J-S18016-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KYLE MICHAEL HOPPES                        :
                                               :
                       Appellant               :   No. 1809 MDA 2018

          Appeal from the Judgment of Sentence Entered June 15, 2017
     In the Court of Common Pleas of Schuylkill County Criminal Division at
                        No(s): CP-54-CR-0001972-2016


BEFORE:      BOWES, J., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY NICHOLS, J.:                                FILED JUNE 18, 2019

        Appellant Kyle Michael Hoppes appeals from the judgment of sentence

imposed after a jury convicted him of receiving stolen property, firearms not

to be carried without a license, possession of drug paraphernalia, and two

counts each of possession of a controlled substance and possession of a

firearm with altered manufacturer’s number.1 Appellant’s counsel has filed a

petition to withdraw and an Anders/Santiago brief.2 We affirm and grant

counsel’s petition to withdraw.


____________________________________________


*   Former Justice specially assigned to the Superior Court.

118 Pa.C.S. §§ 3925(a); 6106(a)(1); 35 P.S. § 780-113(a)(32); (a)(16); and
18 Pa.C.S. § 6110.2(a), respectively.

2Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
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        The trial court summarized the underlying procedural history of this

matter as follows:

        Following a jury trial on April 10, 2017, [Appellant] was found
        guilty of [the foregoing offenses].       Two days prior to the
        sentencing hearing, [Appellant] filed a pro se motion to terminate
        continued representation by his trial counsel, Andrew Zelonis,
        Esquire [(Attorney Zelonis)], and to receive appointed counsel.
        The court directed that the issue would be heard immediately
        preceding the sentencing hearing.

        At the time of the hearing, [Appellant’s] motion to terminate his
        trial counsel’s representation was granted and the sentencing
        hearing was continued to allow [Appellant] time to obtain private
        counsel or apply for counsel from the Schuylkill County Public
        Defender’s Office. Attorney Michael Stine[, Esquire (Attorney
        Stine)] of the Schuylkill County Public Defender’s Office
        subsequently undertook [Appellant’s] representation.

        At the sentencing hearing on June 15, 2017, at which Attorney
        Stine represented [Appellant], the court directed, inter alia, that
        [Appellant] serve an aggregate forty-eight months to ninety-six
        months term of incarceration followed by three years[] probation.[]
        No direct appeal followed.

        On May 22, 2018, [Appellant] filed a motion for post-conviction
        collateral relief [under the Post Conviction Relief Act3 (PCRA)] in
        which he complained about the representation he had received
        from both Attorneys Zelonis and Stine. Attorney Robert Reedy[,
        Esquire (Attorney Reedy)] was appointed to represent [Appellant]
        in the [PCRA] proceedings and he was given the opportunity to
        file any desired counseled amendments to [Appellant]’s pro se
        filing. Attorney Reedy filed an amended motion for [Appellant] on
        July 12, 2018 and a hearing was held before the court on August
        3, 2018.

        Essentially, [Appellant] claimed that Attorney Zelonis had been
        ineffective in not pursuing a pre-trial challenge to a vehicle search
        which ultimately led police to discover evidence of crime and by
____________________________________________


3   42 Pa.C.S. §§ 9541-9546.



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       withdrawing a suppression motion he had filed for [Appellant].[4]
       Additionally, [Appellant] contended that Attorney Stine had been
       ineffective in failing to file a direct appeal for him following the
       sentencing hearing despite [Appellant]’s requests that an appeal
       be filed. After hearing evidence and receiving argument on the
       motion, the court granted [Appellant] relief by allowing him to file
       a direct appeal nunc pro tunc.

       On November 2, 2018, [Appellant] filed the pending direct appeal
       to the Pennsylvania Superior Court from the underlying
       sentencing order of June 15, 2017. Thereafter, [Appellant] was
       directed to and did file a statement of matters complained of on
       appeal. In his statement filed November 30, 2018, [Appellant]
       does not set forth issues related to errors this court allegedly
       made prior to, during or after sentencing. Rather, he simply
       identifies manners by which his trial counsel, Attorney Zelonis,
       allegedly had provided ineffective representation—namely, by
       failing “to challenge the probable cause to search the locked glove
       box of the car” and by having [Appellant] withdraw the
       suppression motion.

       As noted in this court’s order of October 10, 2018 which granted
       [Appellant] the right to file a direct appeal nunc pro tunc, the
       issues collateral to the direct appeal—namely, those involving
       alleged ineffectiveness of Attorney Zelonis—were not being
       addressed by the court as it was not found the appropriate time
       to do so because the case was being returned to the direct appeal
       stage nunc pro tunc. [Appellant]’s ability to raise collateral issues
       at the proper time, if so desired, had not been impacted by the
       October 10, 2018 order. In his November 30, 2018 statement of
       complaints, [Appellant] does not contend that this court erred in
       so determining and it is believed that pursuant to controlling
       appellate authority, it did not do so. As no issues, however,
       pertinent to a direct appeal have been identified in the statement
       of matters complained of on appeal, none can be addressed
       herein.

Trial Ct. Op., 12/17/18, at 1-4 (citation omitted).

____________________________________________


4 At the conclusion of the PCRA hearing, the trial court noted: “The only
evidence heard about the merits of the suppression . . . was [Attorney]
Zelonis’ opinion that it did not have merit.” See N.T. PCRA Hr’g, 8/3/18, at
61-62.

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      “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. Wimbush, 951 A.2d 379, 382 (Pa.

Super. 2008) (citation omitted).    Counsel must comply with the technical

requirements for petitioning to withdraw by (1) filing a petition for leave to

withdraw stating that, after making a conscientious examination of the record,

counsel has determined that the appeal would be frivolous; (2) providing a

copy of the brief to Appellant; and (3) advising Appellant that he has the right

to retain private counsel, proceed pro se, or raise additional arguments that

Appellant considers worthy of the court’s attention. See Commonwealth v.

Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc).

      Additionally, counsel must file a brief that meets the requirements

established by the Pennsylvania Supreme Court in Santiago, 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.

      Only after determining that counsel has satisfied these technical

requirements, 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.


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2015) (citations and footnote omitted); accord Commonwealth v. Yorgey,

188 A.3d 1190, 1197 (Pa. Super. 2018) (en banc).

      Here, Appellant’s counsel has complied with the procedures for seeking

withdrawal by filing a petition to withdraw, sending Appellant a letter

explaining   his   rights,   and   supplying   Appellant   with   a   copy   of   the

Anders/Santiago brief.         See Goodwin, 928 A.2d at 290.             Moreover,

counsel’s    Anders/Santiago       brief complies with     the    requirements of

Santiago. Counsel includes a summary of the relevant factual and procedural

history, refers to the portions of the record that could arguably support

Appellant’s claims, and sets forth the conclusion that the appeal is frivolous.

Counsel explains his reasoning and supports his rationale with citations to the

record and pertinent legal authority. Therefore, counsel has complied with

the technical requirements for withdrawal, Santiago, 978 A.2d at 361, and

we will independently review the record to determine if any non-frivolous

issues are raised. See Flowers, 113 A.3d at 1250.

      Initially, we note that counsel identifies a challenge relating to trial

counsel’s ineffectiveness.     See Anders/Santiago Brief at 11.              Counsel

acknowledges that that this matter is currently in the posture of a direct

appeal. Counsel concludes that claims of ineffectiveness cannot be raised on

direct appeal. Id. at 12.

      Generally, a criminal defendant may not assert claims of ineffective

assistance of counsel on direct appeal. See Commonwealth v. Holmes, 79




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A.3d 562, 577-80 (Pa. 2013). Instead, such claims are to be deferred to PCRA

review. Id.

      However, our Supreme Court has recognized three exceptions to the

general rule.   In Holmes, the Supreme Court held that a trial court has

discretion to address ineffectiveness claims on direct review in cases where

(1)   there   are   extraordinary   circumstances   in   which   trial   counsel’s

ineffectiveness is apparent from the record and “meritorious to the extent that

immediate consideration best serves the interests of justice[;]” or (2) “there

is good cause shown and the defendant knowingly and expressly waives his

entitlement to seek subsequent PCRA review of his conviction and sentence.”

Holmes, 79 A.3d at 577. More recently, our Supreme Court adopted a third

exception, which requires “trial courts to address claims challenging trial

counsel’s performance where the defendant is statutorily precluded from

obtaining subsequent PCRA review.” Commonwealth v. Delgros, 183 A.3d

352, 361 (Pa. 2018) (citations omitted).

      Here, the record does not indicate that extraordinary circumstances

exist, or that Appellant waived his right to PCRA review. See Holmes, 79

A.3d at 577. Further, Appellant is not statutorily barred from seeking PCRA

relief. See Delgros, 183 A.3d at 361.

      Because our independent review of the record confirms that none of the

exceptions apply, we agree with counsel’s conclusion that Appellant’s

ineffectiveness claim cannot be considered on direct appeal. Moreover, the

record does not reveal any additional, non-frivolous issues in this appeal. See

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Yorgey, 188 A.3d at 1197.     Accordingly, we grant counsel’s petition to

withdraw and affirm the judgment of sentence.

     Judgment of sentence affirmed.     Petition for leave to withdraw as

counsel granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/18/2019




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