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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                      :
                                            :
MATTHEW PARRIS,                             :
                                            :
                           Appellant        :     No. 506 WDA 2014

            Appeal from the Judgment of Sentence February 25, 2014
               In the Court of Common Pleas of Allegheny County
               Criminal Division No(s).: CP-02-CR-0007789-2012

BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                         FILED MARCH 17, 2015

        Appellant, Matthew Parris, appeals from the judgment of sentence

entered in the Allegheny County Court of Common Pleas following a

negotiated guilty plea to, inter alia, possession with intent to deliver1 cocaine

in an amount exceeding 100 grams, aggravated assault,2 and possession of

an instrument of crime.3 Appellant’s counsel has filed a petition to withdraw

pursuant     to   Anders     v.   California,   386   U.S.     738   (1967),   and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), with this Court.


*
    Former Justice specially assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30).
2
    18 Pa.C.S. § 2702.
3
    18 Pa.C.S. § 907.
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We deny counsel’s petition, vacate the judgment of sentence, and remand

for further proceedings.

      The facts are unnecessary to our disposition. On February 25, 2014,

Appellant entered a negotiated guilty plea in exchange for a sentence of four

to eight years’ imprisonment.     At the plea hearing, Appellant stated he

understood a previously completed written guilty colloquy, was satisfied with

the plea agreement, and his counsel had explained his rights.      N.T. Guilty

Plea Hr’g, 2/25/14, at 3-10. During the trial court’s colloquy, he admitted

he understood, inter alia, the nature of the charges against him, he was

giving up his right to a jury trial, and the maximum potential sentences. Id.

The court imposed the agreed-upon sentence, which the Commonwealth

acknowledged was a mandatory minimum sentence under 18 Pa.C.S. §

7508(a)(3)(iii).4 Appellant did not file a post-sentence motion.

      Appellant timely appealed. The court ordered Appellant to comply with

Pa.R.A.P. 1925(b), and Appellant filed a notice of intent to file an Anders

brief pursuant to Pa.R.A.P. 1925(c)(4).

      On April 17, 2014, Appellant’s counsel filed a petition to withdraw with

this Court. “[T]his Court may not review the merits of the underlying issues

without first passing on the request to withdraw.”       Commonwealth v.

Garang, 9 A.3d 237, 240 (Pa. Super. 2010) (citation omitted).

4
 As noted below, this statute was held unconstitutional by Commonwealth
v. Fennell, 105 A.3d 13 (Pa. Super. 2014).




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         [T]he three requirements that counsel must meet before
         he or she is permitted to withdraw from representation
         [are] as follows:

           First, counsel must petition the court for leave to
           withdraw and state that after making a conscientious
           examination of the record, he has determined that
           the appeal is frivolous; second, he must file a brief
           referring to any issues in the record of arguable
           merit; and third, he must furnish a copy of the brief
           to the defendant and advise him of his right to retain
           new counsel or to himself raise any additional points
           he deems worthy of the Superior Court’s attention.

Id. (citations omitted).

         [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.

         [I]n Pennsylvania, when counsel meets his or her
         obligations, “it then becomes the responsibility of the
         reviewing court to make a full examination of the
         proceedings and make an independent judgment to decide
         whether the appeal is in fact wholly frivolous.”

Id. at 355 n.5 (citation omitted).

      Instantly, in counsel’s Anders brief, he stated that he made a

conscientious examination of the record.     He summarized the factual and

procedural history with citations to the record. He referred to every issue

and everything in the record that he believes arguably supports the appeal.


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He articulated the facts from the record, case law, and statutes that led him

to conclude that the appeal is frivolous. He furnished a copy of the brief to

Appellant. He also advised Appellant of his right to retain new counsel or to

raise, pro se, any additional points that he deems worthy of the Court’s

consideration.    We find that Appellant’s counsel has complied with all the

requirements set forth above.       See id. at 361; Garang, 9 A.3d at 240.

Therefore, we now review the underlying issues on appeal. See Santiago,

978 A.2d at 355 n.5.

        The Anders brief raises the following issues:

           Appellant has no preserved claims of error, given that he
           pled guilty, received the 4-to-8 year prison sentence that
           his attorney negotiated, and he did not reserve any
           appellate challenge to the denial of his pre-trial
           suppression motion.

           Appellant also lacks a viable claim of error that survived a
           negotiated guilty plea, given that (A) his guilty plea
           colloquy established that the trial court had jurisdiction;
           (B) his guilty plea colloquy presented factual averments
           that were sufficient to permit a conviction of him for the
           [above crimes]; and (C) the sentence imposed upon him
           was a legal sentence.

Anders Brief at 8.5

        We summarize the issues identified by Appellant’s counsel.        Counsel

contends Appellant did not file a post-sentence motion seeking leave to

withdraw his plea. He acknowledges Appellant did not challenge any pretrial


5
    Appellant has not filed a pro se response.




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suppression rulings and the court had subject matter jurisdiction.       Counsel

maintains that the guilty plea was valid and the sentence imposed was legal.

We hold Appellant is due limited relief.

      With respect to Appellant’s challenge to the trial court’s jurisdiction, we

state the following.   In Commonwealth v. Bethea, 828 A.2d 1066 (Pa.

2003), our Supreme Court discussed subject matter jurisdiction:

            Subject matter jurisdiction relates to the competency of
         a court to hear and decide the type of controversy
         presented. Jurisdiction is a matter of substantive law. . . .
         Controversies arising out of violations of the Crimes Code
         are entrusted to the original jurisdiction of the courts of
         common pleas for resolution. Every jurist within that tier
         of the unified judicial system is competent to hear and
         decide a matter arising out of the Crimes Code.

                                  *    *    *

            Although each court of common pleas within this
         Commonwealth possesses the same subject matter
         jurisdiction to resolve cases arising under the Pennsylvania
         Crimes Code, that jurisdiction should only be exercised
         beyond the territorial boundaries of the judicial district in
         which it sits in the most limited of circumstances.

Bethea, 828 A.2d at 1074-75 (citations omitted).          Instantly, Appellant’s

offenses occurred in Allegheny County, and thus the Allegheny County Court

of Common Pleas properly exercised jurisdiction. See id.

      We acknowledge that “when a defendant enters a plea of guilty, he

waives his right to challenge on appeal all nonjurisdictional defects except

the legality of his sentence and the validity of his plea.” Commonwealth v.

Myers, 392 A.2d 685, 687 (Pa. 1978); accord Commonwealth v.



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Pantalion, 957 A.2d 1267, 1271 (Pa. Super. 2008). Additionally, it is well-

settled that generally, failure to file a motion to withdraw a guilty plea

results in waiver of the issue on appeal. Commonwealth v. Cavanaugh,

456 A.2d 145, 147 (Pa. 1983).

     This Court set forth the applicable law regarding guilty plea colloquies:

           Our law is clear that, to be valid, a guilty plea must be
        knowingly, voluntarily and intelligently entered. There is
        no absolute right to withdraw a guilty plea, and the
        decision as to whether to allow a defendant to do so is a
        matter within the sound discretion of the trial court. To
        withdraw a plea after sentencing, a defendant must make
        a showing of prejudice amounting to manifest injustice. A
        plea rises to the level of manifest injustice when it was
        entered into involuntarily, unknowingly, or unintelligently.
        A defendant’s disappointment in the sentence imposed
        does not constitute manifest injustice.

           In order to ensure a voluntary, knowing, and intelligent
        plea, trial courts are required to ask the following
        questions in the guilty plea colloquy:

           1) Does the defendant understand the nature of the
           charges to which he or she is pleading guilty or nolo
           contendere?

           2) Is there a factual basis for the plea?

           3) Does the defendant understand that he or she has
           the right to a trial by jury?

           4) Does the defendant understand that he or she is
           presumed innocent until found guilty?

           5) Is the defendant aware of the permissible ranges
           of sentences and/or fines for the offenses charged?

           6) Is the defendant aware that the judge is not
           bound by the terms of any plea agreement tendered
           unless the judge accepts such agreement?


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                The guilty plea colloquy must affirmatively demonstrate
            that the defendant understood what the plea connoted and
            its consequences. Once a defendant has entered a plea of
            guilty, it is presumed that he was aware of what he was
            doing, and the burden of proving involuntariness is upon
            him. . . . Furthermore, nothing in the rule precludes the
            supplementation of the oral colloquy by a written colloquy
            that is read, completed, and signed by the defendant and
            made a part of the plea proceedings.

Commonwealth v. Bedell, 954 A.2d 1209, 1212-13 (Pa. Super. 2008)

(punctuation and citations omitted).

         Instantly, Appellant failed to move to withdraw his guilty plea with the

trial court or otherwise challenge the pretrial suppression rulings and thus he

has waived them on appeal. See Cavanaugh, 456 A.2d at 147; see also

Pa.R.A.P. 302. Regardless, we have carefully reviewed the record, including

the transcript of the guilty plea hearing, and discern no error with respect to

entry and acceptance of Appellant’s guilty plea.      See Bedell, 954 A.2d at

1212-13.

         We respectfully disagree with counsel that Appellant’s sentence is

legal.

         Subsection 7508(a)(2)(ii) follows:

            § 7508. Drug trafficking sentencing and penalties

            (a) General rule.—Notwithstanding any other provisions
            of this or any other act to the contrary, the following
            provisions shall apply:

                                    *    *    *




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            (3) A person who is convicted of violating section
            13(a)(14), (30) or (37) of The Controlled Substance,
            Drug, Device and Cosmetic Act where the controlled
            substance is coca leaves or is any salt, compound,
            derivative or preparation of coca leaves or is any salt,
            compound, derivative or preparation which is chemically
            equivalent or identical with any of these substances or
            is any mixture containing any of these substances
            except decocainized coca leaves or extracts of coca
            leaves which (extracts) do not contain cocaine or
            ecgonine shall, upon conviction, be sentenced to a
            mandatory minimum term of imprisonment and a fine
            as set forth in this subsection:
                                   *    *    *

                (iii) when the aggregate weight of the compound or
                mixture of the substance involved is at least 100
                grams; four years in prison and a fine of $25,000 or
                such larger amount as is sufficient to exhaust the
                assets utilized in and the proceeds from the illegal
                activity; however, if at the time of sentencing the
                defendant has been convicted of another drug
                trafficking offense: seven years in prison and
                $50,000 or such larger amount as is sufficient to
                exhaust the assets utilized in and the proceeds from
                the illegal activity.

18 Pa.C.S. § 7508(a)(3)(iii).

      Recently, in a series of cases, this Court has held that mandatory

minimum sentences imposed under certain subsections of 18 Pa.C.S. § 7508

were illegal.   See Commonwealth v. Cardwell, 105 A.3d 748, 755 (Pa.

Super. 2014) (concluding trial court erred by imposing mandatory minimum

sentence under subsection 7508(a)(4)(i)); Fennell, 105 A.3d at 20

(vacating   mandatory     minimum     sentence   imposed    per   subsection

7508(a)(7)(i)); Commonwealth v. Thompson, 93 A.3d 478, 493 (Pa.

Super. 2014) (holding mandatory minimum sentence under subsection


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7508(a)(2)(ii) was illegal); see also Commonwealth v. Valentine, 101

A.3d 801, 812 (Pa. Super. 2014) (declaring mandatory minimum sentence

set forth in 42 Pa.C.S. §§ 9712 and 9713 were unconstitutional);

Commonwealth v. Newman, 99 A.3d 86, 103 (Pa. Super. 2014) (en banc)

(holding unconstitutional mandatory minimum sentence imposed under 42

Pa.C.S. § 9712.1).

     The Thompson Court opined as follows:

        [A]pplication of the mandatory minimum sentence in this
        case constituted an illegal sentence in violation of Alleyne
        v. United States, ___ U.S. ___, 133 S. Ct. 2151, 186 L.
        Ed. 2d 314 (2013).

        According to the Alleyne Court, a fact that increases the
        sentencing floor is an element of the crime. Thus, it ruled
        that facts that mandatorily increase the range of penalties
        for a defendant must be submitted to a fact-finder and
        proven beyond a reasonable doubt. The Alleyne decision,
        therefore,    renders   those     Pennsylvania    mandatory
        minimum sentencing statutes that do not pertain to prior
        convictions constitutionally infirm insofar as they permit a
        judge to automatically increase a defendant’s sentence
        based on a preponderance of the evidence standard.

        . . . Alleyne necessarily implicated Pennsylvania’s legality
        of sentencing construct since it held that it is improper to
        sentence a person to a mandatory minimum sentence
        absent a jury’s finding of facts that support the mandatory
        sentence. Application of a mandatory minimum sentence
        gives rise to illegal sentence concerns, even where the
        sentence is within the statutory limits.

Thompson, 93 A.3d at 493-94 (citations omitted). The Thompson Court

thus vacated the defendant’s sentence under subsection 7508(a)(2)(ii) as

illegal and remanded for resentencing.   Id. at 494.    Instantly, given the



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Thompson Court opined on a subsection structurally identical to the one

used to sentence Appellant, we similarly vacate his sentence and remand for

resentencing. Cf. id. Our independent review of the record reveals no other

issue of arguable merit. See Santiago, 978 A.2d at 355 n.5. Accordingly,

we conclude that the appeal has merit and deny counsel’s petition for leave

to withdraw.

     Counsel’s petition for leave to withdraw denied. Judgment of sentence

vacated. Case remanded for resentencing.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/17/2015




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