J-S69033-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
UBALDO DAMIAN NOLASCO,
Appellant No. 538 MDA 2016
Appeal from the Judgment of Sentence February 26, 2016 in the Court of Common Pleas of Franklin County Criminal Division at Nos.: CP-28-CR-0001028-2015 CP-28-CR-0001039-2015
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
Appellant No. 539 MDA 2016
Appeal from the Judgment of Sentence February 26, 2016 in the Court of Common Pleas of Franklin County Criminal Division at Nos.: CP-28-CR-0001028-2015 CP-28-CR-0001039-2015
BEFORE: STABILE, J., DUBOW, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED OCTOBER 06, 2016
____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S69033-16
In these consolidated cases,1 Appellant, Ubaldo Damian Nolasko,
appeals from the judgment of sentence imposed following his entry of nolo
contendere pleas to one count each of rape of a child and involuntary
deviate sexual intercourse with a child (IDSI),2 at the above-referenced
docket numbers. On appeal, Appellant challenges the trial court’s imposition
of consecutive, rather than concurrent, sentences. Counsel for Appellant has
petitioned to withdraw on the ground that his issue on appeal is wholly
frivolous.3 We grant counsel’s petition to withdraw and affirm the judgment
of sentence.
The relevant facts and procedural history of this case are as follows.
On October 29, 2015, Appellant entered negotiated nolo contendere pleas to
rape of a child at Docket No. 1028-2015 and IDSI at Docket No. 1039-2015.
The charges stem from Appellant’s rape and sexual abuse of his then-
paramour’s two daughters over a two and one-half year period while they
were between the ages of seven and nine, and eight and ten, years old. In
exchange for the plea, the Commonwealth agreed to dismiss the remaining
charges against him. At the February 26, 2016 sentencing hearing, the trial
court determined that Appellant met the criteria for classification as a ____________________________________________
1 This Court consolidated the appeals sua sponte on April 22, 2016. 2 18 Pa.C.S.A. §§ 3121(c) and 3123(b), respectively. 3 See Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
-2- J-S69033-16
sexually violent predator (SVP), and noted that it had considered the
information contained in a pre-sentence investigation report (PSI). In
accordance with the plea agreement, the court sentenced Appellant to the
agreed-upon term of incarceration of not less than five nor more than ten
years’ on the rape count, followed by a consecutive term of not less than
five nor more than ten years’ on the IDSI count.
On March 1, 2016, Appellant filed a timely post-sentence motion
acknowledging that the plea agreement provided for consecutive sentences,
but nonetheless requesting that the court modify the aggregate sentence to
run the individual sentences concurrently. See Pa.R.Crim.P. 720(A)(1). On
March 3, 2016, the court entered an order denying the motion. Appellant
filed a timely notice of appeal on April 1, 2016.4 On April 4, 2016, the trial
court ordered Appellant to file a concise statement of errors complained of
on appeal. See Pa.R.A.P. 1925(b). On April 27, 2016, the court entered an
opinion noting that Appellant had not filed a Rule 1925(b) statement as
ordered, and addressing the sentencing issue Appellant raised in his post-
sentence motion. See Pa.R.A.P. 1925(a). The next day, counsel for
Appellant filed a Rule 1925(b) statement raising the same sentencing issue,
4 We note that although Appellant purports to appeal from the court’s order denying his post-sentence motion, “a direct appeal in a criminal case can only lie from the judgment of sentence.” Commonwealth v. Lawrence, 99 A.3d 116, 117 n.1 (Pa. Super. 2014), appeal denied, 114 A.3d 416 (Pa. 2015) (citation omitted).
-3- J-S69033-16
and stating his intention to file an Anders brief. See Pa.R.A.P. 1925(b),
(c)(4).5
On June 24, 2016, counsel for Appellant filed an Anders brief and a
petition to withdraw as counsel stating his belief that this appeal is wholly
frivolous. (See Petition to Withdraw as Counsel, 6/24/16, at unnumbered
page 1). Appellant has not responded.
As a preliminary matter, appellate counsel seeks to withdraw his
representation pursuant to Anders, supra and Santiago, supra.
Therefore,
counsel must: (1) petition the court for leave to withdraw stating that after making a conscientious examination of the record it has been determined that the appeal would be frivolous; (2) file a brief referring to anything that might arguably support the appeal, but which does not resemble a “no-merit” letter or amicus curiae brief; and (3) furnish a copy of the brief to the defendant and advise him of his right to retain new counsel or raise any additional points that he deems worthy of the court’s attention.
5 Appellant’s Rule 1925(b) statement was untimely. However, this Court may address the merits of a criminal appeal where an appellant files an untimely concise statement if the trial court prepared an opinion addressing the issue(s) raised on appeal. See Commonwealth v. Thompson, 39 A.3d 335, 340 (Pa. Super. 2012) (“[w]hen counsel has filed an untimely Rule 1925(b) statement and the trial court has addressed those issues we . . . may address the merits of the issues presented.”) (citation omitted); see also Commonwealth v. Veon, 109 A.3d 754, 762 (Pa. Super. 2015), appeal granted in part, 121 A.3d 954 (Pa. 2015).
-4- J-S69033-16
Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa. Super. 2006)
(citations omitted). “After establishing that the antecedent requirements
have been met, this Court must then make an independent evaluation of the
record to determine whether the appeal is, in fact, wholly frivolous.” Id.
(citation omitted).
[I]n the Anders brief that accompanies court-appointed counsel’s petition to withdraw, counsel 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.
Here, counsel’s petition to withdraw states that he conducted a
conscientious review of the certified record and determined the appeal is
wholly frivolous. Counsel provided copies of the Anders brief and petition to
withdraw to Appellant. Counsel also sent Appellant a letter explaining
Appellant’s right to obtain new counsel, or to proceed pro se to raise any
Free access — add to your briefcase to read the full text and ask questions with AI
J-S69033-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
UBALDO DAMIAN NOLASCO,
Appellant No. 538 MDA 2016
Appeal from the Judgment of Sentence February 26, 2016 in the Court of Common Pleas of Franklin County Criminal Division at Nos.: CP-28-CR-0001028-2015 CP-28-CR-0001039-2015
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
Appellant No. 539 MDA 2016
Appeal from the Judgment of Sentence February 26, 2016 in the Court of Common Pleas of Franklin County Criminal Division at Nos.: CP-28-CR-0001028-2015 CP-28-CR-0001039-2015
BEFORE: STABILE, J., DUBOW, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED OCTOBER 06, 2016
____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S69033-16
In these consolidated cases,1 Appellant, Ubaldo Damian Nolasko,
appeals from the judgment of sentence imposed following his entry of nolo
contendere pleas to one count each of rape of a child and involuntary
deviate sexual intercourse with a child (IDSI),2 at the above-referenced
docket numbers. On appeal, Appellant challenges the trial court’s imposition
of consecutive, rather than concurrent, sentences. Counsel for Appellant has
petitioned to withdraw on the ground that his issue on appeal is wholly
frivolous.3 We grant counsel’s petition to withdraw and affirm the judgment
of sentence.
The relevant facts and procedural history of this case are as follows.
On October 29, 2015, Appellant entered negotiated nolo contendere pleas to
rape of a child at Docket No. 1028-2015 and IDSI at Docket No. 1039-2015.
The charges stem from Appellant’s rape and sexual abuse of his then-
paramour’s two daughters over a two and one-half year period while they
were between the ages of seven and nine, and eight and ten, years old. In
exchange for the plea, the Commonwealth agreed to dismiss the remaining
charges against him. At the February 26, 2016 sentencing hearing, the trial
court determined that Appellant met the criteria for classification as a ____________________________________________
1 This Court consolidated the appeals sua sponte on April 22, 2016. 2 18 Pa.C.S.A. §§ 3121(c) and 3123(b), respectively. 3 See Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
-2- J-S69033-16
sexually violent predator (SVP), and noted that it had considered the
information contained in a pre-sentence investigation report (PSI). In
accordance with the plea agreement, the court sentenced Appellant to the
agreed-upon term of incarceration of not less than five nor more than ten
years’ on the rape count, followed by a consecutive term of not less than
five nor more than ten years’ on the IDSI count.
On March 1, 2016, Appellant filed a timely post-sentence motion
acknowledging that the plea agreement provided for consecutive sentences,
but nonetheless requesting that the court modify the aggregate sentence to
run the individual sentences concurrently. See Pa.R.Crim.P. 720(A)(1). On
March 3, 2016, the court entered an order denying the motion. Appellant
filed a timely notice of appeal on April 1, 2016.4 On April 4, 2016, the trial
court ordered Appellant to file a concise statement of errors complained of
on appeal. See Pa.R.A.P. 1925(b). On April 27, 2016, the court entered an
opinion noting that Appellant had not filed a Rule 1925(b) statement as
ordered, and addressing the sentencing issue Appellant raised in his post-
sentence motion. See Pa.R.A.P. 1925(a). The next day, counsel for
Appellant filed a Rule 1925(b) statement raising the same sentencing issue,
4 We note that although Appellant purports to appeal from the court’s order denying his post-sentence motion, “a direct appeal in a criminal case can only lie from the judgment of sentence.” Commonwealth v. Lawrence, 99 A.3d 116, 117 n.1 (Pa. Super. 2014), appeal denied, 114 A.3d 416 (Pa. 2015) (citation omitted).
-3- J-S69033-16
and stating his intention to file an Anders brief. See Pa.R.A.P. 1925(b),
(c)(4).5
On June 24, 2016, counsel for Appellant filed an Anders brief and a
petition to withdraw as counsel stating his belief that this appeal is wholly
frivolous. (See Petition to Withdraw as Counsel, 6/24/16, at unnumbered
page 1). Appellant has not responded.
As a preliminary matter, appellate counsel seeks to withdraw his
representation pursuant to Anders, supra and Santiago, supra.
Therefore,
counsel must: (1) petition the court for leave to withdraw stating that after making a conscientious examination of the record it has been determined that the appeal would be frivolous; (2) file a brief referring to anything that might arguably support the appeal, but which does not resemble a “no-merit” letter or amicus curiae brief; and (3) furnish a copy of the brief to the defendant and advise him of his right to retain new counsel or raise any additional points that he deems worthy of the court’s attention.
5 Appellant’s Rule 1925(b) statement was untimely. However, this Court may address the merits of a criminal appeal where an appellant files an untimely concise statement if the trial court prepared an opinion addressing the issue(s) raised on appeal. See Commonwealth v. Thompson, 39 A.3d 335, 340 (Pa. Super. 2012) (“[w]hen counsel has filed an untimely Rule 1925(b) statement and the trial court has addressed those issues we . . . may address the merits of the issues presented.”) (citation omitted); see also Commonwealth v. Veon, 109 A.3d 754, 762 (Pa. Super. 2015), appeal granted in part, 121 A.3d 954 (Pa. 2015).
-4- J-S69033-16
Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa. Super. 2006)
(citations omitted). “After establishing that the antecedent requirements
have been met, this Court must then make an independent evaluation of the
record to determine whether the appeal is, in fact, wholly frivolous.” Id.
(citation omitted).
[I]n the Anders brief that accompanies court-appointed counsel’s petition to withdraw, counsel 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.
Here, counsel’s petition to withdraw states that he conducted a
conscientious review of the certified record and determined the appeal is
wholly frivolous. Counsel provided copies of the Anders brief and petition to
withdraw to Appellant. Counsel also sent Appellant a letter explaining
Appellant’s right to obtain new counsel, or to proceed pro se to raise any
additional issues for this Court’s consideration, and has attached a copy of
this letter to the petition to withdraw. See Commonwealth v. Millisock,
873 A.2d 748, 752 (Pa. Super. 2005). In the Anders brief, counsel provides
a statement of the case and refers to relevant law and evidence of record
that might arguably support Appellant’s discretionary aspects of sentencing
claim on appeal. Counsel further states his reasons for his conclusion that
-5- J-S69033-16
the appeal is wholly frivolous. Therefore, counsel has complied with the
requirements of Anders and Santiago. Accordingly, we will proceed to an
independent review of the issue raised in the Anders brief. See Palm,
supra at 1246.
The Anders brief raises the following issue for our review: “Did the
trial court abuse its discretion when it imposed consecutive, rather than
concurrent, sentences and did not modify [Appellant’s] consecutive [five to
ten] year [State Correctional Institution] sentences to concurrent [five to
ten] year [State Correctional Institution] sentences?” (Anders Brief, at
10).6 Appellant claims that the consecutive sentences are unduly harsh and
excessive. (See id. at 12). This claim merits no relief.
It is well established “that in terms of its effect upon a case, a plea of
nolo contendere is treated the same as a guilty plea.” Commonwealth v.
Leidig, 850 A.2d 743, 745 (Pa. Super. 2004), affirmed, 956 A.2d 399 (Pa.
2008) (citation omitted). “One who pleads guilty and receives a negotiated
sentence may not then seek discretionary review of that sentence.”
Commonwealth v. O’Malley, 957 A.2d 1265, 1267 (Pa. Super. 2008)
(citation omitted). Therefore, where the trial court imposed a sentence the
defendant negotiated with the Commonwealth, there is no authority to
permit an excessiveness challenge. See Commonwealth v. Reid, 117
6 The Commonwealth has advised this Court of its intention not to file a brief. (See Commonwealth’s Letter, 7/25/16).
-6- J-S69033-16
A.3d 777, 784 (Pa. Super. 2015) (stating claim raising challenge to
discretionary aspects of appellant’s negotiated sentence is unreviewable).
Here, Appellant’s claim that his consecutive sentences are harsh and
excessive presents a challenge to the discretionary aspects of his negotiated
sentence, which he waived upon the entry of his nolo contendere plea. See
id. Thus, Appellant’s claim is unreviewable. See id. Accordingly, the issue
raised in the Anders brief is frivolous. Furthermore, after independent
review, we determine that there are no other non-frivolous bases for appeal,
and this appeal is “wholly frivolous.” Palm, supra at 1246.
Judgment of sentence affirmed. Petition for leave to withdraw as
counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 10/6/2016
-7-