J-S58035-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

ANDRE D. FULLER

                            Appellant                No. 1999 MDA 2014


             Appeal from the Judgment of Sentence July 28, 2014
               In the Court of Common Pleas of Luzerne County
             Criminal Division at No(s): CP-40-CR-0003235-2013


BEFORE: GANTMAN, P.J., OLSON, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                    FILED NOVEMBER 06, 2015

        Appellant, Andre D. Fuller, appeals from the judgment of sentence

entered in the Luzerne County Court of Common Pleas, following his guilty

plea to criminal attempt—criminal homicide.1 We affirm and grant counsel’s

petition to withdraw.

        The relevant facts and procedural history of this case are as follows.

On August 3, 2013, at approximately 10:50 p.m., Officer Dudick was on

patrol in Wilkes-Barre when he heard multiple gunshots.        Officer Dudick

reported the shots and traveled to the location where an off-duty police

officer reported a black male in a white long sleeve t-shirt running from the

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1
    18 Pa.C.S.A. § 2501(a) (901(a) related).


_____________________________

*Retired Senior Judge assigned to the Superior Court.
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area.    Upon arriving at the shooting scene, Officer Dudick observed the

victim, William Uggiano, lying on the street with gunshot wounds to his

head, hand, leg, and buttocks. The victim was conscious and told the police

he did not know the name of the shooter but had seen him around town.

The victim was transported to the hospital, and the police recovered several

.45 caliber shell casings where the victim had been found. After receiving

information from the victim’s mother regarding the shooter’s identity, the

police showed the victim a photo array.          The victim positively identified

Appellant as the shooter.

        Appellant entered a negotiated guilty plea on July 28, 2014, to criminal

attempt—criminal homicide.            That same day, the court imposed the

negotiated sentence of six (6) to twelve (12) years’ imprisonment.         While

still represented by counsel, Appellant filed a notice of appeal pro se on

August 25, 2014, under the Prisoner Mailbox Rule. The court subsequently

conducted a Grazier2 hearing on January 6, 2015, after which the court

appointed new counsel and granted an extension of time to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

On January 30, 2015, counsel filed a notice of intent to file an Anders brief.

Thereafter, counsel filed a petition for leave to withdraw in this Court on May

21, 2015.

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2
    Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998).



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      As      a    preliminarily   matter,   counsel   seeks   to   withdraw   her

representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.

1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Santiago, 602 Pa.

159, 978 A.2d 349 (2009).          Anders and Santiago require counsel to: 1)

petition the Court for leave to withdraw, certifying that after a thorough

review of the record, counsel has concluded the issues to be raised are

wholly frivolous; 2) file a brief referring to anything in the record that might

arguably support the appeal; and 3) furnish a copy of the brief to the

appellant and advise him of his right to obtain new counsel or file a pro se

brief to raise any additional points the appellant deems worthy of review.

Santiago, supra at 173-79, 978 A.2d at 358-61.            Substantial compliance

with these requirements is sufficient.         Commonwealth v. Wrecks, 934

A.2d 1287, 1290 (Pa.Super. 2007). “After establishing that the antecedent

requirements have been met, this Court must then make an independent

evaluation of the record to determine whether the appeal is, in fact, wholly

frivolous.”       Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super.

2006) (quoting Commonwealth v. Townsend, 693 A.2d 980, 982

(Pa.Super. 1997)).

      In Santiago, supra, our Supreme Court addressed the briefing

requirements where court-appointed appellate counsel seeks to withdraw

representation:




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          Neither Anders nor McClendon[3] requires that counsel’s
          brief provide an argument of any sort, let alone the type of
          argument that counsel develops in a merits brief. To
          repeat, what the brief must provide under Anders are
          references to anything in the record that might arguably
          support the appeal.

                                       *       *   *

          Under Anders, the right to counsel is vindicated by
          counsel’s examination and assessment of the record and
          counsel’s references to anything in the record that
          arguably supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

          [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.

Id. at 178-79, 978 A.2d at 361.

       Instantly, counsel filed a petition to withdraw.      The petition states

counsel conducted a conscientious review of the record and determined the

appeal is wholly frivolous.       Counsel also supplied Appellant with a copy of

the brief and a letter explaining Appellant’s right to retain new counsel or to

proceed pro se to raise any additional issues Appellant deems worthy of this

Court’s attention.      (See Letter to Appellant, dated 5/21/15, attached to
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3
    Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).



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Petition for Leave to Withdraw as Counsel.)     In the Anders brief, counsel

provides a summary of the facts and procedural history of the case.

Counsel’s argument refers to relevant law that might arguably support

Appellant’s issues.     Counsel further states the reasons for her conclusion

that the appeal is wholly frivolous.     Therefore, counsel has substantially

complied with the requirements of Anders and Santiago.

      Counsel raises the following issues in the Anders brief:

         WHETHER THE TRIAL COURT LACKED                  STATUTORY
         AUTHORITY FOR THE SENTENCE IMPOSED?

         WHETHER THE SENTENCE OF A MINIMUM OF SIX YEARS
         TO A MAXIMUM OF TWELVE YEARS[’] INCARCERATION IS
         HARSH AND EXCESSIVE?

(Anders Brief at 1-2). Appellant filed a pro se supplemental brief and raises

the following issues:

         DID THE TRIAL [COURT] HAVE AUTHORITY TO ACCEPT
         THE PLEA AGREEMENT?

         WAS THE JUDGMENT OF SENTENCE LAWFUL?

         IF A[N] ORALLY PRONOUNCED SENTENCE IS NOT
         INCORPORATED WITHIN THE JUDGEMENT OF SENTENCE
         ORDER IS THAT SENTENCE ILLEGAL?

         IF THE JUDGEMENT OF SENTENCE ORDER POSSES[SES]
         NO STATUTORY AUTHORIZATION IS THAT DOCUMENT
         INVALID?

         WAS THERE A PRELIMINARY HEARING OF RECORD?

         WAS THERE A LAWFUL ARREST?

(Appellant’s Supplemental Brief at 1).


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       On appeal, Appellant’s pro se supplemental brief and counsel’s Anders

brief essentially raise the same arguments. Appellant and counsel allege the

sentence of six to twelve years’ imprisonment is excessive and illegal.4

Appellant and counsel contend the court lacked statutory authority to accept

Appellant’s guilty plea and impose his sentence.            Appellant concludes this

Court should vacate and remand for resentencing.                  Appellant’s claims

challenge,    in   part,   the    discretionary   aspects   of   sentencing.    See

Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super. 2002) (stating claim

that sentence is manifestly excessive challenges discretionary aspects of

sentencing).

       “[W]here a defendant pleads guilty pursuant to a plea agreement

specifying particular penalties, the defendant may not seek a discretionary

appeal relating to those agreed-upon penalties.”                 Commonwealth v.

Brown, 982 A.2d 1017, 1019 (Pa.Super. 2009) (citing Commonwealth v.

Dalberto, 648 A.2d 16, 20 (1994)). “Permitting a defendant to petition for

such an appeal would undermine the integrity of the plea negotiation

process and could ultimately deprive the Commonwealth of sentencing

particulars for which it bargained.” Id. (citing Dalberto, supra at 18).

       Moreover, “[a] person commits an attempt when, with intent to
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4
   As a general rule, the “entry of a guilty plea constitutes a waiver of all
defects and defenses except lack of jurisdiction, invalidity of the plea, and
illegality of the sentence.” See Commonwealth v. Main, 6 A.3d 1026,
1028 (Pa.Super. 2010).



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commit a specific crime, he does any act which constitutes a substantial step

toward the commission of that crime.” 18 Pa.C.S.A. § 901(a). Section 2501

of the Pennsylvania Consolidated Statutes further provides:

        § 2501. Criminal homicide

        (a) Offense defined.—A person is guilty of criminal
        homicide if he intentionally, knowingly, recklessly or
        negligently causes the death of another human being.

        (b) Classification.—Criminal homicide shall be classified
        as murder, voluntary manslaughter, or involuntary
        manslaughter.

18 Pa.C.S.A. § 2501(a)-(b). Criminal attempt is a crime “of the same grade

and degree as the most serious offense which is attempted….” 18 Pa.C.S.A.

§ 905(a). Third-degree murder and voluntary manslaughter are graded as

first-degree felonies. See 18 Pa.C.S.A. §§ 2502(c), 2503(c). An individual

convicted of a first-degree felony may be sentenced to “a term which shall

be fixed by the court at not more than 20 years.” 18 Pa.C.S.A. § 1103(1).

     Here, Appellant has no grounds to challenge his sentence. Appellant’s

plea agreement included a negotiated sentence of six to twelve years’

imprisonment in exchange for the Commonwealth dropping the numerous

remaining charges.     Therefore, Appellant’s negotiated plea agreement

precludes him from challenging the discretionary aspects of his sentence.

See Brown, supra. Furthermore, criminal attempt—criminal homicide is a

first-degree felony and carries a maximum penalty of twenty years’

imprisonment. See 18 Pa.C.S.A. §§ 905(a), 2502(c), 2503(c), and 1103(1).


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The court sentenced Appellant to six to twelve years’ imprisonment, which is

below the statutory maximum. Thus, Appellant’s sentence was not illegal,

and the court had authority to impose the sentence. Accordingly, we affirm

the judgment of sentence and grant counsel’s petition to withdraw.

     Judgment of sentence affirmed; counsel’s petition to withdraw is

granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/6/2015




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