J-S64027-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 PHILLIP SHEPPARD                        :
                                         :
                      Appellant          :    No. 3696 EDA 2016

        Appeal from the Judgment of Sentence November 21, 2016
           In the Court of Common Pleas of Philadelphia County
          Criminal Division at No(s): CP-51-CR-0007072-2015


BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY OLSON, J.:                        FILED NOVEMBER 09, 2018

     Appellant, Phillip Sheppard, appeals from the judgment of sentence

entered on November 21, 2016.       In this direct appeal, Appellant’s court-

appointed counsel filed both an application to withdraw as counsel and an

accompanying brief pursuant to Commonwealth v. McClendon, 434 A.2d

1185 (Pa. 1981), and its federal predecessor, Anders v. California, 386 U.S.

738 (1967).        We conclude that Appellant’s counsel complied with the

procedural requirements necessary      to    withdraw.   Furthermore, after

independently reviewing the record, we conclude that the appeal is wholly

frivolous. We, therefore, grant counsel’s application to withdraw and affirm

the judgment of sentence.

     The factual background and procedural history of this case are as

follows. On May 6, 2015, Appellant chased William Seaglass down the street
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while wielding a machete. On November 21, 2016, Appellant pled guilty to

simple assault1 and possessing an instrument of crime.2         The trial court

immediately sentenced him to an aggregate term of 9 to 23 months’

imprisonment. This timely appeal followed.3

        Appellant’s counsel raises three issues in her Anders brief:

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

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

        3. Was [Appellant’s] sentence legal? Was the sentence imposed
           upon [Appellant] by the [trial] court manifestly excessive?

Anders Brief at 3.

        Before reviewing the merits of this appeal, we must first determine

whether counsel has fulfilled the necessary procedural requirements for

withdrawing as counsel. See Commonwealth v. Blauser, 166 A.3d 428,

431 (Pa. Super. 2017) (citation omitted). To withdraw under Anders, court-

appointed counsel

        must file a petition averring that, after a conscientious
        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
____________________________________________


1   18 Pa.C.S.A. § 2701(a)(3).

2   18 Pa.C.S.A. § 907.

3 Appellant and the trial court complied with Pennsylvania Rule of Appellate
Procedure 1925.

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        right to retain new counsel, proceed pro se, or raise any additional
        points worthy of this Court’s attention.

Commonwealth v. Cook, 175 A.3d 345, 348 (Pa. Super. 2017) (cleaned up).

        If counsel meets all of the above obligations, “it then becomes the

responsibility of the reviewing court 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. Santiago, 978 A.2d 349, 355

n.5 (Pa. 2009), quoting McClendon, 434 A.2d at 1187. It is only when both

the procedural and substantive requirements are satisfied that counsel will be

permitted to withdraw. In the case at bar, counsel has met all of the above

procedural obligations.4        We now turn to whether this appeal is wholly

frivolous.

        The first issue raised in counsel’s Anders brief is whether Appellant

entered a knowing, intelligent, and voluntary plea. The trial court conducted

a full colloquy with Appellant at the guilty plea hearing.      Appellant stated,

under oath, that he was pleading guilty of his own free will. N.T., 11/21/16,

at 7.    He further stated that no one had threatened or coerced him into

pleading guilty. Id. Appellant stated that he was not promised anything for

his guilty plea. Id. at 6-7. He stated that he had reviewed the case with his

attorney and that he was satisfied with his attorney’s representation. Id. at



____________________________________________


4 Although we gave Appellant additional time, he did not file a response to
counsel’s Anders brief.

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12-13. Appellant stated that he reviewed the written guilty plea colloquy with

his attorney and understood its contents, including the rights he was giving

up by pleading guilty. Id. at 11-12. He stated he was not under the influence

of drugs or alcohol. Id. at 5. He stated that he did not currently suffer from

any mental illness. Id. The trial court apprised him of the maximum penalty

he could face. Id. at 10-11. Appellant thereafter pled guilty to simple assault

and possessing an instrument of crime.             Thus, Appellant knowingly,

voluntarily, and intelligently pled guilty. Therefore, the first issue raised in

counsel’s Anders brief is frivolous.

      The second issue raised in counsel’s Anders brief is whether Appellant

was competent to plead guilty.         Our Supreme Court has explained that “a

defendant must be competent to be tried, convicted, or sentenced.             A

defendant is legally incompetent if he is substantially unable to understand

the nature or object of the proceedings against him or to participate and assist

in his defense.” Commonwealth v. Bomar, 826 A.2d 831, 860 (Pa. 2003)

(cleaned up).   In this case, the record reflects that Appellant was able to

understand the nature and object of the proceedings against him and to assist

with his defense.   Although Appellant suffered from post-traumatic stress

disorder when he was in the armed forces over 20 years ago, he does not

currently suffer from any mental abnormalities. Moreover, he was able to

consult with his attorney prior to the combined plea and sentencing hearing.

He also consulted with counsel during that hearing.      There is no evidence


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indicating that Appellant failed to understand the nature of the proceedings

and its object. There is similarly no evidence that Appellant was unable to

assist with his own defense.       Accordingly, the second issue in counsel’s

Anders brief is frivolous.

      The final issues presented in counsel’s Anders brief are whether the

sentence imposed was illegal and/or manifestly excessive.         We review an

illegal sentencing claim de novo and our scope of review is plenary.

Commonwealth v. Rodriguez, 174 A.3d 1130, 1147 (Pa. Super. 2017),

appeal denied, 186 A.3d 941 (Pa. 2018) (citation omitted). Possessing an

instrument of crime is a first-degree misdemeanor for which the maximum

penalty is five years’ imprisonment. 18 Pa.C.S.A. §§ 907, 1104(1). Simple

assault is a second-degree misdemeanor for which the maximum penalty is

two years’ imprisonment.        18 Pa.C.S.A. §§ 2701, 1104(2).     As Appellant

received an aggregate prison term less than the maximum sentences for both

offenses to which he pled guilty, the illegal sentencing claim is frivolous.

      The second portion of Appellant’s final issue challenges the discretionary

aspects of his sentence.      Pursuant to statute, Appellant does not have an

automatic right to appeal the discretionary aspects of his sentence. See 42

Pa.C.S.A. § 9781(b).         Instead, Appellant must petition this Court for

permission to appeal the discretionary aspects of his sentence. Id.

      In order to reach the merits of a discretionary aspects claim,

      we must engage in a four part analysis to determine: (1) whether
      the appeal is timely; (2) whether the appellant preserved his or

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      her issue; (3) whether the appellant’s brief includes a concise
      statement of the reasons relied upon for allowance of appeal with
      respect to the discretionary aspects of sentence; and (4) whether
      the concise statement raises a substantial question that the
      sentence is appropriate under the Sentencing Code.

Commonwealth v. Foust, 180 A.3d 416, 439 (Pa. Super. 2018) (cleaned

up). Appellant filed a timely notice of appeal; however, he did not preserve a

challenge to the discretionary aspects of his sentence at the sentencing

hearing or via a post-sentence motion.     Hence, the discretionary aspects

challenge is frivolous.

      In sum, we conclude that the issues raised in counsel’s Anders brief are

wholly frivolous.   Furthermore, after an independent review of the entire

record, we conclude that no other issue of arguable merit exists. Therefore,

we grant counsel’s request to withdraw. Having determined that the issues

raised on appeal are wholly frivolous, we affirm the judgment of sentence.

      Application to withdraw as counsel granted.     Judgment of sentence

affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/9/18




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