J-S26011-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMES BALDWIN                              :
                                               :
                       Appellant               :   No. 829 EDA 2018

            Appeal from the Judgment of Sentence February 16, 2018
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0805051-2004


BEFORE:      PANELLA, P.J., GANTMAN, P.J.E., and PELLEGRINI, J.

MEMORANDUM BY PANELLA, P.J.:                       FILED SEPTEMBER 05, 2019

        James Baldwin appeals from the judgment of sentence entered in the

Philadelphia County Court of Common Pleas following revocation of his

probation. Additionally, his court appointed counsel, Shonda Williams, Esq.,

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

and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review,

we grant Williams’s petition to withdraw and affirm Baldwin’s judgment of

sentence.

        On February 2, 2005, Baldwin pled guilty to possession with intent to

deliver a controlled substance (“PWID”), 35 P.S. § 780-113(a)(30).1 Pursuant

____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1According to the criminal complaint, the controlled substance in Baldwin’s
possession was heroin. See Criminal Complaint, 8/4/2004.
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to a negotiated plea agreement, Baldwin was sentenced to 1 year County

Intermediate Punishment, followed by 2 years’ probation. Over the next ten

years, Baldwin’s probation was revoked on four separate occasions resulting

in several state and county prison sentences. Baldwin’s probation was revoked

for the fifth time on January 17, 2018. The revocation court sentenced Baldwin

to 11 ½ to 23 months’ imprisonment with credit for time served. This appeal

follows.

       As an initial matter, we must note the transcript from Baldwin’s plea and

original sentencing hearing is unavailable.2 Without notes of testimony, we

are unable to conduct an independent review, as required by Anders, of the

entire record for any non-frivolous issues. See Commonwealth v. Flowers,

113 A.3d 1246, 1249-50 (Pa. Super. 2015). However, we need only conduct

a “simple” review of the record. See Commonwealth v. Dempster, 187 A.3d

266, 272 (Pa. Super. 2018) (en banc). The purpose of this review is to

determine if, “on its face, there are non-frivolous issues that counsel … missed

or misstated.” See Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa.

Super. 2018). Since this transcript is not in the certified record, and we have

received reassurance it cannot be added, we are precluded from considering

it. See Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (en

banc). As our independent review of the record actually before us reveals no


____________________________________________


2 The designated court reporter has informed this Court that the transcript
cannot be produced.

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issues that counsel missed or mistated, we will confine our scope of review to

the single issue Attorney Williams identified as non-frivolous in her Anders

brief.

         Prior to addressing the merits of Baldwin’s requested appeal, we must

examine Attorney Williams‘s request to withdraw. To withdraw pursuant to

Anders, 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 [Anders] brief to the [appellant]; and 3) advise the
         [appellant] that he or she has the right to retain private counsel
         or raise additional arguments that the [appellant] deems worthy
         of the court’s attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en

banc) (citation omitted). With respect to the third requirement of Anders,

that counsel inform the appellant of his or her rights in light of counsel’s

withdrawal, this Court has held that counsel must “attach to their petition to

withdraw a copy of the letter sent to their client advising him or her of their

rights.” Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).

         An Anders brief must comply with the following requirements:

         (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. “When faced with a purported Anders brief, we

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may not review the merits of the underlying issues without first deciding

whether   counsel    has   properly   requested   permission    to   withdraw.”

Commonwealth v. Lee, 2819 EDA 2017, at 2 (Pa. Super., filed May 6, 2019)

(unpublished memorandum).

      Instantly, we conclude Attorney Williams has satisfied the requirements

of Anders and Santiago. Williams provided Baldwin with a copy of the brief;

advised him of his right to retain new counsel or proceed pro se; and filed with

this Court a copy of the letter she sent to Baldwin. See Millisock, 873 A.2d

at 752. Accordingly, Williams has complied with the technical requirements for

withdrawal.

      Baldwin has not filed a response to the petition to withdraw. The Anders

brief identifies one issue for our review – whether Baldwin’s sentence entered

after the court revoked probation exceeds the maximum sentence allowable

under statute for his specific PWID conviction. See Appellant’s brief, at 9-10.

In particular, Baldwin contends the maximum sentence for a PWID heroin

conviction is 10 years. See id, at 10.

      We agree Baldwin’s challenge to his sentence is frivolous. Baldwin was

convicted of PWID heroin. Heroin is a Schedule I narcotic. See 35 P.S. § 780-

104 (1)(ii)(10). Contrary to Baldwin’s assertion, the maximum sentence for a

PWID heroin conviction is 15 years. See 35 P.S. § 780-113 (f)(1). By Baldwin’s

own calculations, he had spent seven years, three months, and five days in

custody prior to this revocation of his probation. Adding the maximum


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sentence of 23 months produces a maximum aggregate term of incarceration

of nine years, two months, and five days. Baldwin’s sentence entered after

the court revoked probation does not exceed the maximum sentence under

the statute. Therefore, Baldwin’s appeal is frivolous.

      Petition to withdraw granted. Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/5/19




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