J-S46032-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    DAVID SCOTT RICE                           :
                                               :
                      Appellant                :   No. 112 MDA 2017

              Appeal from the Judgment of Sentence May 3, 2013
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0003324-2011


BEFORE: BOWES, OLSON, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                             FILED JULY 19, 2017

        Appellant, David Scott Rice, appeals nunc pro tunc from the judgment

of sentence entered in the Court of Common Pleas of Lancaster County

following his guilty plea to 105 counts of possession of child pornography, 18

Pa.C.S.A. §§ 6312(d)(1). In addition to this appeal, appellate counsel has

filed a petition seeking to withdraw his representation and a brief pursuant

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

Santiago, 602 Pa. 159, 978 A.2d 349 (2009).             After a careful review, we

grant counsel’s petition to withdraw and affirm Appellant’s judgment of

sentence.



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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       The relevant facts and procedural history have been previously set

forth by this Court, in part, as follows:

              On May 3, 2013, [Appellant] pled guilty on docket number
       3324-2011 to 105 counts of Possession of Child Pornography1 in
       violation of 18 Pa.C.S. § 6312(d)(1).2 Pursuant to a negotiated
       plea agreement, [Appellant] was sentenced to the following: five
       to ten years’ incarceration for each of counts one and two, to be
       served consecutively; two and a half to five years’ incarceration
       for count three, to be served consecutively to count two; five to
       ten years’ incarceration for counts four through 105, to be
       served concurrently with count one. Accordingly, [Appellant’s]
       total aggregate sentence was twelve and a half to twenty five
       years’ incarceration. [Appellant was given 676 days of credit for
       time served.] At the time of the plea, [Appellant] was
       represented by Attorney Samuel Encarnacion. [No direct appeal
       was filed.]
             [On September 13, 2013, Appellant filed a pro se petition
       seeking credit for additional time served, to which the
       Commonwealth responded that the additional time for which
       Appellant sought credit had already been applied to unrelated
       charges at docket number 2157-2009 for which Appellant’s
       probation was revoked when he was arrested on the instant
       charges at docket number 3324-2011. The trial court denied
       Appellant’s petition on October 23, 2013.]
             On April 23, 2014, [Appellant] filed a timely pro se Motion
       for Post-Conviction Collateral Relief [(“PCRA”), 42 Pa.C.S.A. §§
       9541-46], and on May 5, 2014, the [PCRA court] appointed
       Attorney Vincent J. Quinn, Esquire, as PCRA counsel. Mr. Quinn
       was grant[ed] forty-five (45) days to file an amended petition.
       None was filed, and on August 22, 2014, Attorney Quinn filed a
____________________________________________


1
   Each count was graded as a second degree felony, and each was
punishable by up to ten years in prison and a $25,000 fine. N.T., 5/3/13, at
3.
2
  The information describes pornographic photographs and videos depicting
children as young as four years old performing sex acts on adults.
Information, 4/19/13, at Count 83.




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       [Turner/Finley] no-merit letter3 and a Motion to Withdraw as
       Counsel. On October 6, 2014, pursuant to Pa.R.Crim.P. 907, the
       [PCRA court] filed its Notice of Intent to Dismiss [Appellant’s]
       pro se PCRA petition without a hearing and granted Mr. Quinn
       permission to withdraw as counsel.
             On June 24, 2015, for the reasons stated in the court’s
       October 6, 2014, Order, [the PCRA court] dismissed
       [Appellant’s] PCRA Petition without [a] hearing under Rule 907.
       On    July   16,    2015,     [Appellant]   filed  a   Notice  of
       Appeal....[Appellant] included in this Notice an application to
       proceed in forma pauperis for purposes of appellate review. On
       July 29, 2015, [the PCRA court] granted [Appellant’s] Petition to
       proceed with the filing of his appeal in forma pauperis.

Commonwealth v. Rice, No. 1319 MDA 2015, *1-3 (Pa.Super. filed

5/4/16) (unpublished memorandum) (footnotes in original) (quotation to

record omitted).

       On appeal, this Court concluded the PCRA court had failed to address

adequately Appellant’s claim that guilty plea counsel was ineffective in failing

to file a timely, requested direct appeal from his judgment of sentence. See

id.   Thus, this Court vacated the PCRA court’s June 24, 2015, order and

remanded for the appointment of new counsel to review the record and file

an amended PCRA petition. See id.

       Upon remand, the PCRA court appointed Christopher P. Lyden,

Esquire, who filed an amended PCRA petition raising Appellant’s claim that

guilty plea counsel was ineffective in failing to file a direct appeal.      On

____________________________________________


3
 See Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1998).



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January 3, 2017, the PCRA court granted Appellant’s PCRA petition and

reinstated his direct appeal rights.

      On January 5, 2017, Appellant filed the instant timely, counseled

notice of appeal, and in response to the trial court’s Pa.R.A.P. 1925(b) order,

Appellant filed a timely, counseled Pa.R.A.P. 1925(b) statement.      The trial

court filed a responsive Pa.R.A.P. 1925(a) opinion.      Thereafter, appellate

counsel filed with this Court a petition to withdraw his representation, and

he submitted an Anders brief.

      When faced with a purported Anders brief, this Court may not review

the merits of the issues raised therein without first passing on the request to

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

Prior to withdrawing as counsel on a direct appeal under Anders, counsel

must file a brief that meets the requirements established by our Supreme

Court in Santiago. The brief 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, 602 Pa. at 178-79, 978 A.2d at 361. Counsel must also provide

the appellant with a copy of the Anders brief, together with a letter that

advises the appellant of his or her right to “(1) retain new counsel to pursue

the appeal; (2) proceed pro se on appeal; or (3) raise any points that the

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appellant deems worthy of the court's attention in addition to the points

raised by counsel in the Anders brief.” Commonwealth v. Nischan, 928

A.2d 349, 353 (Pa.Super. 2007) (citation omitted).

       Instantly, Attorney Lyden provided a summary of the history of the

case, referred to anything in the record that he believed arguably supports

the appeal, set forth his conclusion that the appeal is frivolous, and stated in

detail his reasons for so concluding.          Moreover, counsel has provided this

Court with a copy of the letter, which counsel sent to Appellant informing

him of his right to retain new counsel, proceed pro se, or raise any points

Appellant deems worthy of this Court’s attention.4        Accordingly, we conclude

counsel has substantially complied with the requirements of Anders and

Santiago. We, therefore, turn to the issues presented in the Anders brief

to make an independent judgment as to whether the appeal is, in fact,

wholly frivolous. Commonwealth v. Bynum-Hamilton, 135 A.3d 179

(Pa.Super. 2016).

       Appellant presents the following issues on appeal:

       1. Was plea counsel ineffective for failing to object to evidence
          not properly authenticated?
       2. Was plea counsel ineffective for failing to properly argue chain
          of custody?

____________________________________________


4
  Appellant has filed neither a pro se brief nor a counseled brief with new,
privately-retained counsel.




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       3. Was plea counsel ineffective for failing to object to affidavits
          containing misstatement of fact?
       4. Was plea counsel ineffective for presenting evidence of a
          phone call without Appellant’s consent?
       5. Was plea counsel ineffective for failing to argue that a lack of
          internet and email history warranted dismissal of charges?
       6. Was plea counsel ineffective for failing to object to the court’s
          failure to award time credit?
       7. Is the sentence imposed unconstitutional pursuant to Alleyne
          v. United States[,133 S.Ct. 2151 (2013)]?

Anders Brief at 4.

       In issues one through six, Appellant presents ineffective assistance of

guilty plea counsel claims. For the reasons that follow, we defer Appellant’s

ineffective assistance of guilty plea counsel claims to be raised in a petition

under the PCRA.5

       Our Supreme Court has held that claims of ineffective assistance of

counsel    generally        must   await    collateral   review    under    the    PCRA.

Commonwealth           v.    Holmes,       621   Pa.   595,   79   A.3d    562    (2013);

Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002). The Holmes

Court recognized two exceptions to the general rule whereby claims of

ineffective assistance of counsel may be raised and addressed on direct

appeal: (1) where the trial court determines that a claim of ineffectiveness is

____________________________________________


5
 This Court has explained that, when a PCRA petitioner’s direct appeal rights
are reinstated nunc pro tunc via a first PCRA petition, a subsequent PCRA
petition will be considered a first PCRA petition. See Commonwealth v.
Karanicolas, 836 A.2d 940 (Pa.Super. 2003).



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both meritorious    and apparent from the           record so       that   immediate

consideration and relief is warranted; or (2) where the trial court finds good

cause for unitary review, and the defendant makes a knowing and express

waiver of his entitlement to seek PCRA review from his conviction and

sentence, including an express recognition that the waiver subjects further

collateral review to the time and serial petition restrictions of the PCRA.

Holmes, 79 A.3d at 564, 577.

      Here,   Appellant   did   not   satisfy   either   of   the   aforementioned

exceptions.   With regard to the first exception, the trial court made no

determination that any of the claims of ineffectiveness are both meritorious

and apparent from the record. In fact, in its Pa.R.A.P. 1925(a) opinion, the

trial court urges this Court to defer the ineffectiveness claims to collateral

review. Trial Court Opinion, filed 4/19/17, at 4. With regard to the second

exception, there is no indication Appellant has made a knowing and express

waiver of his entitlement to seek PCRA review.           Consequently, in light of

Holmes, we dismiss Appellant’s claims of ineffective assistance of guilty plea

counsel without prejudice to his ability to raise the claims in a subsequent

PCRA petition, if he so chooses.

      In his final issue, Appellant contends that his sentence is illegal

pursuant to Alleyne, supra. “Issues relating to the legality of a sentence

are questions of law. Our standard of review over such questions is de novo

and our scope of review is plenary.” Commonwealth v. Libengood, 152


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A.3d 1057, 1061-62 (Pa.Super. 2016) (quotation marks and quotation

omitted).

        In Alleyne, the United States Supreme Court held that “facts that

increase mandatory minimum sentences must be submitted to the jury” and

found beyond a reasonable doubt. Id. at 2163. The trial court determined

that Alleyne is inapplicable to Appellant’s sentence as he “was not

sentenced pursuant to a mandatory minimum sentence which would fall

under the ambit of the Alleyne decision.” Trial Court Opinion, filed 4/19/17,

at 6.    We agree with the trial court in this regard, and thus, the rule

announced in Alleyne is inapplicable to the within case.

        For all of the foregoing reasons, and after an independent review, we

conclude Appellant is not entitled to relief and we grant counsel's petition to

withdraw his representation.

        Judgment of Sentence Affirmed.     Petition to Withdraw as Counsel

Granted.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/19/2017




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