J-S36013-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CLEO RUFFIN : : Appellant : No. 3044 EDA 2022
Appeal from the Judgment of Sentence Entered October 19, 2022 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0002640-2021
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CLEO RUFFIN JR. : : Appellant : No. 3045 EDA 2022
Appeal from the Judgment of Sentence Entered October 19, 2022 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0000027-2022
BEFORE: BOWES, J., NICHOLS, J., and KING, J.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 30, 2023
Cleo Ruffin, Jr. appeals from the judgment of sentence of six to twenty-
three months of imprisonment, followed by four years of probation, imposed
after he pled guilty to failure to comply with sex offender registration
requirements and disorderly conduct. Appellant’s counsel, Wana Saadzoi,
Esquire, has filed an application to withdraw and a brief pursuant to Anders J-S36013-23
v. California, 386 U.S. 748 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009). We deny counsel’s petition and order new briefing.
On May 5, 2021, Officer Kenneth Collins of the Darby Borough Police
Department received a fax from the Pennsylvania State Police informing him
that Appellant had missed the prescribed check-in window required for
Megan’s Law offenders.1 Officer Collins responded to Appellant’s residence
and arrested him for failing to comply with the reporting requirements and for
disorderly conduct based on an outstanding warrant.
Appellant pled guilty in both of the above-captioned cases and was
sentenced as referenced above. He filed no post-sentence motions. While
still represented by counsel, Appellant filed timely pro se notices of appeal in
both cases. The trial court held a hearing pursuant to Commonwealth v.
Grazier, 713 A.2d 81 (Pa. 1998). At the hearing, the court allowed plea
counsel to withdraw and granted Appellant’s request to be represented by
counsel on appeal. Thereafter, the court appointed Attorney Saadzoi. Both
Appellant and the trial court complied with Pa.R.A.P. 1925. We consolidated
the cases sua sponte.
As noted, Appellant’s counsel filed both an Anders brief and a petition
to withdraw as counsel. The following legal principles guide our review:
Direct appeal counsel seeking to withdraw under Anders must file a petition averring that, after a conscientious ____________________________________________
1 Appellant is subject to lifetime sex offender registration due to his convictions
for rape and involuntary deviate sexual intercourse committed in 1997.
-2- J-S36013-23
examination of the record, counsel finds the appeal to be wholly frivolous. Counsel must also file an Anders brief setting forth issues that might arguably support the appeal along with any other issues necessary for the effective appellate presentation thereof. . . .
Anders counsel must also provide a copy of the Anders petition and brief to the appellant, advising the appellant of the right to retain new counsel, proceed pro se or raise any additional points worthy of this Court’s attention.
If counsel does not fulfill the aforesaid technical requirements of Anders, this Court will deny the petition to withdraw and remand the case with appropriate instructions (e.g., directing counsel either to comply with Anders or file an advocate’s brief on Appellant’s behalf). By contrast, if counsel’s petition and brief satisfy Anders, we will then undertake our own review of the appeal to determine if it is wholly frivolous.
Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa.Super. 2007)
(citations omitted). The High Court further detailed counsel’s duties as
follows:
[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.
Our examination of counsel’s petition to withdraw and Anders brief
reveals that counsel has substantially complied with the technical
-3- J-S36013-23
requirements set forth above.2 As required by Santiago, counsel provided a
summary of the case history, referred to an issue that arguably supports the
appeal, stated her conclusion that the appeal is frivolous, and cited case law
supporting that conclusion. See Anders brief at 6-22.
The only issue of arguable merit identified by counsel was that Appellant
received ineffective assistance of counsel in connection with his guilty pleas.
Specifically, Appellant believes his plea counsel was ineffective for failing to
file a post-sentence motion to withdraw both of his guilty pleas, which
Appellant alleges were not given knowingly, intelligently, and voluntarily. As
counsel correctly observes, our Supreme Court has articulated that, absent
specific circumstances not applicable here, claims of ineffective assistance of
counsel should not be raised on direct appeal but should rather be deferred to
collateral review. See Commonwealth v. Holmes, 79 A.3d 562, 577 (Pa.
2013); Commonwealth v. Grant, 813 A.3d 726, 735 (Pa. 2002). Therefore,
raising such a claim in this appeal would be frivolous. See Commonwealth
v. Tukhi, 149 A.3d 881, 889 (Pa.Super. 2016) (“Appellant’s ineffectiveness
claims are frivolous as raised on direct appeal”). Thus, we proceed “‘to make
a full examination of the proceedings and make an independent judgment to
decide whether the appeal is in fact wholly frivolous.’” Commonwealth v.
____________________________________________
2 Appellant did not file a response to counsel’s petition.
-4- J-S36013-23
Flowers, 113 A.3d 1246, 1249 (Pa.Super. 2015) (quoting Santiago, supra
at 354 n.5).
Our independent review of the certified record reveals a potential issue
of arguable merit, i.e., that Appellant pled guilty to an inoperative criminal
offense. Appellant was charged with failure to comply with registration
requirements because he did not register with the Pennsylvania State Police
as a sexual offender pursuant to 18 Pa.C.S. § 4915.1(a)(1). The
Commonwealth eventually dismissed that charge in exchange for Appellant
pleading guilty to a different crime, failure to comply with registration of
sexual offenders requirements, pursuant to 18 Pa.C.S. § 4915(a)(1). That
provision was a part of Megan’s Law III, which had been rendered inoperative
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J-S36013-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CLEO RUFFIN : : Appellant : No. 3044 EDA 2022
Appeal from the Judgment of Sentence Entered October 19, 2022 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0002640-2021
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CLEO RUFFIN JR. : : Appellant : No. 3045 EDA 2022
Appeal from the Judgment of Sentence Entered October 19, 2022 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0000027-2022
BEFORE: BOWES, J., NICHOLS, J., and KING, J.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 30, 2023
Cleo Ruffin, Jr. appeals from the judgment of sentence of six to twenty-
three months of imprisonment, followed by four years of probation, imposed
after he pled guilty to failure to comply with sex offender registration
requirements and disorderly conduct. Appellant’s counsel, Wana Saadzoi,
Esquire, has filed an application to withdraw and a brief pursuant to Anders J-S36013-23
v. California, 386 U.S. 748 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009). We deny counsel’s petition and order new briefing.
On May 5, 2021, Officer Kenneth Collins of the Darby Borough Police
Department received a fax from the Pennsylvania State Police informing him
that Appellant had missed the prescribed check-in window required for
Megan’s Law offenders.1 Officer Collins responded to Appellant’s residence
and arrested him for failing to comply with the reporting requirements and for
disorderly conduct based on an outstanding warrant.
Appellant pled guilty in both of the above-captioned cases and was
sentenced as referenced above. He filed no post-sentence motions. While
still represented by counsel, Appellant filed timely pro se notices of appeal in
both cases. The trial court held a hearing pursuant to Commonwealth v.
Grazier, 713 A.2d 81 (Pa. 1998). At the hearing, the court allowed plea
counsel to withdraw and granted Appellant’s request to be represented by
counsel on appeal. Thereafter, the court appointed Attorney Saadzoi. Both
Appellant and the trial court complied with Pa.R.A.P. 1925. We consolidated
the cases sua sponte.
As noted, Appellant’s counsel filed both an Anders brief and a petition
to withdraw as counsel. The following legal principles guide our review:
Direct appeal counsel seeking to withdraw under Anders must file a petition averring that, after a conscientious ____________________________________________
1 Appellant is subject to lifetime sex offender registration due to his convictions
for rape and involuntary deviate sexual intercourse committed in 1997.
-2- J-S36013-23
examination of the record, counsel finds the appeal to be wholly frivolous. Counsel must also file an Anders brief setting forth issues that might arguably support the appeal along with any other issues necessary for the effective appellate presentation thereof. . . .
Anders counsel must also provide a copy of the Anders petition and brief to the appellant, advising the appellant of the right to retain new counsel, proceed pro se or raise any additional points worthy of this Court’s attention.
If counsel does not fulfill the aforesaid technical requirements of Anders, this Court will deny the petition to withdraw and remand the case with appropriate instructions (e.g., directing counsel either to comply with Anders or file an advocate’s brief on Appellant’s behalf). By contrast, if counsel’s petition and brief satisfy Anders, we will then undertake our own review of the appeal to determine if it is wholly frivolous.
Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa.Super. 2007)
(citations omitted). The High Court further detailed counsel’s duties as
follows:
[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.
Our examination of counsel’s petition to withdraw and Anders brief
reveals that counsel has substantially complied with the technical
-3- J-S36013-23
requirements set forth above.2 As required by Santiago, counsel provided a
summary of the case history, referred to an issue that arguably supports the
appeal, stated her conclusion that the appeal is frivolous, and cited case law
supporting that conclusion. See Anders brief at 6-22.
The only issue of arguable merit identified by counsel was that Appellant
received ineffective assistance of counsel in connection with his guilty pleas.
Specifically, Appellant believes his plea counsel was ineffective for failing to
file a post-sentence motion to withdraw both of his guilty pleas, which
Appellant alleges were not given knowingly, intelligently, and voluntarily. As
counsel correctly observes, our Supreme Court has articulated that, absent
specific circumstances not applicable here, claims of ineffective assistance of
counsel should not be raised on direct appeal but should rather be deferred to
collateral review. See Commonwealth v. Holmes, 79 A.3d 562, 577 (Pa.
2013); Commonwealth v. Grant, 813 A.3d 726, 735 (Pa. 2002). Therefore,
raising such a claim in this appeal would be frivolous. See Commonwealth
v. Tukhi, 149 A.3d 881, 889 (Pa.Super. 2016) (“Appellant’s ineffectiveness
claims are frivolous as raised on direct appeal”). Thus, we proceed “‘to make
a full examination of the proceedings and make an independent judgment to
decide whether the appeal is in fact wholly frivolous.’” Commonwealth v.
____________________________________________
2 Appellant did not file a response to counsel’s petition.
-4- J-S36013-23
Flowers, 113 A.3d 1246, 1249 (Pa.Super. 2015) (quoting Santiago, supra
at 354 n.5).
Our independent review of the certified record reveals a potential issue
of arguable merit, i.e., that Appellant pled guilty to an inoperative criminal
offense. Appellant was charged with failure to comply with registration
requirements because he did not register with the Pennsylvania State Police
as a sexual offender pursuant to 18 Pa.C.S. § 4915.1(a)(1). The
Commonwealth eventually dismissed that charge in exchange for Appellant
pleading guilty to a different crime, failure to comply with registration of
sexual offenders requirements, pursuant to 18 Pa.C.S. § 4915(a)(1). That
provision was a part of Megan’s Law III, which had been rendered inoperative
and replaced by the Sex Offender Registration and Notification Act (“SORNA”)
since December 20, 2012. Moreover, in 2013, the Pennsylvania Supreme
Court handed down its decision in Commonwealth v. Neiman, 84 A.3d 603,
615 (Pa. 2013), where it abrogated Megan’s Law III as violating the
Pennsylvania Constitution’s single subject rule.
In Commonwealth v. Derhammer, 173 A.3d 723, 728 (Pa. 2017),
the appellant was convicted of violating § 4915 after it had been ruled
unconstitutional by the High Court. The Supreme Court held that a defendant
cannot be convicted of violating § 4915 because that section was based upon
the invalidated Megan’s Law III. Id. Our Supreme Court reasoned that “an
offense created by an unconstitutional law is not a crime, and [a] conviction
-5- J-S36013-23
under it is illegal and void, and cannot be a legal cause of imprisonment.” Id.
(cleaned up) (internal citations and quotation marks omitted). More recently,
in Commonwealth v. McIntyre, 232 A.3d 609, 619 (Pa. 2020) (cleaned up),
the High Court held that “Appellant’s conviction and sentence cannot stand .
. . because his conviction was likewise based on [§] 4915, which . . . must be
regarded as void from the time of its enactment.” In sum, our Supreme Court
held that § 4915 was void and that a conviction for failing to satisfy the
reporting requirements pursuant to that provision could not stand.
Accordingly, since Appellant pled guilty to an offense under § 4915, it appears
that he has a potentially non-frivolous issue that counsel neglected to examine
in the Anders brief.
Thus, we deny Attorney Saadzoi’s application to withdraw and instruct
counsel to, within thirty days, file either (1) an advocate’s brief arguing that
Appellant’s sentence is illegal and should be vacated, or (2) another
application to withdraw and a new Anders brief explaining why an appeal
challenging the legality of Appellant’s sentence would be wholly frivolous.3
The Commonwealth shall have thirty days thereafter to file a response.
Application of Wana Saadzoi, Esquire, to withdraw as counsel is denied.
Panel jurisdiction is retained.
3 Counsel should further address the impact of the validity of Appellant’s guilty
plea to an invalid criminal statute.
-6-