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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                    v.                  :
                                        :
AQUI M. McKEITHEN,                      :          No. 857 WDA 2013
                                        :
                         Appellant      :


           Appeal from the Judgment of Sentence, August 16, 2012,
              in the Court of Common Pleas of Allegheny County
               Criminal Division at No. CP-02-CR-0007132-2010


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND ALLEN, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED SEPTEMBER 2, 2014

        Appellant, Aqui M. McKeithen, appeals nunc pro tunc from the

judgment of sentence of two to four years of imprisonment plus five years of

probation following the revocation of his probation for various drug-related

convictions. Appellant’s counsel has filed an Anders1 brief together with a

petition to withdraw as counsel. We affirm the judgment of sentence and

grant counsel’s petition to withdraw.

        A review of the record reveals the following facts and procedural

history.    After three undercover drug buys in March and April of 2010,

appellant was arrested and charged with the following:         one count of

criminal use of communication facility; four counts of possession with intent



1
    Anders v. California, 386 U.S. 738 (1967).
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to deliver a controlled substance; two counts of possession of a controlled

substance; one count of possession with intent to deliver a non-controlled

substance; one count of endangering the welfare of children; one count of

recklessly endangering another person; and one count of false identification

to law enforcement.

      On July 7, 2011, appellant pled guilty to all counts pursuant to a

negotiated plea agreement. The Honorable Donald E. Machen imposed the

following sentence: a period of incarceration of not less than 11½ months

nor more than 23 months with permission for alternative housing and

three years of concurrent probation at count two, and no further penalty at

the remaining counts. Appellant was permitted 30 days to set up alternative

housing. Appellant, however, failed to appear at the scheduled court date to

begin serving his sentence.

      Appellant was subsequently arrested on new charges of possession of

a controlled substance, possession of marijuana, possession of drug

paraphernalia, driving while operating privilege suspended, and various

traffic offenses.   On July 17, 2012, appellant pled guilty before the

Honorable Thomas E. Flaherty to the charge of possession of a controlled

substance and driving while operating privilege suspended.   He received a

sentence of nine months’ probation.

      On August 16, 2012, appellant appeared before Judge Machen for

sentencing on his probation violation.      Appellant was represented by



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privately retained counsel, and was sentenced to a period of incarceration of

not less than two years nor more than four years, credit for time served, and

five years’ probation to be served consecutive to the period of confinement.

        Trial counsel did not file a post-sentence motion or a notice of appeal.

On November 2, 2012, appellant filed a timely pro se Post Conviction Relief

Act2 (“PCRA”) petition alleging that his VOP counsel was ineffective for failing

to file either post-sentence motions and/or a direct appeal on his behalf. On

November 9, 2012, Judge Machen appointed Christy P. Foreman, Esq., to

represent appellant. Attorney Foreman filed an amended PCRA petition, and

on April 17, 2013, Judge Machen reinstated appellant’s appellate rights

nunc pro tunc.

        On May 17, 2013, a timely notice of appeal was filed and counsel was

ordered to file a concise statement of errors on appeal.        Counsel filed a

timely Rule 1925(b) statement raising two issues: appellant’s sentence was

excessive and trial counsel was ineffective for failing to inform the court of

mitigating circumstances at appellant’s sentencing hearing. (Docket #26.)

The trial court filed its Rule 1925(a) opinion on August 12, 2013.

        When counsel files a petition to withdraw and accompanying Anders

brief, we must first examine the request to withdraw before addressing any

of the substantive issues raised on appeal. Commonwealth v. Goodwin,

928 A.2d 287, 290 (Pa.Super. 2007).         Instantly, our review of the record


2
    42 Pa.C.S.A. §§ 9541-9546.

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reveals that counsel has substantially complied with the requirements for

withdrawal as outlined in Anders and its progeny. Specifically, counsel filed

a petition for leave to withdraw in which she states her belief that the appeal

is    frivolous,   filed   an   Anders   brief   pursuant   to   the   dictates   of

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009),3 furnished a

copy of the Anders brief to appellant, and advised appellant of his right to

retain new counsel or proceed pro se. Commonwealth v. Ferguson, 761

A.2d 613, 616 (Pa.Super. 2000). Moreover, our review of the record reveals

no additional correspondence from appellant. Accordingly, we will proceed

to examine the record to determine whether the appeal is wholly frivolous.

        Appellant’s first claim raises a challenge to the discretionary aspects of

his sentence. “Challenges to the discretionary aspects of sentencing do not

entitle a petitioner to review as of right.”      Commonwealth v. Allen, 24

A.3d 1058, 1064 (Pa.Super. 2011).         Before this court can address such a




3
 In Santiago, our supreme court modified the procedures for filing an
Anders brief, stating that 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.

Id.

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discretionary challenge, an appellant must comply with the following

requirements:

            An appellant challenging the discretionary aspects of
            his sentence must invoke this Court’s jurisdiction by
            satisfying a four-part test: (1) whether appellant
            has filed a timely notice of appeal, see Pa.R.A.P. 902
            and 903; (2) whether the issue was properly
            preserved at sentencing or in a motion to reconsider
            and modify sentence, see Pa.R.Crim.P. [720];
            (3) whether appellant's brief has a fatal defect,
            Pa.R.A.P. 2119(f); and (4) whether there is a
            substantial question that the sentence appealed from
            is not appropriate under the Sentencing Code,
            42 Pa.C.S.A. § 9781(b).

Id. (internal citation omitted).

      Instantly, appellant did not preserve his allegation by raising it at

sentencing or in a post-sentence motion. Accordingly, the issue is waived.4

See Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa.Super. 2007),

appeal denied, 936 A.2d 40 (Pa. 2007) (“an appellant can seek to appeal

discretionary sentencing issues only after preserving them during the

sentencing hearing or in post-sentence motions”).




4
  We note that even if appellant’s sentencing claim had been preserved, it
would fail to raise a substantial question. Appellant was facing a maximum
sentence of 15 years for three separate deliveries of heroin to an undercover
police officer. (Notes of testimony, 8/16/12 at 15.) During one of the
deliveries, his minor child was in his car, and during another delivery
appellant rammed his vehicle into a police car in an attempt to flee. (Id. at
14.)    Despite the statutory maximum available, Judge Machen only
sentenced appellant to 2 to 4 years’ incarceration followed by 5 years of
probation. (Id. at 21.) Appellant did not receive an excessive sentence.


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      As to appellant’s ineffective assistance of counsel claim, that must

await collateral review.    Pursuant to Commonwealth v. Grant, 818 A.2d

726 (Pa. 2002), ineffective assistance of counsel claims are to be raised in a

timely PCRA petition.      More recently, in Commonwealth v. Holmes, 79

A.3d 562, 566 (Pa. 2014), our supreme court reaffirmed the general

principle that ineffective assistance of counsel claims must be deferred to

collateral review.5

      Therefore, we affirm the judgment of sentence. Appellant may raise

any ineffective assistance of counsel claims he deems appropriate in a timely

PCRA petition.

      Judgment of sentence affirmed.       Petition to withdraw as counsel

granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/2/2014




5
 In Holmes, our supreme court articulated that, absent either good cause or
exceptional circumstances and a waiver of post-conviction review, claims of
ineffective assistance of counsel are deferred for review pursuant to the
PCRA. Id. at 563.

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