Com. v. Cheung, J.

• Court: Superior Court of Pennsylvania
• Decided: August 19, 2025
• Docket: 3241 EDA 2024
• Status: Unpublished

Opinion

J-S25031-25 J-S25032-25 J-S25033-25 J-S25034-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAI CHEUNG : : Appellant : No. 3241 EDA 2024

Appeal from the Judgment of Sentence Entered October 31, 2024 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0000472-2019

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAI HASSAN CHEUNG : : Appellant : No. 436 EDA 2025

Appeal from the Judgment of Sentence Entered October 31, 2024 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0001161-2022

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAI HAE SON CHEUNG : : Appellant : No. 437 EDA 2025

Appeal from the Judgment of Sentence Entered October 31, 2024 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0001790-2022 J-S25031-25 J-S25032-25 J-S25033-25 J-S25034-25

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAI HAE CHEUNG : : Appellant : No. 438 EDA 2025

Appeal from the Judgment of Sentence Entered October 31, 2024 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0001110-2023 CP-15-CR-0001161-2022 CP-15-CR-0001790-2022

BEFORE: PANELLA, P.J.E., DUBOW, J., and BENDER, P.J.E.

MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 19, 2025

In these four appeals, which we consolidate herein, Appellant challenges

the judgment of sentence imposed by the trial court across four separate

cases, after Appellant pled guilty in three of the cases and had his probation

revoked and was resentenced in the fourth case. On appeal, Appellant seeks

to challenge his sentence on the basis that his plea agreement called for

concurrent, rather than consecutive, terms of incarceration. Additionally,

Appellant’s counsel, Scott J. Werner, Esq., seeks to withdraw his

representation of Appellant pursuant to Anders v. California, 386 U.S. 738

(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).1 After ____________________________________________

1 We note that Appellant was represented by different counsel during the guilty

plea, revocation and sentencing/resentencing proceedings. Attorney Werner was appointed to represent Appellant after he was sentenced/resentenced on October 31, 2024.

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

petition to withdraw.

The facts underlying Appellant’s convictions are not germane to his

instant appeals. We only note that on October 31, 2024, Appellant pled guilty

in cases CP-15-CR-0001161-2022 (hereinafter “case 1161-2022”), CP-15-CR-

0001790-2022 (hereinafter “case 1790-2022”), and CP-15-CR-0001110-2023

(hereinafter “case 1110-2023”), to robbery, criminal conspiracy to commit

burglary, receiving stolen property, and criminal conspiracy to commit theft

by unlawful taking. The court imposed concurrent sentences across these

three cases, resulting in an aggregate term of 7½ to 15 years’ incarceration.

That same day, the term of probation Appellant was serving for his

conviction of possession with intent to deliver in case CP-15-CR-0000472-

2019 (hereinafter “case 472-2019”) was revoked based on his new convictions

in the other three cases. The court resentenced Appellant to time-served to

23 months’ incarceration, and imposed this sentence to run consecutively to

Appellant’s sentences in his other three cases.

Appellant filed an identical, timely, post-sentence motion in cases 1161-

2022, 1790-2022, and 1110-2023, arguing that his guilty plea included an

agreement for a concurrent term of incarceration in case 472-2019, which had

been violated when the court imposed a consecutive term of incarceration in

that case. Notably, Appellant did not seek to withdraw his guilty pleas in cases

1161-2022, 1790-2022, and 1110-2023, but instead asked for

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“reconsideration of his sentence.” Post-Sentence Motion, 10/31/24, at 2.

However, the consecutive sentence Appellant was asking the court to

reconsider was imposed in case 472-2019. It does not appear from the record

that Appellant filed any post-sentence motion in that case.

On February 11, 2025, the trial court issued an order denying

Appellant’s post-sentence motion filed in cases 1161-2022, 1790-2022, and

1110-2023. Appellant filed a timely notice of appeal on February 14, 2025.

Appellant also filed a timely notice of appeal in case 472-2019. The trial court

thereafter ordered Appellant to file Pa.R.A.P. 1925(b) concise statements of

errors complained of on appeal in each case. In response, Attorney Werner

filed, in cases 1161-2022, 1790-2022, and 1110-2023, statements of his

intent to file a petition to withdraw and Anders brief under Pa.R.A.P.

1925(c)(4). Additionally, in case 472-2019, Attorney Werner filed a concise

statement, setting forth a single issue challenging the court’s imposition of a

consecutive sentence in that case as violating the terms of his plea agreement

in cases 1161-2022, 1790-2022, and 1110-2023. See Concise Statement,

12/24/24, at 1 (unnumbered). The trial court subsequently filed Rule 1925(a)

opinions in Appellant’s cases.

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Attorney Werner thereafter filed petitions to withdraw and Anders briefs

in each of Appellant’s four underlying cases.2 Therein, counsel claims that

“Appellant seeks to raise the legality of the sentence imposed due to the trial[

c]ourt[’s] failing to abide by an alleged agreement whereby all sentences,

including the violation sentence, were to run concurrent to each other.”

Anders Brief 1 at 13; Anders Brief 2 at 11. Additionally, in cases 1161-2022,

1790-2022, and 1110-2023, Appellant also seeks to “aver that trial and

[revocation] counsel, Brian McCarthy, Esquire, was ineffective for not advising

him properly of the impact of the [probation revocation] to his guilty plea.”

Anders Brief 1 at 20.

Attorney Werner concludes that these issues are frivolous, and that

Appellant has no other, non-frivolous issues he could pursue herein.

Accordingly,

this Court must first pass upon counsel’s petition to withdraw before reviewing the merits of the underlying issues presented by [the appellant]. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc).

Prior to withdrawing as counsel on a direct appeal under Anders, counsel must file a brief that meets the requirements established by our Supreme Court in Santiago. The brief must:

____________________________________________

2 Counsel’s petitions to withdraw and Anders briefs are identical in cases 1161-2022, 1790-2022, and 1110-2023. Attorney Werner’s petition to withdraw and Anders brief is slightly different in case 472-2019. We will use the citation “Anders Brief 1” when referring to the briefs filed in cases 1161- 2022, 1790-2022, and 1110-2023, and “Anders Brief 2” when referring to the brief filed in case 472-2019.

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(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. Counsel also must provide a copy of the Anders brief to his client. Attending the brief must be a letter that advises the client of his right to: “(1) retain new counsel to pursue the appeal; (2) proceed pro se on appeal; or (3) raise any points that the appellant deems worthy of the court[’]s attention in addition to the points raised by counsel in the Anders brief.” Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007)….

Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014). After

determining that counsel has satisfied these technical requirements of Anders

and Santiago, this Court must then “conduct a simple review of the record to

ascertain if there appear[s] on its face to be arguably meritorious issues that

counsel, intentionally or not, missed or misstated.” Commonwealth v.

Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en banc).

In this case, Attorney Werner’s Anders briefs comply with the above-

stated requirements. Namely, he includes a summary of the relevant factual

and procedural history, he refers to portions of the record that could arguably

support Appellant’s claims, and he sets forth his conclusion that Appellant’s

appeal is frivolous. He also explains his reasons for reaching that

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determination, and supports his rationale with citations to the record and

pertinent legal authority. Attorney Werner also states in his petitions to

withdraw that he has supplied Appellant with copies of his Anders briefs.

Additionally, he attached a letter directed to Appellant to his petitions to

withdraw and Anders briefs, in which he informed Appellant of the rights

enumerated in Nischan. Accordingly, counsel has complied with the technical

requirements for withdrawal. We will now independently review the record to

determine if Appellant’s issues are frivolous, and to ascertain if there are any

other, non-frivolous issues he could pursue on appeal.

Appellant seeks to argue that he entered his guilty plea in cases 1161-

2022, 1790-2022, and 1110-2023 with the agreement that he would receive

concurrent sentences across not only each of those cases, but also in his

probation-revocation case at 472-2019. According to Appellant, the court

violated that agreement and imposed an illegal sentence by imposing a

consecutive term of incarceration in case 472-2019.

Initially, Appellant’s claim that he was sentenced in violation of his plea

agreement does not implicate the legality of his sentence and, thus, it is

waivable. See Commonwealth v. Berry, 877 A.2d 479, 484 (Pa. Super.

2005) (holding that a claim that the defendant was sentenced in violation of

his plea agreement does not implicate the legality of his sentence, and that

Berry’s challenge to his sentence on that basis was waived). After reviewing

the records in each of Appellant’s four cases, we conclude that Appellant has

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waived his sentencing challenge. Notably, Appellant is specifically challenging

the court’s imposition of a consecutive sentence in case 472-2019. A claim

that the trial court erred by imposing consecutive, rather than concurrent,

sentences constitutes a challenge to the discretionary aspects of sentencing.

See Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010)

(“Under 42 Pa.C.S.[] § 9721, the court has discretion to impose sentences

consecutively or concurrently….”). “[I]ssues challenging the discretionary

aspects of a sentence must be raised in a post-sentence motion or by

presenting the claim to the trial court during the sentencing

proceedings. Absent such efforts, an objection to a discretionary aspect of a

sentence is waived.” Commonwealth v. Griffin, 65 A.3d 932, 936 (Pa.

Super. 2013) (citation omitted). Here, Appellant did not file a post-sentence

motion in case 472-2019 asking for the court to reconsider his consecutive

sentence and impose a term to run concurrently with his sentences in cases

1161-2022, 1790-2022, and 1110-2023. Accordingly, his challenge to that

consecutive sentence herein is waived. 3 ____________________________________________

3 Additionally, we reiterate that Appellant did not seek to withdraw his guilty

pleas in his post-sentence motion filed in cases 1161-2022, 1790-2022, and 1110-2023. Thus, he cannot now allege that his plea agreement was violated on direct appeal. See Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived and cannot be raised for the first time on appeal.”); Commonwealth v. Lincoln, 72 A.3d 606, 611 (Pa. Super. 2013) (finding that the appellant could not obtain review of his challenge to his guilty plea “because he failed to preserve it properly by either objecting during the plea (Footnote Continued Next Page)

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In any event, even if not waived, we would agree with Attorney Werner

that Appellant’s claim is frivolous. As counsel explains:

Upon review of the written guilty plea colloquy at [cases] … 1161- 2022, … 1790-2022, and … 1110-2023, there was an agreement that the sentences of those cases would run concurrent to each other. However, there is no mention of whether the sentences of [cases] … 1161-2022, … 1790-2022, and … 1110-2023 would run concurrent to the violation of probation matter at [case] … 472- 20[1]9. In fact, on Page 8 of the written guilty plea colloquy, … Appellant acknowledged and initialed the following:

“I am presently on probation or parole, and I understand that this guilty plea will result in a violation of that probation or parole, and that I may be separately sentenced for that violation or probation or parole.”

Guilty Plea Colloquy[, 4/9/24, at 8] … ¶ 33b.

On October 31, 2024, during the sentencing hearing at [cases] … 1161-2022, … 1790-2022, and … 1110-2023[,] and the violation hearing at … 47[2]-2019, [the trial court] confirmed on the record as follows:

“Then there was a further agreement placed on the record that all three cases [1161-2022, 1790-2022, and 1110- 2023] are to be sentenced with concurrent sentences.”

N.T.[, 10/31/24,] at … 4….

After the Appellant was sentenced at [cases] … 1161-2022, … 1790-2022, and … 1110-2023, [the trial court] moved into the violation hearing. During the violation hearing, counsel for the Appellant asked the court to run his violation concurrent with his new sentences at [cases] … 1161-2022, … 1790-2022, and … 1110-2023. [Id.] … at … 58….

colloquy or filing a post-sentence motion to withdraw the plea”) (citing Pa.R.Crim.P. 720(B)(1)(a)(i)).

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In response, the Attorney for the Commonwealth opposed a concurrent sentence and noted that there was no agreement about the violation of probation. [Id.] [(Commonwealth’s stating: “There was no agreement about the violation of probation. There was nothing stated in the record about concurrent time at the time that the original plea was anticipated.”)]. At no time during the violation of probation hearing prior to [the court’s] sentence[, or] … after the Attorney for the Commonwealth’s statement that there was no agreement for the violation, did Appellant’s counsel argue that there was an agreement for a concurrent sentence.

Once again, after rendering [its] sentence for the violation, [the trial court] made clear on the record that that [the] plea agreement did not contemplate the violation and there was no agreement regarding the violations being concurrent. [Id. at] 62 [(the court’s stating: “The agreement at the plea did not contemplate the violation. It contemplated concurrent sentences on the three cases to which he was pleading. There was no agreement with regard to the violations being concurrent.”)].

Counsel for the Appellant conceded that point when he responded to the court by saying that there was never any contemplation that the violation would run consecutively. [Id.]

It is crystal clear from the record that there was no agreement to run the Appellant’s violation sentence at [case] … 47[2]-2019 with his new convictions at [cases] … 1161-2022, … 1790-2022, and … 1110-2023. The [trial c]ourt abided by 42 Pa.C.S.[] § 9771 and sentenced … Appellant to a legal sentence.

Anders Brief 1 at 17-20; Anders Brief 2 at 15-18.

After reviewing the record and sentencing transcript, we would agree

with Attorney Werner that there was no agreement for a concurrent sentence

in case 472-2019. Therefore, even if not waived, we would conclude that

Appellant’s sentencing challenge is frivolous.

Likewise, we would deem frivolous Appellant’s attempt to raise an

ineffective-assistance-of-counsel claim in cases 1161-2022, 1790-2022, and

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1110-2023. According to Attorney Werner, Appellant seeks to argue that his

trial counsel, Attorney McCarthy, “was ineffective for not advising him properly

of the impact of the [probation violation] to his guilty plea.” Anders Brief 1

at 20. Attorney Werner concludes that “the record does not support this

claim,” and also notes that “[t]he general rule is that claims of ineffective

assistance of counsel are to be deferred to … review” under the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.

We agree with counsel that it is improper for Appellant to raise his

ineffectiveness claim on direct appeal. In Commonwealth v. Holmes, 79

A.3d 562 (Pa. 2013), our Supreme Court reaffirmed its prior holding in

Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), that, absent certain

circumstances, claims of ineffective assistance of counsel should be deferred

until collateral review under the PCRA. Holmes, 79 A.3d at 576. The specific

circumstances under which ineffectiveness claims may be addressed on direct

appeal are not present in the instant case. See id. at 577-78 (holding that

the trial court may address claim(s) of ineffectiveness where they are “both

meritorious and apparent from the record so that immediate consideration

and relief is warranted,” or where the appellant’s request for review of “prolix”

ineffectiveness claims is “accompanied by a knowing, voluntary, and express

waiver of PCRA review”). Thus, Appellant’s raising an ineffectiveness claim

herein is frivolous.

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In sum, we agree with Attorney Werner that the issues Appellant seeks

to raise on appeal are either waived and/or frivolous. Additionally, our review

of the record does not reveal any other, non-frivolous claims that Appellant

could assert herein. Therefore, we affirm his judgment of sentence and grant

counsel’s petition to withdraw.

Judgment of sentence affirmed. Petition to withdraw granted.

Date: 8/19/2025

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