J-S07008-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA


                       v.

PABLO ARMANDO VALENZUELA

                             Appellant                       No. 598 MDA 2016


           Appeal from the Judgment of Sentence March 22, 2016
             In the Court of Common Pleas of Luzerne County
            Criminal Division at No(s): CP-40-CR-0001612-2015



BEFORE: BOWES, LAZARUS AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                                       FILED MAY 10, 2017

      Pablo Valenzuela appeals from the judgment of sentence of thirty-

eight to seventy-six months imprisonment imposed following his guilty plea

to robbery of a motor vehicle, robbery with threat of serious bodily injury,

and burglary.    Appellant received a sentence of twelve to twenty-four

months at robbery of a motor vehicle, twenty-two to forty-four months at

robbery–threat of serious bodily injury, and two to four months at the

burglary   charge.          Counsel   has   filed   a   petition   to   withdraw   from

representation pursuant to Anders v. California, 386 U.S. 738 (1967), and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).                       We grant the

petition and affirm.
J-S07008-17



       The following facts were set forth at the guilty plea hearing.       On

February 1, 2015, Appellant and an unspecified number of other individuals

followed Melissa Phillips after she closed an Applebee’s restaurant in West

Hazelton for the evening. While she was driving, a black Accura forced her

to stop. Two persons excited the Accura, entered her car, and forced her to

drive back to the restaurant with the Accura following. The group forced Ms.

Phillips to reopen the restaurant, where she was able to activate a silent

alarm.    Police responded and the black Accura fled the scene; the police

officers followed this car.1      Appellant, who had remained in the restaurant

with Ms. Phillips, was able to flee during the confusion. He kidnapped the

victim, forced her into her vehicle, and left the scene.          He was later

apprehended.

       Based on the foregoing, Appellant was charged with eight separate

counts, five of which were withdrawn in exchange for Appellant’s plea.2 The

trial court accepted the plea and ordered a pre-sentence report. On March

22, 2016, Appellant received the aforementioned sentence.
____________________________________________


1
  The transcript indicates that the vehicle was later stopped by a
Pennsylvania State Police Trooper.
2
  We note that Appellant pleaded guilty at the same proceeding to charges
at a separate docket. He received a sentence of six to twelve months, which
was set consecutive to the instant sentence, resulting in an aggregate
sentence of forty-two to eighty-four months. The Anders brief includes the
sentence imposed at the other docket. Appellant’s brief at 6. However,
Appellant did not file an appeal at the other case.



                                           -2-
J-S07008-17



     Counseled post-sentence motions were not filed. Appellant, however,

simultaneously filed a pro se post-sentence motion seeking reduction of his

sentence and a pro se notice of appeal. These documents were accepted for

filing instead of being forwarded to counsel.    Thereafter, counsel filed a

timely notice of appeal on Appellant’s behalf. In lieu of a Pa.R.A.P. 1925(b)

statement of errors complained of on appeal, counsel filed a statement of

intent to file an Anders brief. Pa.R.A.P. 1925(c)(4).

     Appellant’s counsel thereafter filed a petition to withdraw with an

accompanying Anders brief, which sets forth one issue as arguably

supporting an appeal: Whether the trial court abused its discretion in

imposing consecutive sentences at all charges.

     We do not address the merits of this issue without first reviewing the

petition seeking withdrawal. Commonwealth v. Cartrette, 83 A.3d 1030

(Pa.Super. 2013) (en banc).      Counsel must satisfy the following three

procedural requirements: 1) file a petition for leave to withdraw and state

that, after making a conscientious examination of the record, counsel has

concluded that the appeal is frivolous; 2) provide a copy of the Anders brief

to the defendant; and 3) inform the defendant that he has the right to retain

private counsel or raise, pro se, additional arguments that the defendant

deems worthy of the court's attention. Id. Counsel has filed a petition to

withdraw which complies with these requirements, and Appellant was




                                    -3-
J-S07008-17



provided a copy of the brief and informed of his rights. We thus find that

counsel has complied with the procedural requirements of Anders.

       We    next    examine      whether      the   brief   meets   the   substantive

requirements of Santiago, supra, which states that the Anders brief 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.

       The brief sets forth the procedural history and facts, with citations to

the record.     Counsel has also identified an issue tending to support the

appeal, but nevertheless concludes that the appeal is frivolous with citations

to and discussions of case law that led to counsel’s conclusion that no relief

is due. Hence, we find that counsel has complied with Anders/Santiago.3

____________________________________________


3
   We note that the brief refers only to the issue Appellant wished to raise.
Appellant’s brief at 7. “The universe of potential claims is not limited to
those claims and testimony that counsel's unschooled client believes the
court should consider.” Commonwealth v. Santiago, 978 A.2d 349, 360
(Pa. 2009). However, the remaining portions of the brief indicates that
counsel, who represented Appellant during these proceedings, reviewed the
transcripts of both proceedings and determined that there were no additional
issues to be raised due to the fact Appellant tendered a guilty plea which
limited the number of claims that could be raised on appeal. We are
therefore satisfied that counsel discharged her responsibility to review the
entire record.



                                           -4-
J-S07008-17



      We examine the sole issue identified, which attacks the discretionary

aspects of Appellant’s sentence.     As the brief recognizes, there is no

absolute right to appeal this kind of sentencing claim.        We determine

whether Appellant has invoked this Court's jurisdiction by examining the

following four criteria:

      (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
      [complies with] 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, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. McLaine, 150 A.3d 70, 76 (Pa.Super. 2016) (citing

Commonwealth v. Samuel, 102 A.3d 1001, 1006–07 (Pa.Super. 2014)).

      Finding that the claim was not preserved, we conclude that this Court

lacks jurisdiction to address the claim.   The concise statement of matters

complained of on appeal maintained that the pro se notice of appeal divested

the trial court of jurisdiction to entertain any post-sentence motion, even if

timely preserved. Nevertheless, the Anders brief identified the substantial

question requirement as the impediment to Appellant’s prospects for

appellate relief.

      We find that Appellant failed to preserve the discretionary sentencing

claim for the following reasons.   A pro se motion generally has no legal

effect, due to hybrid representation principles.   See Commonwealth v.

Nischan, 928 A.2d 349, 355 (Pa.Super. 2007) (“[H]is pro se post-sentence

                                    -5-
J-S07008-17



motion was a nullity, having no legal effect.”).     Thus, Appellant’s pro se

motion was a legal nullity, and the sentencing claim was not presented to

the trial court.   “Issues not presented to the sentencing court are waived

and cannot be raised for the first time on appeal.”       Commonwealth v.

Malovich, 903 A.2d 1247, 1251 (Pa.Super. 2006). Since the issue was not

before the trial court, we lack jurisdiction to entertain this discretionary-

aspects-of-sentencing claim.

      We have conducted an independent review of the record, as required

by Commonwealth v. Flowers, 113 A.3d 1246 (Pa.Super. 2015).                We

concur with counsel’s assessment that this appeal is wholly frivolous, and

that there are no preserved non-frivolous issues, as the entry of a guilty plea

severely limits the grounds that may be raised on appeal. “[U]pon entry of

a guilty plea, a defendant waives all claims and defenses other than those

sounding in the jurisdiction of the court, the validity of the plea, and what

has been termed the ‘legality’ of the sentence imposed.” Commonwealth

v. Eisenberg, 98 A.3d 1268, 1275 (Pa. 2014).         Thus, we conclude that

counsel may withdraw.

      Petition of Mary V. Deady, Esquire, to withdraw as counsel is granted.

Judgment of sentence affirmed.




                                     -6-
J-S07008-17



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/10/2017




                          -7-
