J-S74003-16
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. 2948 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.*
MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 24, 2016
Robert Lee ( "Appellant ") appeals from the judgment of sentence
entered in the Court of Common Pleas of Philadelphia entered after he pled
guilty to possession of a controlled substance with intent to deliver
( "PWID "), criminal conspiracy, and possession of a handgun by a person
prohibited from having one ( "VUFA "). Sentenced to downward departure,
concurrent terms of three -and -one -half to seven years' incarceration with a
five -year probationary tail upon the court's order granting his motion for
reconsideration, Appellant challenges the sufficiency of the evidence offered
to support the charges, the discretionary aspects of his sentence, and the
adequacy of plea counsel's representation. Appellate counsel has filed a
* Former Justice specially assigned to the Superior Court. J-S74003-16
petition to withdraw from representation 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 grant
counsel's petition to withdraw and affirm.
On August 30, 2013, Appellant sold Oxycodone and Xanax pills to a
confidential informant while under police surveillance, answered a
subsequent drug- related phone call made by police, and was found in
possession of more pills, a large amount of currency, and the cellular phone
used to arrange the controlled buy during a search incident to his arrest. A
subsequent search of the home he had exited prior to the controlled buy
disclosed loaded, operable firearms and a cache of Oxycodone. N.T.
6/10/15 at 6 -9. On June 10, 2015, Appellant pled guilty to the above
charges and acknowledged under oath that his plea was voluntary, informed,
and intelligent. Id. at 8 -9. The court initially sentenced Appellant to
concurrent, below- mitigated range sentences of four to ten year sentences
but, on September 18, 2015, granted Appellant's motion for reconsideration
and reduced his sentence to three -and -one -half to seven years'
incarceration. Appellant filed no post- sentence motion to his revised
sentence but, instead, filed this timely direct appeal.
On October 6, 2015, the court appointed present counsel to represent
Appellant on direct appeal. Appellant informed newly- appointed counsel that
he wished to challenge the sufficiency of the evidence offered to support the
weapons charge against him, for he neither owned nor resided in the home
-2- J-S74003-16
in which contraband was recovered. He also sought to advance the claim
that plea counsel rendered ineffective assistance of counsel in advising him
to plead guilty and in failing to inform him that a new post- sentence motion
for reconsideration of sentence would be required to challenge the court's
revised sentence. On November 2, 2015, however, counsel filed a
statement of intent to file an Anders brief, averring that his review of the
entire record and pertinent authority on relevant issues led him to conclude
there are no meritorious, non -frivolous issues to raise on appeal.
By way of our March 29, 2016 per curiam order, we denied counsel's initial petition to withdraw and accompanying Anders brief for non-
compliance with procedures set forth in Santiago. On April 28, 2016, in
compliance with our order, counsel re- petitioned this Court to withdraw as
counsel and submitted a new Anders brief. We do not consider the merits of an issue raised in an Anders brief without first reviewing a request to withdraw. Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.Super. 2013) (en banc). In order to be
permitted to withdraw, counsel must meet three procedural requirements:
1) file a petition for leave to withdraw and state that, after making a
conscientious examination of the record, counsel has concluded that the
appeal is frivolous; 2) provide a copy of the Anders brief to the defendant;
and 3) inform the defendant that he has the right to retain private counsel
or raise, pro se, additional arguments that the defendant deems worthy of the court's attention. Id. -3 J-S74003-16
Counsel's petition to withdraw conforms to the procedural
requirements of Anders. The petition indicates he reviewed the record and,
based on that review, determined that this appeal is totally frivolous. It also
indicates that counsel mailed a copy of the motion to withdraw and the brief
to Appellant and that he informed Appellant of his right to hire counsel,
represent himself in this appeal, or write to the court raising any additional
points which he believes are worthy of the court's attention. A letter to
Appellant is attached to the motion to withdraw, and it confirms that
Appellant received a copy of the documents in question and was told about
his right to proceed with private counsel or pro se.
We now examine the briefing requirements when counsel seeks to
withdraw on direct appeal. Pursuant to Santiago, an Anders brief must:
(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, supra at 361. Appellant's brief satisfies the mandates of Santiago. It first sets forth
the procedural and factual history of this matter. Counsel then addresses
each issue Appellant wishes to raise, acknowledges that Appellant denies
possession of weapons recovered in a home in which he did not reside, and
discusses why under existing authority Appellant's claims are either
-4 J-S74003-16
frivolous, waived, or must be deferred until collateral review. Thus, we
determine that counsel should be permitted to withdraw.
Accordingly, we will proceed to examine the appeal and make an
independent determination of whether it is wholly frivolous. The Anders brief first identifies Appellant's assertion that insufficient evidence supported
a VUFA charge where he did not reside at the house searched and,
therefore, could not have possessed the guns located therein. Relatedly,
Appellant also asserts that counsel was ineffective for advising him to plead
guilty on such charge. To the extent this issue presents a challenge to the
sufficiency of the evidence, our cases state that "by entering a guilty plea,
the defendant waives his right to challenge on direct appeal all
nonjurisdictional defects except the legality of the sentence and the validity
of the plea." Commonwealth v.
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J-S74003-16
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. 2948 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.*
MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 24, 2016
Robert Lee ( "Appellant ") appeals from the judgment of sentence
entered in the Court of Common Pleas of Philadelphia entered after he pled
guilty to possession of a controlled substance with intent to deliver
( "PWID "), criminal conspiracy, and possession of a handgun by a person
prohibited from having one ( "VUFA "). Sentenced to downward departure,
concurrent terms of three -and -one -half to seven years' incarceration with a
five -year probationary tail upon the court's order granting his motion for
reconsideration, Appellant challenges the sufficiency of the evidence offered
to support the charges, the discretionary aspects of his sentence, and the
adequacy of plea counsel's representation. Appellate counsel has filed a
* Former Justice specially assigned to the Superior Court. J-S74003-16
petition to withdraw from representation 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 grant
counsel's petition to withdraw and affirm.
On August 30, 2013, Appellant sold Oxycodone and Xanax pills to a
confidential informant while under police surveillance, answered a
subsequent drug- related phone call made by police, and was found in
possession of more pills, a large amount of currency, and the cellular phone
used to arrange the controlled buy during a search incident to his arrest. A
subsequent search of the home he had exited prior to the controlled buy
disclosed loaded, operable firearms and a cache of Oxycodone. N.T.
6/10/15 at 6 -9. On June 10, 2015, Appellant pled guilty to the above
charges and acknowledged under oath that his plea was voluntary, informed,
and intelligent. Id. at 8 -9. The court initially sentenced Appellant to
concurrent, below- mitigated range sentences of four to ten year sentences
but, on September 18, 2015, granted Appellant's motion for reconsideration
and reduced his sentence to three -and -one -half to seven years'
incarceration. Appellant filed no post- sentence motion to his revised
sentence but, instead, filed this timely direct appeal.
On October 6, 2015, the court appointed present counsel to represent
Appellant on direct appeal. Appellant informed newly- appointed counsel that
he wished to challenge the sufficiency of the evidence offered to support the
weapons charge against him, for he neither owned nor resided in the home
-2- J-S74003-16
in which contraband was recovered. He also sought to advance the claim
that plea counsel rendered ineffective assistance of counsel in advising him
to plead guilty and in failing to inform him that a new post- sentence motion
for reconsideration of sentence would be required to challenge the court's
revised sentence. On November 2, 2015, however, counsel filed a
statement of intent to file an Anders brief, averring that his review of the
entire record and pertinent authority on relevant issues led him to conclude
there are no meritorious, non -frivolous issues to raise on appeal.
By way of our March 29, 2016 per curiam order, we denied counsel's initial petition to withdraw and accompanying Anders brief for non-
compliance with procedures set forth in Santiago. On April 28, 2016, in
compliance with our order, counsel re- petitioned this Court to withdraw as
counsel and submitted a new Anders brief. We do not consider the merits of an issue raised in an Anders brief without first reviewing a request to withdraw. Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.Super. 2013) (en banc). In order to be
permitted to withdraw, counsel must meet three procedural requirements:
1) file a petition for leave to withdraw and state that, after making a
conscientious examination of the record, counsel has concluded that the
appeal is frivolous; 2) provide a copy of the Anders brief to the defendant;
and 3) inform the defendant that he has the right to retain private counsel
or raise, pro se, additional arguments that the defendant deems worthy of the court's attention. Id. -3 J-S74003-16
Counsel's petition to withdraw conforms to the procedural
requirements of Anders. The petition indicates he reviewed the record and,
based on that review, determined that this appeal is totally frivolous. It also
indicates that counsel mailed a copy of the motion to withdraw and the brief
to Appellant and that he informed Appellant of his right to hire counsel,
represent himself in this appeal, or write to the court raising any additional
points which he believes are worthy of the court's attention. A letter to
Appellant is attached to the motion to withdraw, and it confirms that
Appellant received a copy of the documents in question and was told about
his right to proceed with private counsel or pro se.
We now examine the briefing requirements when counsel seeks to
withdraw on direct appeal. Pursuant to Santiago, an Anders brief must:
(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, supra at 361. Appellant's brief satisfies the mandates of Santiago. It first sets forth
the procedural and factual history of this matter. Counsel then addresses
each issue Appellant wishes to raise, acknowledges that Appellant denies
possession of weapons recovered in a home in which he did not reside, and
discusses why under existing authority Appellant's claims are either
-4 J-S74003-16
frivolous, waived, or must be deferred until collateral review. Thus, we
determine that counsel should be permitted to withdraw.
Accordingly, we will proceed to examine the appeal and make an
independent determination of whether it is wholly frivolous. The Anders brief first identifies Appellant's assertion that insufficient evidence supported
a VUFA charge where he did not reside at the house searched and,
therefore, could not have possessed the guns located therein. Relatedly,
Appellant also asserts that counsel was ineffective for advising him to plead
guilty on such charge. To the extent this issue presents a challenge to the
sufficiency of the evidence, our cases state that "by entering a guilty plea,
the defendant waives his right to challenge on direct appeal all
nonjurisdictional defects except the legality of the sentence and the validity
of the plea." Commonwealth v. Lincoln, 72 A.3d 606, 609 (Pa. Super.
2013) (citation omitted), appeal denied, 87 A.3d 319 (Pa. 2014).
Appellant, therefore, waived his sufficiency of the evidence claim when he
pled guilty to VUFA.
Regarding Appellant's ineffectiveness claim tied to counsel's
advisement that he should plead guilty to VUFA, this claim must be deferred
to collateral review pursuant to the dictates of our Supreme Court in
Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), wherein our Supreme
Court held that a claim of ineffective assistance of counsel cannot be
entertained on direct appeal. See Commonwealth v. Barnett, 25 A.3d
371, 377 (Pa.Super. 2011) (en banc) (pursuant to Grant's refinement in
-5- J-S74003-16
Commonwealth v. Liston, 977 A.2d 1089 (Pa. 2009), and
Commonwealth v. Wright, 961 A.2d 119, 148 n. 22 (Pa. 2008), the
Superior Court is not permitted to review ineffective assistance of counsel
claims on direct appeal unless the defendant has expressly, knowingly, and
voluntarily waived PCRA review).
Appellant also contends that his below- mitigated range, three -and-
one -half to seven -year sentence is excessive and reflects an abuse of the
sentencing court's discretion. "A challenge to the discretionary aspects of a
sentence must be considered a petition for permission to appeal, as the right
to pursue such a claim is not absolute." Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa.Super.2007) (citation omitted). In order to reach the
merits of such a claim, this Court must determine:
(1) Whether appellant has filed a timely notice of appeal; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence; (3) whether appellant's brief has a fatal defect; and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code.
Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa.Super. 2011) (footnotes omitted).
Here, Appellant failed to preserve this issue with either an objection
before the sentencing court or a timely post- sentence motion. Therefore, he has waived this claim. See Commonwealth v. Mann, 820 A.2d 788, 794
(Pa.Super. 2003) (citation omitted) ( "[I]ssues challenging the discretionary
aspects of sentencing must be raised in a post- sentence motion or by raising
-6 J-S74003-16
the claim during the sentencing proceedings. Absent such efforts, an
objection to a discretionary aspect of a sentence is waived. ").
Appellant's remaining issue goes to plea counsel's failure to preserve
his challenge to the discretionary aspects of his sentence. As noted above,
however, we must defer resolution of this ineffective assistance of counsel
claim to collateral review pursuant to the dictates of Grant and its progeny.
Judgment of sentence is affirmed. Petition to withdraw representation
isgranted. Judgment Entered.
/ J seph D. Seletyn, Prothonotary
Date: 10/24/2016
-7