J-S46033-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
                   Appellee               :
                                          :
             v.                           :
                                          :
DARRIN M. BATTLE,                         :
                                          :
                   Appellant              :          No. 1979 MDA 2013

       Appeal from the Judgment of Sentence entered on August 13, 2013
                in the Court of Common Pleas of Luzerne County,
                 Criminal Division, No. CP-40-CR-0000273-2013

BEFORE: SHOGAN, LAZARUS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                       FILED AUGUST 20, 2014



imposed following his conviction of one count each of delivery and

possession with intent to deliver a controlled substance.1 Additionally, Paul



Withdraw as Counsel and an accompanying brief pursuant to Anders v.

California



Motion to Withdraw as Counsel.

        Battle was arrested after selling heroin to a confidential informant.

Following a trial, a jury convicted Battle of the above offenses.         At

sentencing, the trial court found that the drug sale took place within 1000

1
    See 35 P.S. § 780-113(a)(30).
J-S46033-14

feet of a school, and applied the school zone sentencing enhancement2

before sentencing Battle to serve 24 to 60 months in prison. Battle filed a

post-sentence Motion to Modify Sentence, which the trial court denied on



                                                                                a

Petition to Withdraw as counsel. On that same date, the trial court granted



appellate counsel.

        Attorney Galante has filed a brief pursuant to Anders which raises the

following questions for our review:

        1.

             evidence was insufficient as a matter of law to convict [Battle]
             of delivery of a controlled substance?

        2.


Anders Brief at 4. Attorney Galante filed a separate Motion to Withdraw as

Counsel on May 13, 2014. Battle filed neither a pro se brief, nor retained

alternate counsel for this appeal.

                                    Anders brief, this Court may not review the

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

withdraw        Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super. 2010)

(citation omitted). Pursuant to Anders, when counsel believes an appeal is

2
    See 18 Pa.C.S.A. § 6317.



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J-S46033-14

frivolous and wishes to withdraw from representation, he/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


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)
             and

      (4)
             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                                                             Anders]

                                                      t its own review of the



                                               Edwards, 906 A.2d at 1228

(citation omitted).


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J-S46033-14

      Here, Attorney Galante has substantially complied with each of the

procedural requirements of Anders.       Attorney Galante indicates that he

reviewed the record and determined that an appeal would be frivolous.

Further, Attorney Galante    Anders brief comports with the requirements

set forth by the Supreme Court of Pennsylvania in Santiago. Finally, the

record contains a copy of the letter that Attorney Galante sent to Battle,

advising him of his rights to proceed pro se or retain alternate counsel and

file additional claims, and stating Attorney Galante

permission to withdraw.

      Before we may address the merits of the issues raised in the Anders

Brief, we must first determine whether Battle has preserved any claims for

appellate review.   Whenever the trial court orders an appellant to file a

concise statement of matters complained of on appeal pursuant to Pa.R.A.P.

1925(b), the appellant must comply in order to preserve his claims for

appellate review. Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998).

A failure to file a timely Rule 1925(b) concise statement after entry of an

order requesting the statement, regardless of the length of the delay, results

in automatic waiver.   See Commonwealth v. Thompson, 39 A.3d 335,

338 (Pa. Super. 2012). A failure by appointed counsel to file a timely court-

ordered concise statement on behalf of a criminal appellant constitutes per

se ineffectiveness. Id. at 340. Under Rule 1925(c)(3), the remedy for per

se ineffectiveness in criminal cases is no longer collateral relief, but to



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J-S46033-14

remand to the trial court for the filing of a Rule 1925(a) opinion addressing

the issues raised in an untimely Rule 1925(b) concise statement.         Id. at

341.

       Here, the trial court ordered Battle to file a Rule 1925(b) concise

statement of matters complained of on appeal on or before November 7,

2013. Attorney Galante did not file a Concise Statement on behalf of Battle

until December 19, 2013.       Thereafter, the trial court entered its Pa.R.A.P.

1925(a) Opinion, wherein it refused to address the issues raised in the

untimely Concise Statement filed by Attorney Galante.



court-ordered deadline constitutes per se ineffective assistance of counsel.

See Thompson, 39 A.3d at 340. Ordinarily, we would remand for the trial

court to file a Rule 1925(a)

untimely Concise Statement. See id. However, our independent review of

the record discloses a sentencing error made by the trial court when it

applied the school zone sentencing enhancement, 18 Pa.C.S.A. § 6317.

       In Alleyne v. United States, 133 S. Ct. 2151, 2155-56, 2163 (2013),

the United States Supreme Court ruled that any fact increasing the

mandatory minimum sentence for a crime is considered an element of the

crime to be submitted to the jury and found beyond a reasonable doubt.

The Alleyne decision, therefore, renders those Pennsylvania mandatory

minimum sentencing statutes that do not pertain to prior convictions



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J-S46033-14

constitutionally infirm insofar as they permit a judge to automatically



standard. Commonwealth v. Watley, 81 A.3d 108, 117 (Pa. Super. 2013)

(en banc); see also id. at 117 n.4 (wherein this Court lists the statutes,

including section 6317, that are unconstitutional due to the Alleyne

decision).3

      Instantly, the jury issued no finding as to whether Battle committed

the offenses of delivery and possession with intent to deliver within 1,000

feet of a school. See 18 Pa.C.S.A. § 6317(a). Pursuant to Alleyne, the trial

court erred by deciding this point at sentencing, as a sentencing factor under

section 6317(b). See

judgment of sentence and remand for resentencing.4          Further, because




3
  A sentencing claim that invokes the reasoning of Alleyne implicates the
legality of the sentence. Commonwealth v. Munday, 78 A.3d 661, 664
(Pa. Super. 2013). Although Battle failed to raise this claim in either his
post-trial Motion to Modify Sentence or his Concise Statement, a challenge
to an illegal sentence cannot be waived and may be reviewed sua sponte by
this Court. Commonwealth v. Mears, 972 A.2d 1210, 1211 (Pa. Super.
2009).

4
  Upon remand, the trial court may conduct a sentencing hearing, if
necessary. If Battle chooses to appeal his judgment of sentence, he may
pursue the claims raised in his Concise Statement (and any others he may
wish to raise) by filing a timely notice of appeal. Upon any further appeal,
counsel is directed to observe the dictates of Pa.R.A.P. 1925(b).



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J-S46033-14




Withdraw as Counsel.5

      Judgment of Sentence vacated; case remanded for further proceedings

consistent with this Memorandum. Motion to Withdraw as Counsel denied.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/20/2014




5
  Upon remand, the trial court may appoint new counsel for Battle, if
necessary.


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