, counsel must satisfy certain technical

requirements. First, counsel must “petition the court for leave to withdraw

stating that, after making a conscientious examination of the record, counsel

has determined that the appeal would be frivolous.” Miller, 715 A.2d at 1207.

Second, counsel must file an Anders brief, in which counsel:

____________________________________________

1 18 Pa.C.S.A. §§ 2704, 2718(a)(1), and 2702(a)(3), respectively.

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(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.

Finally, counsel must furnish a copy of the Anders brief to his or her

client and advise the client “of [the client’s] right to retain new counsel,

proceed pro se or raise any additional points worthy of this Court’s attention.”

Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007).

If counsel meets all of the above obligations, “it then becomes the

responsibility of the reviewing court to make a full examination of the

proceedings and make an independent judgment to decide whether the appeal

is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5; see also

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

banc) (holding that the Anders procedure requires this Court to review “the

entire record with consideration first of the issues raised by counsel. . . .

[T]his review does not require this Court to act as counsel or otherwise

advocate on behalf of a party. Rather, it requires us only to conduct a review

of the record to ascertain if[,] on its face, there are non-frivolous issues that

counsel, intentionally or not, missed or misstated. We need not analyze those

issues of arguable merit; just identify them, deny the motion to withdraw, and

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order counsel to analyze them”). It is only when all of the procedural and

substantive requirements are satisfied that counsel will be permitted to

withdraw.

In the case at bar, counsel complied with all of the above procedural

obligations. We must, therefore, review the entire record and analyze whether

this appeal is, in fact, wholly frivolous. Our analysis begins with the claims

raised in the Anders brief:

[1.] Whether the trial court erred in dismissing [Appellant’s] post-sentence motion in the form of a preliminary objection of [Appellant] to [the Commonwealth’s] complaint and criminal procedure?

[2.] Whether the trial court erred in dismissing [Appellant’s] post-sentence motion in the form of a petition for warrant in lieu of habeas corpus without a hearing?

[3.] Whether claims of ineffective assistance of counsel should be presented in a collateral proceeding?

Appellant’s Brief at 3 (some capitalization omitted).

Appellant’s first two claims are grounded in his belief that he, personally,

enjoys sovereign immunity from all criminal prosecution and that the court of

common pleas thus lacked jurisdiction over Appellant’s person. This claim is

frivolous, as Appellant is not a sovereign.

Finally, Appellant claims that his trial counsel was ineffective. This claim

is unreviewable on direct appeal. Commonwealth v. Grant, 813 A.2d 726,

738 (Pa. 2002) (“as a general rule, a [defendant] should wait to raise claims

of ineffective assistance of trial counsel until collateral review”);

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Commonwealth v. Holmes, 79 A.3d 562, 620 (Pa. 2013) (“absent [certain,

specified] circumstances [(that are inapplicable to the case at bar)] claims of

ineffective assistance of counsel are to be deferred to PCRA review; trial courts

should not entertain claims of ineffectiveness upon post-verdict motions; and

such claims should not be reviewed upon direct appeal”). Appellant's

ineffective assistance of counsel claim is thus frivolous.

We have independently considered the issues raised within Appellant’s

brief and we have determined that the claims are frivolous. In addition, after

an independent review of the entire record, we see nothing that might

arguably support this appeal. The appeal is therefore wholly frivolous.

Accordingly, we affirm Appellant’s judgment of sentence and grant counsel’s

petition for leave to withdraw.

Petition for leave to withdraw appearance granted. Judgment of

sentence affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 03/17/2023

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