J-S39009-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    CHRISTOPHER MYERS                          :
                                               :
                       Appellant               :       No. 573 EDA 2019

      Appeal from the Judgment of Sentence Entered November 21, 2017
               In the Court of Common Pleas of Chester County
             Criminal Division at No(s): CP-15-CR-0000112-2017


BEFORE:      GANTMAN, P.J.E., STABILE, J., and STEVENS*, P.J.E.

MEMORANDUM BY GANTMAN, P.J.E.:                      FILED NOVEMBER 19, 2019

        Appellant, Christopher Myers, appeals nunc pro tunc from the judgment

of sentence entered in the Chester County Court of Common Pleas, following

his negotiated guilty plea to three counts of burglary.1 We affirm and grant

counsel’s petition to withdraw.

        The relevant facts and procedural history of this case are as follows. On

November 21, 2017, Appellant entered a negotiated guilty plea to three counts

of burglary. Before accepting the plea, Appellant completed a written guilty

plea colloquy and the court conducted an oral plea colloquy to confirm

Appellant’s plea was knowing, intelligent, and voluntary. The court sentenced

Appellant that day to the negotiated aggregate sentence of 6½ to 13 years’


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1   18 Pa.C.S.A. § 3502(a)(1).
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* Former Justice specially assigned to the Superior Court.
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imprisonment, plus five years’ probation. Appellant did not file post-sentence

motions or a direct appeal.

        On September 21, 2018, Appellant filed a pro se petition under the Post

Conviction Relief Act (“PCRA”).2 In his petition, Appellant alleged counsel was

ineffective for failing to file requested post-sentence motions and a requested

direct appeal.     Specifically, Appellant claimed he wanted to challenge the

discretionary aspects of his sentence, which required preservation in the trial

court. Appellant sought reinstatement of his post-sentence motion and direct

appeal rights nunc pro tunc. The court appointed counsel on September 25,

2018. On January 24, 2019, with agreement from the Commonwealth, the

court restored only Appellant’s direct appeal rights nunc pro tunc.

        Appellant timely filed a notice of appeal nunc pro tunc on February 22,

2019. On February 25, 2019, the court ordered Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Counsel subsequently filed a statement of intent to file a petition to withdraw

and Anders3 brief, per Pa.R.A.P. 1925(c)(4).

        As a preliminary matter, appellate counsel seeks to withdraw her

representation pursuant to Anders and Commonwealth v. Santiago, 602

Pa. 159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: 1)



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2   42 Pa.C.S.A. §§ 9541-9546.

3   Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

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petition the Court for leave to withdraw, certifying that after a thorough review

of the record, counsel has concluded the issues to be raised are wholly

frivolous; 2) file a brief referring to anything in the record that might arguably

support the appeal; and 3) furnish a copy of the brief to the appellant and

advise him of his right to obtain new counsel or file a pro se brief to raise any

additional points the appellant deems worthy of review. Santiago, supra at

173-79, 978 A.2d at 358-61. Substantial compliance with these requirements

is sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.

2007).

       In Santiago, supra, our Supreme Court addressed the briefing

requirements where court-appointed appellate counsel seeks to withdraw

representation:

          Neither Anders nor McClendon4 requires that counsel’s
          brief provide an argument of any sort, let alone the type of
          argument that counsel develops in a merits brief. To repeat,
          what the brief must provide under Anders are references
          to anything in the record that might arguably support the
          appeal.

                                       *       *   *

          Under Anders, the right to counsel is vindicated by
          counsel’s examination and assessment of the record and
          counsel’s references to anything in the record that arguably
          supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

          [I]n the Anders brief that accompanies court-appointed
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4   Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).

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          counsel’s petition to withdraw, counsel 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.

Id. at 178-79, 978 A.2d at 361. After confirming that counsel has met the

antecedent requirements to withdraw, this Court makes an independent

review of the record to confirm that the appeal is wholly frivolous.

Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super. 2006). See also

Commonwealth v. Dempster, 187 A.3d 266 (Pa.Super. 2018) (en banc).

       Instantly, appellate counsel has filed an amended petition to withdraw.5

The petition states counsel conducted a conscientious review of the record and

determined the appeal is wholly frivolous. Counsel also supplied Appellant

with a copy of the brief and a proper letter explaining Appellant’s immediate

right to retain new counsel or proceed pro se to raise any additional issues

Appellant deems worthy of this Court’s attention. In the Anders brief, counsel

provides a summary of the facts and procedural history of the case and refers


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5 Counsel initially filed an Anders brief on May 29, 2019, but her letter
advising Appellant of his rights was deficient. Consequently, this Court denied
counsel’s withdrawal petition and remanded the matter briefly with
instructions for counsel to file an amended petition to withdraw including a
new letter to Appellant advising him of his immediate right, either pro se or
with privately retained counsel, to file a brief on any additional points
Appellant deemed worthy of review.          On September 3, 2019, counsel
complied.

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to relevant law that might arguably support Appellant’s issue. Counsel further

states the reasons for her conclusion that the appeal is wholly frivolous.

Therefore, counsel has substantially complied with the technical requirements

of Anders and Santiago.

       Counsel raises the following issue on Appellant’s behalf:

          DID APPELLANT ENTER HIS GUILTY PLEA KNOWINGLY,
          VOLUNTARILY AND INTELLIGENTLY?

(Anders Brief at 4).6

       In general, “[a] defendant wishing to challenge the voluntariness of a

guilty plea on direct appeal must either object during the plea colloquy or file

a   motion     to   withdraw     the    plea   within   ten   days   of   sentencing.”

Commonwealth v. Lincoln, 72 A.3d 606, 609-10 (Pa.Super. 2013), appeal

denied, 624 Pa. 688, 87 A.3d 319 (2014) (holding defendant failed to preserve

challenge to validity of guilty plea where he did not object during plea colloquy

or file post-sentence motion to withdraw plea).               See also Pa.R.Crim.P.

720(A)(1), (B)(1)(a)(i) (stating post-sentence motion challenging validity of

guilty plea shall be filed no later than 10 days after imposition of sentence).

       Where the court reinstates direct appeal rights nunc pro tunc, the

defendant is not automatically entitled to reinstatement of his post-sentence

rights nunc pro tunc as well. Commonwealth v. Liston, 602 Pa. 10, 977



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6Appellant has not responded by the deadline to the Anders brief, either pro
se or with new counsel.

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A.2d 1089 (2009). Nevertheless, a PCRA court can reinstate a defendant’s

post-sentence rights nunc pro tunc if the defendant successfully pleads and

proves he was deprived of the right to file and litigate post-sentence motions

as a result of ineffective assistance of counsel. Id. at 19 n.9, 977 A.2d at

1094 n.9 (noting counsel may be deemed ineffective for failing to file post-

sentence motions when claim asserted requires preservation in trial court for

purposes of appellate review).

      Instantly, Appellant entered a guilty plea on November 21, 2017, to

three counts of burglary in exchange for the negotiated sentence of 6½ to 13

years’ imprisonment, plus five years’ probation.      The court immediately

imposed the negotiated sentence.       Appellant did not file post-sentence

motions or a direct appeal.

      On September 21, 2018, Appellant timely filed a pro se PCRA petition

requesting reinstatement of his post-sentence motion and direct appeal rights

nunc pro tunc. Significantly, Appellant did not contend that he wanted to

challenge the validity of his guilty plea. Rather, Appellant claimed only that

he wanted to challenge the discretionary aspects of the sentence imposed,

although the negotiated plea agreement effectively precluded that claim. See

Commonwealth v. Reid, 117 A.3d 777 (Pa.Super. 2015) (holding appellant

was prohibited from challenging discretionary aspects of sentence where court

imposed negotiated sentence following appellant’s guilty plea; one who pleads

guilty and receives negotiated sentence may not then seek discretionary


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review of that sentence).      The Commonwealth agreed to reinstate only

Appellant’s direct appeal rights nunc pro tunc.       Given the issue Appellant

asserted as the basis for his post-sentence motion, the court had no reason

to reinstate post-sentence-motion rights nunc pro tunc. See Liston, supra.

Compare Commonwealth v. Rivera, 154 A.3d 370 (Pa.Super. 2017) (en

banc), appeal denied, 642 Pa. 121, 169 A.3d 1072 (2017) (affirming

reinstatement of post-sentence-motion rights nunc pro tunc because issue

appellant sought to raise, regarding withdrawal of his plea, required

preservation in trial court). Absent a challenge in the trial court to the validity

of his guilty plea, Appellant has no viable claim for appeal.       See Lincoln,

supra; Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i).         Following our independent

review of the record, we agree the appeal is frivolous. See Palm, supra.

Accordingly, we affirm and grant counsel’s amended petition to withdraw.

      Judgment of sentence affirmed; counsel’s amended petition to withdraw

is granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/19/19




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