J-S01040-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MARK ANTHONY PERRY : : Appellant : No. 962 MDA 2023
Appeal from the Judgment of Sentence Entered June 15, 2023 In the Court of Common Pleas of Cumberland County Criminal Division at No(s): CP-21-CR-0001178-2022
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MARK ANTHONY PERRY : : Appellant : No. 963 MDA 2023
Appeal from the Judgment of Sentence Entered June 15, 2023 In the Court of Common Pleas of Cumberland County Criminal Division at No(s): CP-21-CR-0000567-2022
BEFORE: PANELLA, P.J.E., KUNSELMAN, J., and COLINS, J.
MEMORANDUM BY COLINS, J.: FILED: AUGUST 7, 2024
Mark Anthony Perry appeals from the judgments of sentence that were
imposed following his guilty pleas to two counts of retail theft. See 18 Pa.C.S.
§ 3929(a)(1). Having originally been admitted into Cumberland County
Treatment Court (“Treatment Court”), Perry was removed from that
____________________________________________
Retired Senior Judge assigned to the Superior Court. J-S01040-24
alternative sentencing program after the lower court found merit to a petition
alleging that Perry had committed ten violations of that program’s conditions.
Resultantly, Perry was sentenced to two consecutive twelve-to-thirty-month
terms of incarceration for an aggregate sentence of twenty-four to sixty
months. Perry timely appealed from these newly imposed sentences, and his
counsel has filed a petition to withdraw from representation and a
corresponding brief pursuant to Anders v. California, 386 U.S. 783 (1967).
Following our thorough review of the record, we affirm Perry’s judgments of
sentence and additionally grant counsel’s petition to withdraw.
Briefly, following his guilty pleas at both docket numbers1, Perry was
admitted into Treatment Court and “directed to abide by all of its terms and
conditions.” See Guilty Plea Order, 9/22/22. Thereafter, Perry committed
multiple violations of Treatment Court’s conditions, such as repeatedly
providing “adulterated,” “diluted,” or “fake” urine for drug testing, using
methamphetamines, and, eventually, totally absconding from the program,
leading to the issuing of a bench warrant. Petition for Removal from Treatment
Court, 5/16/23, at ¶¶ 1-9.2 Subsequently, Perry “acknowledged that he [was]
in violation of the terms of his Treatment Court [p]rogram” and was
“removed[.]” Order, 6/6/23. Perry was sentenced approximately one week ____________________________________________
1 Perry’s appeals at the two lower court dockets were consolidated sua sponte
by this Court. See Order, 8/15/23.
2 Perry was also arrested and charged with various offenses in an unrelated
matter by the Harrisburg Police Department. See Petition for Removal from Treatment Court, 5/16/23, at ¶ 10.
-2- J-S01040-24
later and timely appealed from the court’s judgments of sentence. In lieu of
filing a concise statement, see Pa.R.A.P. 1925(b), Perry’s counsel filed a
notice of his intent to file an Anders brief, see Pa.R.A.P. 1925(c)(4).
Prior to any substantive consideration of Perry’s appeal, we must first
analyze counsel’s petition to withdraw and Anders brief. See
Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super. 2010). To withdraw
from representation, counsel must avail himself of a well-defined set of
procedures. In particular, counsel is required to:
(1) petition the court for leave to withdraw stating that after making a conscientious examination of the record, counsel has determined the appeal would be frivolous;
(2) file a brief referring to any issues that might arguably support the appeal, but which does not resemble a no-merit letter; and
(3) furnish a copy of the brief to the defendant and advise him of his right to retain new counsel, proceed pro se, or raise any additional points [counsel] deems worthy of this Court’s attention.
Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006)
(citation omitted). In Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009), our Supreme Court expounded upon the necessary components of an
Anders brief, requiring that counsel:
(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
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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.
Id., at 361. If there is compliance with these requirements, this Court must
then “conduct a simple review of the record to ascertain if there appear 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).
Here, counsel has satisfactorily complied with Anders. First, the petition
to withdraw establishes that “[a]fter careful consideration of the above-
referenced record in the instant case as well as relevant authority, [c]ounsel
has determined that any appeal based on issues raised regarding the
discretionary aspects of sentencing[] would be frivolous.” Petition to Withdraw
as Counsel, 10/25/23, ¶ 1; see also id., at ¶ 2 (stating, further, that
“[c]ounsel did not discover any other non-frivolous issue for appeal[]”).
Second, counsel’s Anders brief substantially confirms to the dictates of
Santiago, containing both a procedural and factual history of Perry’s case and
stating counsel’s reasons for concluding that the appeal is frivolous. See
Anders Brief, at 6-8. Third, counsel has included a copy of the letter that he
sent to Perry, which evinces counsel’s clear intention to withdraw from
representation and, too, informs him of his right to either seek new counsel
or proceed pro se. See Letter from Counsel to Mark Anthony Perry, dated
-4- J-S01040-24
7/13/13.3 Because the technical requirements of Anders have been met, we
review the brief’s contents to ascertain the frivolousness of any issues counsel
has raised. Following that analysis, we independently review the record to
establish whether Perry’s appeal is wholly without merit.
The sole issue discussed in the Anders brief is whether Perry has any
non-frivolous basis to challenge his sentences, specifically insofar as they were
imposed at the court’s discretion. In his guilty plea colloquy, Perry agreed that
if he “did not complete [Treatment Court], the court [would] sentence [him]
to all of the charges which [he] had pled in order to enter [that Court].”
Treatment Court Guilty Plea Colloquy, 9/22/22, at ¶ 14. Moreover, Perry
acknowledged his violations of Treatment Court, leading to his removal. See
Order, 6/6/23.
First, we note that Perry’s two consecutive sentences were both in the
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J-S01040-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MARK ANTHONY PERRY : : Appellant : No. 962 MDA 2023
Appeal from the Judgment of Sentence Entered June 15, 2023 In the Court of Common Pleas of Cumberland County Criminal Division at No(s): CP-21-CR-0001178-2022
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MARK ANTHONY PERRY : : Appellant : No. 963 MDA 2023
Appeal from the Judgment of Sentence Entered June 15, 2023 In the Court of Common Pleas of Cumberland County Criminal Division at No(s): CP-21-CR-0000567-2022
BEFORE: PANELLA, P.J.E., KUNSELMAN, J., and COLINS, J.
MEMORANDUM BY COLINS, J.: FILED: AUGUST 7, 2024
Mark Anthony Perry appeals from the judgments of sentence that were
imposed following his guilty pleas to two counts of retail theft. See 18 Pa.C.S.
§ 3929(a)(1). Having originally been admitted into Cumberland County
Treatment Court (“Treatment Court”), Perry was removed from that
____________________________________________
Retired Senior Judge assigned to the Superior Court. J-S01040-24
alternative sentencing program after the lower court found merit to a petition
alleging that Perry had committed ten violations of that program’s conditions.
Resultantly, Perry was sentenced to two consecutive twelve-to-thirty-month
terms of incarceration for an aggregate sentence of twenty-four to sixty
months. Perry timely appealed from these newly imposed sentences, and his
counsel has filed a petition to withdraw from representation and a
corresponding brief pursuant to Anders v. California, 386 U.S. 783 (1967).
Following our thorough review of the record, we affirm Perry’s judgments of
sentence and additionally grant counsel’s petition to withdraw.
Briefly, following his guilty pleas at both docket numbers1, Perry was
admitted into Treatment Court and “directed to abide by all of its terms and
conditions.” See Guilty Plea Order, 9/22/22. Thereafter, Perry committed
multiple violations of Treatment Court’s conditions, such as repeatedly
providing “adulterated,” “diluted,” or “fake” urine for drug testing, using
methamphetamines, and, eventually, totally absconding from the program,
leading to the issuing of a bench warrant. Petition for Removal from Treatment
Court, 5/16/23, at ¶¶ 1-9.2 Subsequently, Perry “acknowledged that he [was]
in violation of the terms of his Treatment Court [p]rogram” and was
“removed[.]” Order, 6/6/23. Perry was sentenced approximately one week ____________________________________________
1 Perry’s appeals at the two lower court dockets were consolidated sua sponte
by this Court. See Order, 8/15/23.
2 Perry was also arrested and charged with various offenses in an unrelated
matter by the Harrisburg Police Department. See Petition for Removal from Treatment Court, 5/16/23, at ¶ 10.
-2- J-S01040-24
later and timely appealed from the court’s judgments of sentence. In lieu of
filing a concise statement, see Pa.R.A.P. 1925(b), Perry’s counsel filed a
notice of his intent to file an Anders brief, see Pa.R.A.P. 1925(c)(4).
Prior to any substantive consideration of Perry’s appeal, we must first
analyze counsel’s petition to withdraw and Anders brief. See
Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super. 2010). To withdraw
from representation, counsel must avail himself of a well-defined set of
procedures. In particular, counsel is required to:
(1) petition the court for leave to withdraw stating that after making a conscientious examination of the record, counsel has determined the appeal would be frivolous;
(2) file a brief referring to any issues that might arguably support the appeal, but which does not resemble a no-merit letter; and
(3) furnish a copy of the brief to the defendant and advise him of his right to retain new counsel, proceed pro se, or raise any additional points [counsel] deems worthy of this Court’s attention.
Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006)
(citation omitted). In Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009), our Supreme Court expounded upon the necessary components of an
Anders brief, requiring that counsel:
(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
-3- J-S01040-24
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.
Id., at 361. If there is compliance with these requirements, this Court must
then “conduct a simple review of the record to ascertain if there appear 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).
Here, counsel has satisfactorily complied with Anders. First, the petition
to withdraw establishes that “[a]fter careful consideration of the above-
referenced record in the instant case as well as relevant authority, [c]ounsel
has determined that any appeal based on issues raised regarding the
discretionary aspects of sentencing[] would be frivolous.” Petition to Withdraw
as Counsel, 10/25/23, ¶ 1; see also id., at ¶ 2 (stating, further, that
“[c]ounsel did not discover any other non-frivolous issue for appeal[]”).
Second, counsel’s Anders brief substantially confirms to the dictates of
Santiago, containing both a procedural and factual history of Perry’s case and
stating counsel’s reasons for concluding that the appeal is frivolous. See
Anders Brief, at 6-8. Third, counsel has included a copy of the letter that he
sent to Perry, which evinces counsel’s clear intention to withdraw from
representation and, too, informs him of his right to either seek new counsel
or proceed pro se. See Letter from Counsel to Mark Anthony Perry, dated
-4- J-S01040-24
7/13/13.3 Because the technical requirements of Anders have been met, we
review the brief’s contents to ascertain the frivolousness of any issues counsel
has raised. Following that analysis, we independently review the record to
establish whether Perry’s appeal is wholly without merit.
The sole issue discussed in the Anders brief is whether Perry has any
non-frivolous basis to challenge his sentences, specifically insofar as they were
imposed at the court’s discretion. In his guilty plea colloquy, Perry agreed that
if he “did not complete [Treatment Court], the court [would] sentence [him]
to all of the charges which [he] had pled in order to enter [that Court].”
Treatment Court Guilty Plea Colloquy, 9/22/22, at ¶ 14. Moreover, Perry
acknowledged his violations of Treatment Court, leading to his removal. See
Order, 6/6/23.
First, we note that Perry’s two consecutive sentences were both in the
standard range of the sentencing guidelines. Fundamentally, however, a
challenge to the discretionary aspects of his sentence is not reviewable “as of
right.” Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super. 2015)
3 We note that the letter is dated several months prior to the filing of the Anders brief and references that said brief would be filed in the future. However, in a subsequent filing, Perry’s counsel indicated that the letter “was submitted with the Anders/McClendon [b]rief.” Response to Order, 10/27/23. The letter was attached as an appendix to the Anders brief, and counsel’s Petition to Withdraw as Counsel establishes that he had “furnished a copy of the brief” to Perry and “advised [him] of the right to retain new counsel or raise any additional points deemed worth of the court’s review[.]” Petition to Withdraw as Counsel, 10/25/23, at 2. Although the letter correctly informs Perry of his rights, we note the confusing nature of its date.
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(en banc) (citation omitted). Instead,
[b]efore this Court can address such a discretionary challenge, an appellant must comply with the following requirements:
An appellant challenging the discretionary aspects of his sentence must invoke this Court’s jurisdiction by satisfying a four-part test: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code.
Id. (citation omitted).
As Perry did not file a post-sentence motion challenging the discretionary
aspects of his sentence or preserve any claim at the sentencing hearing, he has
failed to properly invoke this Court’s jurisdiction and would be accordingly
entitled to no relief. See Caldwell, 117 A.3d at 768; see also N.T., 6/15/23,
at 8-9 (Perry stating, after sentencing, that he did not want to file a post-
sentence motion). Additionally, while Perry’s sentences are consecutive rather
than concurrent, which, by its very nature, may raise a substantial question in
“the most extreme circumstances,” Commonwealth v. Radecki, 180 A.3d
441, 469 (Pa. Super. 2018) (citations omitted), we are nevertheless without
jurisdiction to substantively entertain a challenge to his sentence structure
considering Perry’s failure to raise the issue before the trial court.
Pursuant to Anders, we have independently reviewed the record in
search of other non-frivolous issues. However, this review has revealed no
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viable issues that Perry could pursue on appeal.4
Having found no non-frivolous issues and in further seeing no merit to
anything explored in the Anders brief, we grant counsel’s petition to withdraw
and affirm Perry’s judgments of sentence.
Petition to withdraw from representation granted. Judgments of
sentence affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 8/07/2024
4 As Perry entered a guilty plea in this matter, the only additional issues he
could have raised are challenges to the jurisdiction of the court that accepted his plea, the validity of the guilty plea, and the legality of the sentence. See Commonwealth v. Brown, 240 A.3d 970, 972 (Pa. Super. 2020). The record is clear that there can be no meritorious challenge to the trial court’s jurisdiction or the legality of Perry’s sentences, as the crimes were committed in Cumberland County, and Perry’s sentences were within the seven-year maximum applicable to third-degree felonies. See 18 Pa.C.S. § 1103(3); 18 Pa.C.S. § 3929(b)(1)(iv) (retail theft is a “[f]elony of the third degree when the offense is a third … offense, regardless of the value of the merchandise[]”). Furthermore, all of the essential components for a voluntary and knowing plea were covered during Perry’s written and oral plea colloquies, and in any event, any challenge to the plea would be waived because it was not preserved in the lower court. See Commonwealth v. Lincoln, 72 A.3d 606, 609-10 (Pa. Super. 2013) (requiring an objection during the plea colloquy or a motion to withdraw the plea within ten days of sentencing); Commonwealth v. Pollard, 832 A.2d 517, 522-23 (Pa. Super. 2003) (discussing the components of a valid guilty plea).
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