Com. v. Mustafa, H.

• Court: Superior Court of Pennsylvania
• Decided: December 21, 2018
• Docket: 295 EDA 2017
• Status: Unpublished

Opinion

J-S74008-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : HASSAN MUSTAFA : : Appellant : No. 295 EDA 2017

Appeal from the Judgment of Sentence December 12, 2016 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004963-2015

BEFORE: LAZARUS, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 21, 2018

Hassan Mustafa appeals from the judgment of sentence, entered in the

Court of Common Pleas of Philadelphia County, following his open guilty plea

to possession of a controlled substance with intent to deliver (PWID),1 criminal

conspiracy2 and possession of a firearm prohibited.3 As a prefatory matter,

we observe counsel has filed an Anders4 brief. After our independent review,

we affirm.

Pursuant to Anders and Commonwealth v. Santiago, 978 A.2d 349

(Pa. 2009), when counsel determines that there are no non-frivolous issues ____________________________________________

1 35 P.S. § 780-113(a)(30).

2 18 Pa.C.S. § 903.

3 18 Pa.C.S. § 6105.

4 Anders v. California, 386 U.S. 738 (1967); Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981). J-S74008-18

for review, counsel must: (1) petition the Court for leave to withdraw,

certifying that after a thorough review of the record, counsel has concluded

the issues to be raised are wholly frivolous; (2) file a brief referring to anything

in the record that might arguably support the appeal; and (3) furnish a copy

of the brief to the appellant and advise him of his right to obtain new counsel

or file a pro se brief to raise any additional points the appellant deems worthy

of review. Santiago, 978 A.2d at 358–61. Further, Santiago requires

counsel to include in the Anders brief: (1) a summary of the facts and

procedural history, with citations to the record; (2) reference to anything in

the record that counsel believes arguably supports the appeal; (3) counsel’s

conclusion that the appeal is frivolous; and (4) counsel’s reasons for

concluding the appeal is frivolous. Santiago, 978 A.2d at 361. Substantial

compliance with these requirements is sufficient. Commonwealth v.

Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007).

Instantly, counsel has substantially complied with the briefing

requirements under applicable law. See Santiago, supra; Wrecks, supra.

Although counsel did not file a separate petition with this Court to withdraw

his representation, the brief includes counsel’s specific request to withdraw.

See Anders Brief, at 20. Thus, we can treat the request to withdraw as

properly before this Court. See Commonwealth v. Fischetti, 669 A.2d 399

(Pa. Super. 1995) (explaining more desirable practice is for counsel to submit

separate withdrawal petition to Superior Court; nevertheless, withdrawal

request included in Anders brief will suffice).

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In his Anders brief, counsel provides a summary of the procedural

history and facts, with citation to the record; refers to items in the record,

which might arguably support the appeal; states he engaged in a

conscientious examination of the record; concludes the appeal is wholly

frivolous; and articulates relevant facts, controlling case law, and rules on

point. Moreover, we note counsel attached to his brief a letter, dated June

19, 2018, advising Mustafa he was seeking to withdraw, and as a result,

Mustafa could retain new counsel or proceed pro se. He further indicated he

provided Mustafa with a copy of his Anders brief. We will now conduct our

independent review of the issues raised by counsel and determine, using our

own judgment, whether the appeal is wholly frivolous. Santiago, supra.

In his Anders brief, counsel refers to two possible claims: the validity

of the guilty plea and discretionary aspects of sentencing. The record indicates

Mustafa entered an open guilty plea before the Honorable Anne Marie B. Coyle,

to charges of PWID, criminal conspiracy, and a firearms violation. In exchange

for the plea, the Commonwealth dropped fifteen other charges. Our review

of the record, in particular the guilty plea colloquy and sentencing hearing,

see N.T. Guilty Plea Hearing, 11/14/16 and N.T. Sentencing, 12/6/16,

indicates that Mustafa entered a voluntary, knowing and intelligent plea to

these charges, and that he understood that the maximum penalty he faced

was 50 years and a $425,000 fine. See N.T. Guilty Plea Hearing, supra at 6,

8-9.

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Additionally, the court imposed concurrent sentences for each conviction

at the lower end of the standard range of the Sentencing Guidelines. See

N.T. Sentencing, supra at 20-21. Moreover, the court had before it a

presentence investigation report. Id. at 5. See Commonwealth v. Devers,

546 A.2d 12 (Pa. 1988) (having been fully informed by presentence report,

sentencing court’s discretion should not be disturbed).

Having conducted our independent review, we agree with counsel’s

assessment that there are no non-frivolous issues preserved for appeal. We

conclude, therefore, that the appeal is wholly frivolous. See Anders, supra.

We affirm the judgment of sentence and grant counsel’s petition to withdraw.

Judgment of sentence affirmed. Petition to Withdraw Granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/21/18

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