J-S42020-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KENNETH TODD,                              :
                                               :
                       Appellant               :   No. 2366 EDA 2018


         Appeal from the Judgment of Sentence Entered, June 22, 2015,
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0012129-2014.


BEFORE:      OTT, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.:                          FILED OCTOBER 15, 2019

        Kenneth Todd appeals from the judgment of sentence imposed following

his conviction of robbery1 and aggravated assault.2          Additionally, Todd’s

counsel filed a petition to withdraw as counsel and an accompanying brief

pursuant to Anders v. California, 386 U.S. 738, 744 (1967).            We grant

counsel’s petition, and affirm Todd’s judgment of sentence.

        On July 25, 2014, at approximately 10:30 p.m., Todd entered an

apartment located at 1318 Pine Street and found Maryanne McHenry inside.

When Todd entered, he yelled at McHenry, asking, “Where’s the money,

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*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. § 3701(a)(1)(ii)

2   18 Pa.C.S.A. § 2702(a)(1).
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Bitch?”   N.T., Guilty Plea, 6/22/2015, at 9.       Todd approached McHenry,

grabbed her throat, and strangled her with one hand. With his other hand,

Todd delivered one punch to McHenry’s face, leaving her unconscious. When

McHenry regained consciousness, she called 9-1-1. McHenry was transported

to a local hospital and treated for a right orbital facture, bleeding on the brain,

loss of a tooth, and a laceration on her mouth that required 24 stitches. As a

result of these injuries, McHenry lost feeling on one side of her face, and lost

the ability to taste on one side of her mouth. McHenry also had to wear an

eye patch for five months.

      Philadelphia police detectives processed the scene at the apartment and

secured latent finger prints, which were later confirmed as Todd’s.

Additionally, the detectives showed McHenry an eight-person photo array, and

she identified Todd as her assailant. Further, Louis Black, the owner of the

apartment, notified detectives that an Apple laptop was missing from the

property. McHenry confirmed that the laptop was in the apartment before

Todd entered.

      Police arrested Todd and charged him with robbery, aggravated assault,

and other related offenses. On June 22, 2015, Todd waived his right to a jury

trial, and pled guilty to robbery and aggravated assault, both felonies of the

first degree. That same day, the trial court sentenced Todd to an aggregate

term of fifteen to thirty years of incarceration.

      Todd did not file a direct appeal, nor any post-sentence motions. Todd

filed a timely pro se petition pursuant to the Post Conviction Relief Act

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(“PCRA”).3 The court appointed counsel, who filed an amended PCRA petition

alleging that Todd’s prior counsel failed to file a direct appeal at Todd’s

request. As a result of that filing, the PCRA court reinstated Todd’s direct

appeal rights, nunc pro tunc.

        Thereafter, Todd filed a timely notice of appeal. The trial court ordered

Todd to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal. In response, counsel filed a statement of intent to file an Anders

brief. Given that neither counsel nor Todd raised any claim of error before

the trial court, the trial court declined to file an opinion pursuant to Pa.R.A.P.

1925(a).

        In this Court, counsel filed a petition to withdraw as counsel and an

accompanying Anders brief. In the Anders brief, counsel raises the following

issues that might arguably support Todd’s appeal:

        1. Was [Todd’s] guilty plea valid?

        2. Was [Todd] competent to enter a plea?

        3. Was [Todd’s] sentence legal?

Anders Brief at 6.

        “When presented with an Anders brief, this Court may not review the

merits of the underlying issues without first passing on the request to

withdraw.” Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.

2007) (en banc) (citation omitted).            Pursuant to Anders, when counsel

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3   42 Pa.C.S.A. §§ 9541-9546.

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believes an appeal is frivolous and wishes to withdraw from representation,

she must do the following:

      (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 he 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 addressed the second requirement of Anders, i.e.,

the contents of an Anders brief, and required that the brief:

      (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.

Id. Once counsel has satisfied the Anders requirements, it is then this Court’s

responsibility “to conduct a simple review of the record to ascertain if there

appear on its face to be arguably meritorious issues that counsel, intentionally




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or not, missed or misstated.” Commonwealth v. Dempster, 187 A.3d 266,

272 (Pa. Super. 2018).

        Here, counsel has complied with each of the requirements of Anders.

Counsel indicates that she conscientiously examined the record and

determined that an appeal would be frivolous.           Further, the Anders brief

comports with the requirements set forth by our Supreme Court in Santiago.

Finally, the record includes a copy of the letter that counsel sent to Todd,

advising him of his right to proceed pro se or retain alternate counsel to file

additional claims.     Counsel also stated her intention to seek permission to

withdraw in the letter.4 Accordingly, counsel has complied with the procedural

requirements for withdrawing from representation, and we will conduct an

independent review to determine whether Todd’s appeal is wholly frivolous.

        The first issue raised in the Anders brief addresses whether Todd

knowingly, voluntarily, and intelligently entered his guilty plea. The second

issue addresses whether Todd was competent to enter a guilty plea. Because

both of these issues implicate the validity of Todd’s guilty plea, for ease of

disposition, we will address them together. Prior to analyzing the merits of

these issues, we must first determine whether they have been preserved for

our review.




____________________________________________


4   Todd did not file a response to the Anders brief.

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       A defendant wishing to challenge the validity of a guilty plea on appeal

must either object during the plea colloquy or file a motion to withdraw the

plea within ten days of sentencing. See Pa.Crim.R.P. 720(A)(1), (B)(1)(a)(i).

Failure to employ either measure results in waiver.         Pennsylvania courts

adhere to this waiver principle because it is for the court which accepted the

plea to consider and correct, in the first instance, any error which may have

been committed. See Commonwealth v. Lincoln, 72 A.3d 606, 609-10 (Pa.

Super 2013); see also Commonwealth v. Tarelia, 895 A.2d 1266, 1270

n.3 (Pa. Super. 2006) (explaining that in order to preserve an issue related to

the guilty plea, an appellant must either object at the sentence colloquy or

otherwise raise the issue at the sentencing hearing or through a post-sentence

motion); see also Pa.R.A.P. 302(a) (stating that ”[i]ssues not raised in the

lower court are waived and cannot be raised for the first time on appeal”).

       Because Todd failed to raise any issues regarding the validity of his plea

before the trial court during the plea colloquy, at the sentencing hearing, or

in a post-sentence motion to withdraw his plea,5 we conclude that Todd’s

challenges to the validity of his guilty plea are waived.

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5We note that although the PCRA court reinstated Todd’s direct appeal rights
nunc pro tunc, the court did not reinstate his right to file post-sentence
motions, and such a right is not automatic. See Commonwealth v. Liston,
977 A.2d 1089, 1094 (Pa. 2009) (holding that a defendant’s right to file a
post-sentence motion nunc pro tunc is not automatically reinstated when the
court grants the right to file a notice of appeal nunc pro tunc). Moreover,
even if the PCRA court’s reinstatement of Todd’s right to file a notice of appeal



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       In his third issue, Todd challenges the legality of his sentence. Unlike

challenges to the validity of the guilty plea, pursuant to 42 Pa.C.S.A.

§ 9781(a), “[t]he defendant or the Commonwealth may appeal as of right the

legality of the sentence.” See Commonwealth v. Foster, 960 A.2d 160,

163 (Pa. Super. 2008) (holding that challenges to the legality of the sentence

are non-waivable, and may be brought for the first time on appeal).

       In this case, Todd pled guilty to robbery and aggravated assault, both

of which are felonies of the first degree. Pursuant to 18 Pa.C.S.A. § 1103(1),

the maximum possible sentence for a felony in the first degree is twenty years

of incarceration. The trial court sentenced Todd to ten to twenty years of

incarceration for robbery, and a consecutive term of five to ten years of

incarceration for aggravated assault. Because Todd’s sentences fall within the

statutory maximum, the sentences are legal. Consequently, Todd’s challenge

to the legality of his sentence would be wholly frivolous, as Todd does not

raise, nor would the record support, any other potential challenges implicating

the legality of his sentence.6




____________________________________________


nunc pro tunc encompassed his right to file a post-sentence motion nunc pro
tunc, no such motions were filed.

6 To the extent that Todd’s claims implicate the discretionary aspects of his
sentence, any such claims were waived when Todd failed to raise an objection
at sentencing or in a post-sentence motion to modify the sentence with the
trial court. See Commonwealth v. Hartman, 908 A.2d 316, 319 (Pa. Super.
2006).

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     Finally, our review of the record discloses no other non-frivolous issues

that Todd’s counsel overlooked. Accordingly, we grant counsel’s petition to

withdraw, and affirm the judgment of sentence.

     Petition to withdraw granted, judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/15/19




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