J-S95009-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

PETE WALKER

                            Appellant                 No. 2947 EDA 2015


             Appeal from the Judgment of Sentence June 17, 2015
              In the Court of Common Pleas of Delaware County
               Criminal Division at No: CP-23-CR-0002696-2001


BEFORE: STABILE, MOULTON, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                            FILED MARCH 30, 2017

        Appellant, Pete Walker, appeals from the June 17, 2015 judgment of

sentence entered in the Court of Common Pleas of Delaware County (“trial

court”) following a revocation of the Appellant’s parole after a Gagnon II

hearing. Counsel has filed a brief in accordance with Anders v. California,

368 U.S. 738 (1969), and an application for leave to withdraw.     Following

review, we grant counsel’s application for leave to withdraw and quash

Appellant’s appeal.

        Appellant pled guilty to robbery of a motor vehicle and recklessly

endangering another person (“REAP”) on July 16, 2003.1         Appellant was



____________________________________________


1
    18 Pa.C.S.A. § 3702 and § 2705 respectively.
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sentenced to an aggregate term of 11.5-23 months of incarceration followed

by three years’ probation with no credit for time previously served.

      Following a Gagnon II hearing on September 14, 2010, Appellant’s

probation was revoked and he was resentenced to 6-12 months of

incarceration followed by two years’ probation.        After another alleged

violation, a Gagnon II hearing was held on June 17, 2015, after which the

trial court revoked Appellant’s probation and imposed a sentence of 1-2

years’ incarceration.

      On August 20, 2015, Appellant filed a “Petition for Writ of Habeas

Corpus and/or a Petition for Time Credit.”     The trial court dismissed this

petition on August 25, 2015. Subsequently, Appellant field a pro se petition

to Appoint counsel which was denied on September 10, 2015.             Appellant

filed a pro se notice of appeal on September 21, 2015; however, this notice

did not indicate what order was being appealed.

      Appellant’s counsel filed, in this Court, an application to withdraw as

counsel and an Anders brief, wherein counsel raises one issue for our

review.

      I.    Whether the Superior Court of Pennsylvania has jurisdiction to
            consider Appellant’s untimely appeal where Appellant alleges
            ineffective assistance of counsel as a result of prior counsel
            failing to file a timely notice of appeal.

Anders Brief at 4. Appellate counsel filed his Anders brief on October 17,

2016, and an application to withdraw as counsel on October 18, 2016. This

Court issued an order on November 14, 2016, directing counsel to correct


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his letter advising Appellant of his right to proceed pro se or with privately

retained counsel. Counsel complied on October 18, 2016. Appellant did not

file a reply to the Anders Brief.

      Before this Court can review the merits of the underlying issues, we

must first address counsel’s petition to withdraw.       Commonwealth v.

Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc).           In order for

court-appointed counsel to withdraw, 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) file a brief
      referring to anything that arguably might support the appeal but
      which does not resemble a “no-merit” letter or amicus curiae
      brief; and (3) furnish a copy of the brief to the defendant and
      advise the defendant of his or her right to retain new counsel or
      raise any additional points that he or she deems worthy of the
      court’s attention.

Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super. 2009) (quoting

Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005)).

      Upon review, we conclude counsel has satisfied the procedural

requirements set forth in Anders.        In the brief, counsel explains his

conclusion that the issue sought to be raised by Appellant is wholly frivolous.

On October 14, 2016, counsel sent a copy of the Anders brief to Appellant.

Following this Court’s November 14, 2016 order, counsel sent an amended

letter advising Appellant of his right to retain new counsel or act on his own

behalf.




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       Next, this Court must first address whether counsel’s Anders brief

satisfies the following substantive requirements:

       (1)    provide a summary of the procedural history and facts,
              with citations to the record;
       (2)    refer to anything in the record 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.

       In the Anders brief, counsel has included a statement of the case that

includes a procedural history of the case. Anders Brief at 5-6. Counsel has

complied with the first requirement.

       The second required element of an Anders brief is reference to

anything in the record that counsel believes arguably supports the appeal.

See Santiago, 978 A.2d at 361. Here, counsel raises one issue: whether

Appellant can raise the issue of trial counsel ineffectiveness for failing to file

a timely notice of appeal on direct appeal.      Anders Brief at 6.     Counsel,

therefore, has satisfied the second Anders requirement.

       The third element of Anders requires counsel to state his conclusion

that the appeal is frivolous, which counsel complied with in his brief.2 Id. at

____________________________________________


2
  Counsel complied with this requirement; however, compliance was by the
slimmest of margins.



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7. The final element of Anders requires counsel to provide his reasons for

concluding that the appeal is frivolous.       Santiago, 978 A.2d at 361.

Counsel complied with this requirement and satisfied the final prong of the

Anders test. Anders Brief at 6-7.

      We find counsel has satisfied the requirements for a petition to

withdraw. He complied with the briefing requirements, as explained above.

Appellant was advised of his right to retain substitute counsel or to proceed

pro se to bring any attention points to this Court's attention. Thus, we must

next address the merits.

      Appellant’s sole claim is that trial counsel was ineffective for failing to

file a timely notice of appeal. Anders Brief at 4. It is undisputed that trial

counsel did not file a timely notice of appeal. The “general rule of deferral to

PCRA review remains the pertinent law on the appropriate timing of review

of claims of ineffective assistance of counsel.” Commonwealth v. Holmes,

79 A.3d 562, 563 (Pa. 2013). In Holmes, our Supreme Court noted only

two exceptions to this general rule. The first exception is where “there may

be an extraordinary case where the trial court, in the exercise of its

discretion, determines that a claim (or claims) of ineffectiveness if both

meritorious and apparent from the record so that immediate consideration or

relief is warranted.”   Id. at 577. The second exception provides that trial

courts have discretion, upon good cause shown, if there are multiple or

prolix claims of counsel ineffectiveness, and the defendant expressly waives

PCRA review. See id. at 563-64.

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      In the matter sub judice, the trial court did not grant relief and there is

nothing in the record indicating that Appellant expressly waived PCRA

review. Thus, the trial court did not have jurisdiction to consider Appellant’s

ineffective assistance of counsel claim.    See Commonwealth v. Harris,

114 A.3d 1, 6 (Pa. Super. 2015).       This Court “may sua sponte consider

whether we have jurisdiction to consider the merits of the claim presented.”

Id. (citation omitted). As the trial court did not have jurisdiction to consider

the merits of Appellant’s ineffectiveness claims, this Court does not have

jurisdiction to consider the appeal of these claims.     See id.     As counsel

noted, these claims should be raised in Appellant’s first PCRA petition.

Moreover, while Appellant attempted to file an appeal nunc pro tunc,

Appellant never requested such relief from the trial court.

      As counsel has complied with the technical requirements of Anders

and Santiago, this Court must “conduct an independent review for 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). Upon review, we do not discern any non-frivolous issues that

Appellant could have raised.     We therefore grant counsel’s application to

withdraw and quash Appellant’s appeal.

      Appeal quashed. Application to withdraw granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/30/2017




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