J-S50019-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

KENNETH REICHART

                            Appellant                  No. 1724 MDA 2015


       Appeal from the Judgment of Sentence entered September 3, 2015
                In the Court of Common Pleas of Luzerne County
                Criminal Division at No: CP-40-CR-0000935-2015


BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY STABILE, J.:                        FILED SEPTEMBER 09, 2016

        Appellant, Kenneth Reichart, appeals from the judgment of sentence

entered on September 3, 2015 in the Court of Common Pleas of Luzerne

County following entry of his guilty plea for recklessly endangering another

person (“REAP”), 18 Pa.C.S.A. § 2705.          In the amended brief filed by his

counsel in accordance with Anders v. California, 386 U.S. 738 (1969), as

refined by Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009),

Appellant contends he is displeased with his sentence.              His counsel

concurrently filed a petition for leave to withdraw.      In response, Appellant



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*
    Former Justice specially assigned to the Superior Court.
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filed a pro se brief. Following review, we grant counsel’s petition for leave to

withdraw and affirm Appellant’s judgment of sentence.

      We must address the request to withdraw before reviewing the merits

of Appellant’s issue.   Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.

Super. 2005). As this Court recognized in Commonwealth v. Cartrette,

83 A.3d 1030 (Pa. Super. 2013) (en banc), our Supreme Court’s decision in

Santiago did not change the procedural requirements for requesting

withdrawal from representation.

      Counsel must: 1) petition the court for leave to withdraw stating
      that, after making a conscientious examination of the record,
      counsel has determined that the appeal would be frivolous;
      2) furnish a copy of the brief to the defendant; and 3) advise the
      defendant that he or she has the right to retain private counsel
      or raise additional arguments that the defendant deems worthy
      of the court’s attention.

Id. at 1032 (citing Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa.

Super. 2009)).

      We conclude counsel has satisfied the procedural requirements set

forth in Anders.        In the petition to withdraw, counsel explains his

conclusion, based on “a thorough and diligent review of the record . . . that

this appeal is frivolous.” Appellant’s Amended Brief at 8 (emphasis omitted).

In addition, counsel furnished a copy of the appellate brief to Appellant and

advised Appellant of his right to retain new counsel or act on his own behalf

to raise additional arguments or points for this Court’s consideration.




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      Having concluded counsel satisfied the procedural requirements of

Anders, we must ascertain whether the brief satisfied the substantive

mandates prescribed in Santiago.          In Santiago, our Supreme Court

announced:

      [I]n the Anders brief that accompanies court-appointed
      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.

Santiago, 978 A.2d at 361.

      In the Anders brief, counsel has included a statement of the case that

includes a procedural history of the case. Appellant’s First Amended Brief at

4-5. Counsel has satisfied the first requirement.

      The second required element of an Anders brief is reference to

anything in the record that counsel believes arguably supports the appeal.

Here, counsel raises the question of whether Appellant’s sentence was

contrary to the fundamental norms underlying his sentence.            Id. at 6.

Again, counsel notes Appellant “is displeased with his sentence” because he

did not start a fight but was simply trying to find out if his clothes were in an

apartment.     Id.   Counsel, therefore, has satisfied the second Anders

requirement.




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      Counsel also has satisfied the third element of Anders, stating his

conclusion that the appeal is frivolous. Id. at 8. Finally, counsel provided

his reasons for concluding the appeal is frivolous. Id. at 7-8. Thus, counsel

has satisfied the fourth and final element of the Anders test.

      We find counsel has satisfied the requirements for a petition to

withdraw. He complied with the briefing requirements, as explained above.

He also provided a letter to Appellant on March 18, 2016, advising Appellant

of counsel's conclusion that the appeal was “wholly frivolous” and advising

Appellant of his right to retain substitute counsel or to proceed pro se to

bring any attentional points to this Court's attention.      Counsel also has

served a copy of the petition to withdraw and the Anders brief on Appellant.

      We note that Appellant has filed a response to the petition to withdraw

in the form of a pro se handwritten brief. In the brief, he asserts, inter alia,

he was coerced into a plea deal “that shouldn’t have happened because [he]

wasn’t guilty of nothing.” Appellant’s Pro Se Brief at 1. He again disputes

statements that he was trying to keep warm in the building where he was

arrested.   Id. at 3.   He contends instead that he was in the building to

retrieve new clothes from a woman whom he believed had moved into an

apartment in the building. Id. Appellant also offers an explanation of how a

smoke alarm was triggered in the building. Id. at 4-5.

      In addition, Appellant complains about the duration of his sentence

and suggests it was to run concurrently with an unrelated sentence for retail


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theft.    Id. at 5-6.     He contends he was coerced into taking the plea and

should not have entered a plea because he was “not Guilty of anything but a

Disorderly Conduct.” Id. at 8.         He also complains about his representation

by the Public Defender’s Office and suggests his sentence was actually six to

twelve months, as mistakenly reflected in an order issued by the trial court

on November 4, 2015. Id. at 8-10.1

         As reflected above, we have determined that counsel has satisfied the

technical requirements of Anders and Santiago. After determining that the

technical requirements are satisfied, it is generally incumbent upon this

Court to “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).            However,   as   recognized   in

Commonwealth v. Bennett, 124 A.3d 327 (Pa. Super. 2015):

         By filing a pro se response, as in this case, or hiring private
         counsel, the appellant has essentially filed an advocate’s brief.
         It is well-settled that when an advocate’s brief has been filed on
         behalf of the appellant, our Court is limited to examining only
         those issues raised and developed in the brief. We do not act
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1
   The sentencing transcript reflects that the sentence imposed was a
minimum of six months to a maximum of 23 months in the Luzerne
Correctional Facility. The sentencing guidelines were six to 16 months with
a prior record score of five and an offense gravity score of three. See
Sentencing Transcript, 9/3/15, at 2-4. The reference to a six to twelve
month sentence contained in the November 4, 2015 order, which addressed
issues related to Pa.R.A.P. 1925, was clearly a typographical error.




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       as, and are forbidden from acting as, appellant's counsel.
       Accordingly, our independent review is logically limited in the
       situation presented herein. If we conduct an independent review
       of the entire record, and conclude that there are no non-frivolous
       issues to be found anywhere therein, we have rendered the
       appellant’s right to proceed pro se or to hire private counsel,
       meaningless. There would be no point in allowing a pro se or
       counseled filing if we had already determined any issue raised
       therein was frivolous.

Id. at 333. Therefore, we limit our review to the issue raised in the Anders

brief after which we review the pro se brief as we would review any

advocate’s brief. Id.

       Based upon our review, we find the claim raised by counsel in the

Anders brief to be frivolous. Additionally, all claims raised by Appellant in

his pro se brief, with the possible exception of a premature ineffective

assistance of counsel claim, are also frivolous.2 Therefore, Appellant is not

entitled to relief.


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2
  To the extent Appellant argues his counsel was ineffective, such claim is
not cognizable on direct appeal. See Commonwealth v. Holmes, 79 A.3d
562, 576 (Pa. 2013) (reaffirming Commonwealth v. Grant, 813 A.2d 726,
738 (Pa. 2002) (ineffective assistance of counsel claim to be raised in
petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A.
§§ 9541-9546)). Further, to the extent Appellant challenges his guilty plea,
“[s]ettled Pennsylvania law makes clear that by entering a guilty plea, the
defendant waives his right to challenge on direct appeal all nonjurisdictional
defects except the legality of the sentence and the validity of the plea.”
Commonwealth v. Lincoln, 72 A.3d 606, 609 (Pa. Super. 2013), appeal
denied, 87 A.3d 319 (Pa. 2014). Appellant does not contend in his pro se
brief that his sentence is illegal nor does he challenge the validity off the
plea.




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        Counsel’s petition to withdraw granted.        Judgment of sentence

affirmed.

        Judge Mundy did not participate in the consideration or decision of this

case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/2016




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