J-S73005-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

RASHAUN D. GARNER,

                         Appellant                  No. 222 MDA 2014


           Appeal from the Judgment of Sentence June 25, 2008
           In the Court of Common Pleas of Susquehanna County
            Criminal Division at No(s): CP-58-CR-0000418-2006


BEFORE: BOWES, WECHT, and MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                       FILED DECEMBER 04, 2014

      Rashaun D. Garner appeals nunc pro tunc from the June 25, 2008

judgment of sentence of twenty to forty years imprisonment that was

imposed in accordance with Appellant’s negotiated guilty plea to third-

degree murder. Appellate counsel has filed a petition seeking to withdraw

his representation and a brief pursuant to Anders v. California, 386 U.S.

738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009),

which govern a withdrawal from representation on direct appeal. We grant

the petition to withdraw and affirm.

      On November 24, 2006, Appellant, who was then a juvenile, was

charged with homicide, two counts of aggravated assault, and six counts of

terroristic threats in connection with the shooting death of Stephen Smith,

Jr. Appellant asked that this matter be decertified to the juvenile court and
J-S73005-14



received funds for psychological testing and to hire an expert witness.

Decertification was denied. After executing a written guilty plea agreement

and undergoing an extensive oral colloquy, Appellant entered a negotiated

guilty plea on June 9, 2008, to third-degree murder in exchange for a

sentence of twenty to forty years imprisonment and withdrawal of the

remaining charges. N.T. Plea, 6/9/08, at 2.1

       Appellant did not file a direct appeal, but he filed a timely PCRA

petition on June 12, 2009.         Counsel was appointed and filed an amended

petition. The court conducted a PCRA hearing and denied relief. In a nunc

pro tunc appeal from the denial of PCRA relief, we rejected Appellant’s

claims that plea counsel rendered ineffective assistance by coercing him to

enter a plea arrangement and by failing to investigate a claim of self-

defense.     Commonwealth v. Garner, 87 A.3d 889 (Pa.Super. 2013)

(unpublished memorandum).             However, we noted the following.   In his

counseled PCRA petition, Appellant averred that counsel failed to file a

requested direct appeal from the judgment of sentence.           At the PCRA

hearing, Appellant likewise testified that he asked his plea counsel to file an

appeal but none was filed. We accordingly determined that Appellant was




____________________________________________


1
   Appellant admitted that he shot the victim in the abdomen on SR 92 in
Lenox Township and left him on the roadway. He was thereafter sentenced
in accordance with the plea agreement.



                                           -2-
J-S73005-14



entitled to reinstatement of his direct appeal rights and remanded.

Appellant’s direct appeal rights were reinstated, and this appeal followed.

      Before we address the questions raised on appeal, we first must

resolve appellate counsel’s request to withdraw.          Commonwealth v.

Cartrette, 83 A.3d 1030 (Pa.Super. 2013) (en banc). There are procedural

and briefing requirements imposed upon an attorney who seeks to withdraw

on appeal. The procedural mandates are that 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. (citation omitted).

      In this case, counsel has satisfied those directives.    In a petition to

withdraw, counsel averred that he conscientiously reviewed Appellant's

entire record and that, following that review, the instant appeal is wholly

frivolous.   Attached to the petition to withdraw is a copy of a letter that

counsel sent to Appellant.      Counsel forwarded to Appellant a copy of the

Anders brief and petition to withdraw.         Additionally, counsel informed

Appellant that he had the right to retain a different attorney or to proceed by

himself as a pro se litigant.    Appellant filed an extension of time to file a

response to the petition to withdraw and to file a pro se brief.         Those




                                      -3-
J-S73005-14



extensions were granted, but Appellant has filed no brief within the time

frame permitted by the orders granting extensions.

      We now examine whether counsel’s brief comports with the Supreme

Court’s dictates in Santiago, supra, which provides that

      in 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.

Cartrette, supra at 1032 (quoting Santiago, supra at 361).

      Counsel’s brief is compliant with Santiago.     It sets forth the factual

and procedural history of this case and establishes why Appellant’s issue

lacks merit.   Applicable legal authority is provided.   We now examine the

merits of the issue raised, and we then will independently review the record

in order to determine if counsel’s assessment about the frivolity of the

present appeal is correct. Cartrette, supra. The issue raised in the brief

is: “I. Did the lower court err by accepting the guilty plea entered by

appellant as voluntarily and knowingly given?” Appellant’s brief at 4.

      We observe the following.      “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



                                     -4-
J-S73005-14


sentencing. Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i).     Failure to employ either

measure results in waiver.” Commonwealth v. Lincoln, 72 A.3d 606, 610-

11 (Pa.Super. 2013). Herein, our review of the record establishes that no

objection was raised at the colloquy and that no post-sentence motion was

filed. Furthermore, the trial court delineated that Appellant had the right to

file a post-sentence challenge to his plea. N.T. Sentencing, 6/25/08, at 27.

Appellant failed to do so. Hence, any objection to the validity of the plea

cannot be raised in this appeal.    Id.   Likewise, since Appellant entered a

negotiated guilty plea to a sentence that did not exceed the lawful

maximum, he can raise no challenge to the propriety of the sentence

imposed.   Commonwealth v. Reichle, 589 A.2d 1140 (Pa.Super. 1991).

Hence, all issues are waived for purposes of direct appeal.

      We do note that Appellant did not aver that he asked counsel to file a

post-sentence motion, and Appellant is not automatically entitled to

reinstatement of that privilege merely because he asked for a direct appeal.

Commonwealth v. Liston, 977 A.2d 1089, 1100 (Pa. 2009).                   While

Appellant may contend that he received ineffective assistance in that counsel

did not file such a motion, claims of ineffective assistance of counsel will not

be entertained on direct appeal and must be deferred to collateral review

absent certain circumstances that did not occur herein. Commonwealth v.

Holmes, 79 A.3d 562 (Pa. 2013); see generally Commonwealth v.

Grant, 813 A.2d 726, 738 (Pa. 2002).


                                     -5-
J-S73005-14


      There are no issues that can be raised in this appeal because none was

preserved.    Hence, our independent review confirms that this appeal is

wholly frivolous.

      The petition of Brianna M. Strope, Esquire, to withdraw as counsel is

granted. Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/4/2014




                                   -6-
