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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHRISTOPHER EVANS                          :
                                               :
                       Appellant               :   No. 161 MDA 2018

           Appeal from the Judgment of Sentence September 7, 2016
    In the Court of Common Pleas of Lackawanna County Criminal Division at
                       No(s): CP-35-CR-0000494-2016


BEFORE:      BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY McLAUGHLIN, J.:                      FILED: NOVEMBER 8, 2018

        Christopher Evans appeals from the judgment of sentence of 21 to 42

months of imprisonment, imposed on September 7, 2016, following a guilty

plea to one count of Delivery of a Controlled Substance.1             In addition,

appointed counsel, Kurt T. Lynott, Esq., seeks to withdraw his representation

of Evans pursuant to Anders v. California, 386 U.S. 738 (1967). We affirm

and grant counsel’s petition to withdraw.

        We derive the following statement of facts and procedural background

of this case from the trial court opinion. See Trial Ct. Op., 03/21/2018. In

February 2016, the Olyphant Police Department received information from a

confidential informant (C.I.) that Evans was selling Subutex, a narcotic used

____________________________________________


*    Retired Senior Judge assigned to the Superior Court.

1   35 P.S. § 780-113(a)(30).
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to treat opioid addiction. Following an investigation that included a controlled

transaction in which Evans sold the narcotic to the C.I., police arrested Evans.

      In May 2016, Evans pleaded guilty to the delivery charge.        Prior to

entering his plea, Evans executed a written plea colloquy, indicating that he

was aware of the charge, the maximum penalty he was facing, and his

satisfaction with counsel. In addition, the court conducted an oral colloquy to

determine whether Evans was aware of the rights he was relinquishing,

whether he was satisfied with counsel, and whether he admitted to facts

supporting the crime. Thereafter, the court accepted his plea.

      In September 2016, following a presentence investigation, the court

imposed sentence as indicated, which fell within the mitigated range of the

sentencing guidelines. Evans did not file a post sentence motion or a direct

appeal.

      In August 2017, Evans timely and pro se filed a petition pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. In his petition,

Evans claimed ineffective assistance of plea counsel on three grounds:

      (1) Counsel unlawfully induced his plea, promising Evans that he
      would receive a county sentence;

      (2) Counsel failed to request a competency hearing or investigate
      Evans’ mental health; and

      (3) Counsel failed to file a post-sentence motion or direct appeal
      to challenge:

          (a) the validity of his plea, and

          (b) legal and discretionary aspects of his sentence.



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See Evans’ PCRA Petition, 08/10/2017, at 3-4. The court appointed Attorney

Lynott as PCRA counsel. In November 2017, Attorney Lynott filed a petition

to withdraw and a no-merit letter.2            However, following an independent

review, the court determined that Evans’ petition warranted relief “wherein

the petitioner was denied an opportunity to file a direct appeal.” PCRA Ct.

Order, 01/09/2018.         Accordingly, the court denied counsel’s petition to

withdraw and reinstated Evans’ right to appeal nunc pro tunc. Id. The court

did not grant Evans’ leave to file a post-sentence motion nunc pro tunc. Id.

       Evans timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement, preserving only two issues asserting ineffective assistance of plea

counsel. The court issued a responsive opinion.

       In this Court, Attorney Lynott filed a petition to withdraw and an Anders

brief. Following our review, we concluded that counsel’s brief was deficient.

We therefore denied the petition and remanded with instructions for counsel

to file a compliant Anders brief or an advocate’s brief. Counsel has complied

with our instructions, filing a new Anders brief as well as a petition to

withdraw. Counsel has raised the following issues:

       [1. Whether plea] counsel was ineffective for allowing [Evans] to
       enter an unlawful plea of guilty for a county sentence when no
       county sentence was imposed.




____________________________________________


2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

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      [2. Whether plea] counsel was ineffective for failing to request a
      competency hearing or determining his mental capacity prior to
      allowing [Evans] to plead guilty.

Evans’ Br. at 4.

      “When faced with a purported Anders brief, this Court may not review

the merits of any possible underlying issues without first examining counsel’s

request to withdraw.”    Commonwealth v. Goodwin, 928 A.2d 287, 290

(Pa.Super. 2007) (en banc). Prior to withdrawing as counsel on direct appeal

under Anders, counsel must file a brief that meets the requirements

established by the Pennsylvania Supreme Court in Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009), namely:

      (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, 978 A.2d at 361.

      Counsel also must provide a copy of the Anders brief to his client.
      Attending the brief must be a letter that advises the client of his
      right to: “(1) retain new counsel to pursue the appeal; (2) proceed
      pro se on appeal; or (3) raise any points that the appellant deems
      worthy of the court[’]s attention in addition to the points raised
      by counsel in the Anders brief.” Commonwealth v. Nischan,
      928 A.2d 349, 353 (Pa.Super. 2007), appeal denied, 594 Pa. 704,
      936 A.2d 40 (2007).



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Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa.Super. 2014). After

determining that counsel has satisfied these technical requirements of Anders

and Santiago, only then may this Court “conduct an independent review of

the record to discern if there are any additional, non-frivolous issues

overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250

(Pa. Super. 2015) (citations and footnote omitted).

       In the instant matter, Attorney Lynott’s Anders brief complies with the

above-stated requirements. Namely, he includes a summary of the relevant

factual and procedural history; he refers to the portions of the record that

could arguably support Appellant’s claims; and he sets forth his conclusion

that Appellant’s appeal is frivolous.3 He explains his reasoning and supports

his rationale with citations to the record as well as pertinent legal authority.

Attorney Lynott has supplied Evans with a copy of his Anders brief and a

letter explaining the rights enumerated in Nischan. Accordingly, counsel has

complied with the technical requirements for withdrawal.          Thus, we may

independently review the record to determine if the issues Evans raises are

frivolous and to ascertain if there are other non-frivolous issues he may pursue

on appeal.

        In both of the claims raised in this direct appeal, Evans asserts plea

counsel’s ineffectiveness.      “[A]s a general rule, a petitioner should wait to

raise claims of ineffective assistance of trial counsel until collateral review.”
____________________________________________


3 Counsel concludes that “[t]he case presents no non-frivolous issues for
review.” Evans’ Brief at 9.

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Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002) (emphasis added).

Our Supreme Court has recognized two limited exceptions. In the context of

a direct appeal, courts may entertain ineffectiveness claims where: (1) the

claim is apparent from the record and meritorious, to the extent immediate

consideration best serves the interests of justice; or (2) where good cause is

shown and the defendant knowingly and expressly waives entitlement to seek

subsequent PCRA review. Commonwealth v. Holmes, 79 A.3d 562, 563-64

(Pa. 2013). However, neither Holmes exception applies to Evans’ claims, as

their merit is not readily apparent from the record, and Evans has not

demonstrated good cause and expressly waived subsequent collateral review.

Id. Thus, pursuant to Grant, we dismiss Evans’ ineffectiveness claims without

prejudice to his right to pursue them in a timely petition for collateral relief.

Grant, 813 A.2d at 738.

      We have independently reviewed the record and find no issues of

arguable merit that Evans could pursue on appeal.         Evans completed an

extensive written guilty plea colloquy, and the lower court conducted an oral

colloquy prior to accepting Evans’ plea as knowing, intelligent, and voluntary.

See Commonwealth v. Hart, 174 A.3d 660, 667 (Pa.Super. 2017) (“[T]o be

valid, a plea must be voluntary, knowing, and intelligent.”) (citing

Commonwealth v. Persinger, 615 A.2d 1305, 1307 (Pa. 1992)). There is

no evidence of record undermining the validity of Evans’ plea. See Notes of

Testimony (N.T. Plea), 10/19/2017 (indicating Evans’ waiver of certain

enumerated constitutional rights, admission to facts underlying charge,

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awareness of maximum potential sentence, his satisfaction with counsel, and

assertion that no promises made in exchange for plea); Written Plea Colloquy,

05/23/2016 (same); see, e.g., Commonwealth v. Pier, 182 A.3d 476, 480

(Pa.Super. 2018) (“A person who elects to plead guilty is bound by the

statements he makes in open court while under oath and he may not later

assert grounds for withdrawing the plea which contradict the statements he

made at his plea colloquy.”) (quoting Commonwealth v. Pollard, 832 A.2d

517, 523 (Pa.Super. 2003)).

      We note further that Evans did not properly preserve any challenge to

discretionary aspects of his sentence, as he failed to preserve such a claim

during sentencing or in a post-sentence motion.      See Commonwealth v.

Leatherby, 116 A.3d 73, 83 (Pa.Super. 2015); see also PCRA Ct. Order,

01/09/2018 (failing to grant Evans leave to file post-sentence motion nunc

pro tunc).   Finally, following Evans’ plea and completion of a presentence

investigation report, the court imposed a sentence falling within the mitigated

range of the sentencing guidelines. Based on our review of the record, we

discern no issue of arguable merit regarding the legality of this sentence.

      Petition to withdraw granted. Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/8/2018


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