Com. v. Ward, J.

• Court: Superior Court of Pennsylvania
• Decided: April 7, 2016
• Docket: 1141 MDA 2015
• Status: Unpublished

Opinion

J-S24019-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JAMES WARD,

Appellant No. 1141 MDA 2015

Appeal from the Judgment of Sentence May 4, 2015 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0002084-2014

BEFORE: GANTMAN, P.J., BOWES, AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.: FILED APRIL 07, 2016

James Ward filed this appeal from the judgment of sentence imposed

on May 4, 2015, in this criminal case, and he now seeks to withdraw it. We

grant the request to discontinue this appeal.

Appellant was charged with two counts of possession of a controlled

substance (heroin) with intent to deliver and one count of possession of a

controlled substance (heroin). On February 17, 2015, he tendered a guilty

plea to one count of delivery of heroin. On May 4, 2015, the court imposed

a standard-range sentence of twenty-four to forty-eight months, rejecting

Appellant’s request for intermediate punishment due to his lengthy criminal

record of drug possession and drug trafficking convictions that was outlined

in the pre-sentence report. This appeal followed denial of Appellant’s post- J-S24019-16

sentence motion to modify his sentence. Counsel filed a petition to withdraw

from representation and filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009). The one issue raised in the brief was that the trial court abused its

discretion in refusing to impose a sentence of intermediate punishment.

Counsel complied with the procedural and briefing requirements of

Anders/Santiago.

On March 8, 2015, after the Commonwealth indicated that it was

relying on the trial court opinion and would not file a brief, Appellant filed a

motion to discontinue this appeal. Therein, counsel set forth that Appellant

“has written to counsel and expressed a desire to withdraw his appeal.”

Motion, 3/8/16, at ¶ 2. Attached to the motion is a consent to discontinue

the appeal with prejudice executed by Appellant. In that document,

Appellant states that he understands “that by discontinuing my appeal that I

will give up my appellate rights to have the Superior Court of Pennsylvania

review my sentence and guilty plea for any errors committed by the Trial

Judge.” Consent to Discontinue Appeal with Prejudice, 2/24/16, at 1.

Given the facts and circumstances involved in this appeal, we grant

the petition for discontinuance. Pa.R.A.P. 1973 (after the appellee’s brief is

filed, a discontinuance may be granted by leave of court upon application.)

We observe that there are no preserved issues of arguable merit. This

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discontinuance is granted without prejudice to Appellant’s right to seek relief

pursuant to the Post-Conviction Relief Act, 42 Pa.C.S. §§ 9541, et seq.

Petition of Jonathan Blum, Esquire to withdraw as counsel is denied as

moot. Appeal discontinued.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/7/2016

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