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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT
                                                           OF
                                                      PENNSYLVANIA
                           Appellee

                     v.

MICHAEL JONES,

                           Appellant                 No. 1129 EDA 2018


        Appeal from the Judgment of Sentence Entered April 9, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0015762-2013


BEFORE: BENDER, P.J.E., BOWES, J., and NICHOLS, J.

MEMORANDUM BY BENDER, P.J.E.:                        FILED MARCH 12, 2019

      Appellant, Michael Jones, appeals from the judgment of sentence of 42

to 84 months’ incarceration, imposed after he pled guilty to robbery and

possessing an instrument of crime. On appeal, Appellant seeks to challenge

the validity of his guilty plea, his competency to enter that plea, and the

legality of his sentence. Additionally, Appellant’s counsel, Demetra P. Mehta,

Esq., seeks to withdraw her representation of Appellant pursuant to Anders

v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009). After careful review, we affirm Appellant’s judgment of

sentence and grant counsel’s petition to withdraw.

      The facts underlying Appellant’s conviction are not relevant to our

disposition of his appeal. The trial court summarized the procedural history

of his case, as follows:
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             On January 8, 2015, [Appellant] pleaded guilty to robbery
      and possession of an instrument of crime. On April 9, 2015, the
      trial court sentenced [Appellant] to a fully mitigated sentence of
      42 months to 84 months of incarceration followed by three years
      of probation.

            On August 12, 2016. [Appellant] filed a timely petition
      pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S. §
      9541, et seq.[] [C]ourt-appointed counsel subsequently filed an
      amended PCRA petition. The PCRA petitions claimed that trial
      counsel provided ineffective assistance of counsel because (1)
      counsel failed to file a post-trial motion and appeal as requested
      by [Appellant], and (2) counsel failed to object to the imposition
      of an illegal or unconstitutional mandatory sentence.

           On April 6, 2018, the Commonwealth agreed to the entry of
      an order reinstating [Appellant’s] right to a direct appeal. Thus,
      on April 18, 2018, [Appellant] filed this timely appeal.

Trial Court Opinion, 5/23/18, at 1.

      The trial court ordered Appellant to file a Pa.R.A.P. 1925(b) statement

and, in response, Attorney Mehta filed a Rule 1925(c)(4) statement of her

intent to seek to withdraw. The trial court filed an opinion on May 23, 2018.

      On August 28, 2018, Attorney Mehta filed with this Court a petition to

withdraw from representing Appellant. That same day, counsel also filed an

Anders brief, discussing the following issues Appellant seeks to raise on

appeal:

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

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

      3. Was [Appellant’s] sentence legal?

Anders Brief at 6. Attorney Mehta concludes that these issues are frivolous,

and that Appellant has no other, non-frivolous claims he could pursue herein.

Accordingly,

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     this Court must first pass upon counsel’s petition to withdraw
     before reviewing the merits of the underlying issues presented by
     [the appellant]. Commonwealth v. Goodwin, 928 A.2d 287,
     290 (Pa. Super. 2007) (en banc).

     Prior to withdrawing as counsel on a direct appeal under Anders,
     counsel must file a brief that meets the requirements established
     by our Supreme Court in Santiago. The brief 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. Counsel also must provide a copy of
     the Anders brief to his client. Attending the brief must be a letter
     that advises the client of his right to: “(1) retain new counsel to
     pursue the appeal; (2) proceed pro se on appeal; or (3) raise any
     points that the appellant deems worthy of the court[’]s attention
     in addition to the points raised by counsel in the Anders brief.”
     Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super.
     2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014). After

determining that counsel has satisfied these technical requirements of Anders

and Santiago, this Court must then “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).




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      In this case, Attorney Mehta’s Anders brief complies with the above-

stated requirements. Namely, she includes a summary of the relevant factual

and procedural history, she refers to portions of the record that could arguably

support Appellant’s claim, and she sets forth her conclusion that Appellant’s

appeal is frivolous.    She also explains her reasons for reaching that

determination, and supports her rationale with citations to the record and

pertinent legal authority.   Attorney Mehta also states in her petition to

withdraw that she has supplied Appellant with a copy of her Anders brief.

Additionally, she attached a letter directed to Appellant to her petition to

withdraw, in which she informed Appellant of the rights enumerated in

Nischan. Accordingly, counsel has complied with the technical requirements

for withdrawal. We will now independently review the record to determine if

Appellant’s issues are frivolous, and to ascertain if there are any other, non-

frivolous issues he could pursue on appeal.

      Initially, we are constrained to conclude that Appellant’s challenges to

the validity of his guilty plea and his competency to enter the plea are waived,

as he did not raise them before the court at the plea or sentencing hearings,

and he did not file a pre- or post-sentence motion seeking to withdraw his

plea on either of these bases. Additionally, while the PCRA court reinstated

Appellant’s right to appeal, it did not expressly grant him the right to file a




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post-sentence motion, and such a right is not automatic.1 See PCRA Court

Order, 4/6/18, at 1 (“AND NOW, this 6th day of April, 2018, the

Commonwealth agrees to the reinstatement of Appellate Rights. Appellate

Rights are reinstated.”); Commonwealth v. Liston, 977 A.2d 1089, 1094

(Pa. 2009) (holding that a defendant who is granted the right to file a notice

of appeal nunc pro tunc is not automatically granted the right to file post-

sentence motions nunc pro tunc).               In any case, even if we could loosely

interpret the court’s reinstatement of Appellant’s right to appeal as

encompassing the right to file a post-sentence motion, Attorney Mehta failed

to file any such motion on Appellant’s behalf. Thus, Appellant’s challenges to

the validity of his guilty plea and his competency to enter that plea are waived,

as they were not raised before the trial court. See Pa.R.A.P. 302(a) (“Issues

not raised in the lower court are waived and cannot be raised for the first time

on appeal.”); Commonwealth v. Tareila, 895 A.2d 1266, 1270 n.3 (Pa.

Super. 2006) (“In order to preserve an issue related to the guilty plea, an

appellant must either ‘object[] at the sentence colloquy or otherwise rais[e]

the issue at the sentencing hearing or through a post-sentence motion.’”)

(citation omitted).

       Nevertheless, even had Appellant preserved his first two issues for our

review, we would agree with Attorney Mehta that they are frivolous. First,
____________________________________________


1We observe that Appellant’s amended PCRA petition, filed by Attorney Mehta,
did not request the reinstatement of Appellant’s post-sentence motion rights,
but only his right to file an appeal. See Amended Petition, 9/27/17, at 2
(unnumbered).

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nothing in the record suggests that Appellant’s plea was involuntary,

unknowing, or unintelligent. The court’s oral plea colloquy comported with

Pa.R.Crim.P. 590 in all but one regard — the court failed to ask Appellant if he

understood that the court was not bound by the terms of the plea agreement

unless the plea was accepted by the court. However, as Attorney Mehta points

out, the written colloquy completed by Appellant provided him with that

information. See Written Plea Colloquy, 1/8/15, at 1. Accordingly, we would

deem frivolous Appellant’s challenge to the validity of his plea, had he

preserved that claim for our review.

      Likewise, we also would consider frivolous Appellant’s argument that he

was incompetent to enter his guilty plea. “Competence to plead guilty requires

a finding that the defendant comprehends the crime for which he stands

accused, is able to cooperate with his counsel in forming a rational defense,

and has a rational and factual understanding of the proceedings against him.”

Commonwealth v. Willis, 68 A.3d 997, 1002 (Pa. Super. 2013) (citation

omitted). Additionally, “[i]n order to establish incompetence, an appellant has

the burden of proving that he was either unable to understand the nature of

the proceedings against him or to participate in his own defense.” In re R.D.,

44 A.3d 657, 665 (Pa. Super. 2012) (citation omitted).

      Nothing in the record indicates that Appellant did not understand his

decision to plead guilty and the ramifications thereof, or that he was unable

to participate in his own defense. While Appellant stated that he had been, or

was currently being, treated for mental illness, he confirmed that his diagnosis

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and/or treatment did not impact his ability to understand what was happening

at the plea proceeding. See N.T. Plea Hearing, 1/8/15, at 4. Consequently,

we would conclude that Appellant did not prove that he was incompetent to

enter the guilty plea, had he preserved this argument for our review.

     In Appellant’s third and final issue, he challenges the legality of his

sentence, contending that the court’s imposition of the deadly weapon

enhancement (DWE) violates Alleyne v. United States, 570 U.S. 99, 106

(2013) (holding that “facts that increase mandatory minimum sentences must

be submitted to the jury” and found beyond a reasonable doubt). In rejecting

this argument, the trial court reasoned:

           [A]s to the [DWE], the trial court may impose an enhanced
     sentence if it determines that [Appellant] used a deadly weapon
     in a way that threatened or injured another individual during the
     commission of the offense of which the defendant is currently
     convicted. 204 Pa. Code § 303.10(a)(2). “Deadly weapon”
     includes any: (1) firearm as defined in 42 Pa.C.S.[] § 9712; (2)
     dangerous weapon as defined in 18 Pa.C.S. § 913; or (3) device
     or instrumentality capable of producing death or serious bodily
     injury. Id.

            Here, the trial court properly applied the [DWE] because it
     determined that [Appellant’s] use of a knife during the robbery
     was a “device or instrumentality capable of producing death or
     serious bodily injury.” 204 Pa. Code § 303.10(a)(2). As such, the
     trial court’s determination that the [DWE] applied was not an
     abuse of its discretion. Nor was the imposition of the [DWE] in
     violation of Alleyne and its progeny because it did not result in a
     mandatory minimum sentence. See Commonwealth v. Shull,
     148 A.3d 820, 830 n.6 (Pa. Super. [] 2016) (holding that the
     “imposition of the deadly weapon sentencing enhancement does
     not implicate the Supreme Court of the United States’ holdings in
     Alleyne … or Apprendi v. New Jersey, [530 U.S. 466 …
     (2000)]”).



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TCO at 3-4.

      We agree with the trial court’s reasoning and discern no illegality in the

court’s applying the DWE in fashioning Appellant’s sentence.         See also

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1270 n.10 (Pa. Super.

2014), appeal denied 104 A.3d 1 (Pa. 2014) (holding that application of the

DWE does not violate Alleyne or Apprendi because it only requires the court

to raise the standard guideline range and the court retains the discretion to

sentence outside that range).    Accordingly, Appellant’s sentencing issue is

frivolous.

      In sum, for the reasons stated supra, the three issues Appellant seeks

to assert on appeal are either waived and/or frivolous.       Additionally, our

independent review of the record reveals no other, non-frivolous claims that

he could present herein. Therefore, we affirm his judgment of sentence and

grant Attorney Mehta’s petition to withdraw.

      Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/12/19




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