J-S73007-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

DAVID PRICE,

                         Appellant                  No. 781 MDA 2014


          Appeal from the Judgment of Sentence March 18, 2014
              In the Court of Common Pleas of Berks County
            Criminal Division at No(s): CP-06-CR-002357-2012


BEFORE: BOWES, WECHT, and MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                       FILED DECEMBER 04, 2014

      David Price appeals from the judgment of sentence of twenty-two to

sixty months imprisonment that the trial court imposed after Appellant pled

guilty to robbery. Appellate counsel has filed a petition seeking to withdraw

her representation and a brief pursuant to Anders v. California, 386 U.S.

738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009),

which govern a withdrawal from representation on direct appeal. We grant

the petition to withdraw and affirm.

      On January 9, 2012, Appellant committed an armed robbery at an

Econo Lodge in Amity Township, Berks County. Tiffany Smith was working

as a clerk when Appellant approached her, asked about rates, and left.

Appellant then returned with a weapon.          Acting in conformity with

Appellant’s demands, Ms. Smith gave Appellant the drawer from Econo
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Lodge’s cash register and her money and identification.        Appellant was

apprehended after police viewed surveillance footage taken of the incident.

On May 14, 2012, Appellant was charged with robbery graded as a first-

degree felony, robbery graded as a second-degree felony, simple assault,

theft, and receiving stolen property.

      Appellant initially entered a guilty plea to robbery graded as a first-

degree felony in exchange for a sentence of imprisonment of twenty-two to

sixty months with boot camp eligibility. The court sentenced in accordance

with that arrangement, but Appellant subsequently discovered that he was

not eligible for boot camp due to the fact that the robbery in question was

graded as a first-degree felony.    61 Pa.C.S. § 3903 (rendering someone

convicted of first-degree felony robbery unable to participate in motivational

boot camp).

      Appellant petitioned to file a motion to withdraw his guilty plea nunc

pro tunc. On March 18, 2014, that motion was granted, the court permitted

Appellant to withdraw his guilty plea, and Appellant entered a second guilty

plea to robbery graded as a second-degree felony.        At that proceeding,

Appellant admitted that on January 9, 2012, while in the course of

committing a theft, he threatened Tiffany Smith with a firearm or a replica

firearm and placed Ms. Smith in fear of immediate serious bodily injury.

      Then, Appellant and the Commonwealth both specifically requested

that the same sentence of twenty-two to sixty months imprisonment, which


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exceeded the applicable guideline ranges, be imposed.         Specifically, the

Commonwealth stated, “The plea agreement calls for a sentence of 22 to 60

months in a state correctional institute, which is outside the guidelines

entirely.” N.T. Plea, 3/18/04, at 7. The district attorney continued that the

sentence was appropriate because the Commonwealth had agreed that

Appellant could plead guilty to a second-degree rather than a first-degree

felony.   It also observed that the crime carried “a gun mandatory of five

years that the Commonwealth [had] agreed not to seek.”              Id.    The

prosecutor maintained that, even though the negotiated sentence exceeded

the   applicable   guideline   ranges,   it   was   “appropriate   under   the

circumstances.” Id.

      Appellant’s counsel agreed with these assertions and specifically asked

the court to “go along with [the district attorney’s] statement.” Id. Defense

counsel reported that the twenty-two to sixty-month sentence was “basically

what we had agreed to the first time.” Id. Counsel represented that it was

out of character for Appellant to commit an armed robbery and concurred

that the “District Attorney’s Office [had been] willing to drop the mandatory

in this case based upon affidavits and letters written to the DA by people on

[Appellant’s] behalf.” Id.

      Accordingly, on March 18, 2014, Appellant received a sentence of

twenty-two to sixty months incarceration with boot camp eligibility as well as

credit for time served. Appellant filed an untimely pro se motion to modify


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his sentence and complained that it was excessive. He also filed the within

appeal, but counsel filed the appellate brief.

      Before we address the question raised on appeal, we first must resolve

appellate counsel’s request to withdraw. Commonwealth v. Cartrette, 83

A.3d 1030 (Pa.Super. 2013) (en banc). There are procedural and briefing

requirements imposed upon an attorney who seeks to withdraw on appeal.

The procedural mandates are that 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 brief to the defendant; and 3) advise the defendant that
      he or she has the right to retain private counsel or raise
      additional arguments that the defendant deems worthy of the
      court's attention.

Id. at 1032 (citation omitted).

      In this case, counsel has satisfied those directives. Counsel’s petition

to withdraw sets forth the following. Counsel reviewed the record as well as

pertinent legal authority and believed that there are no non-frivolous issues

to be raised on appeal.       Counsel notified Appellant of her request to

withdraw and forwarded to Appellant a copy of the brief as well as the

petition to withdraw. Counsel sent a letter to Appellant advising him of his

right to submit on his own behalf additional arguments or comments and of

his right to retain new counsel to pursue this appeal. Thus, counsel satisfied

the procedural requirements for withdrawal.




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     We now examine whether the brief comports with the Supreme Court’s

dictates in Santiago, supra, which provides that

     in 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.

Cartrette, supra at 1032 (quoting Santiago, supra at 361).

     Counsel’s brief is compliant with Santiago.     It sets forth the factual

and procedural history of this case and establishes why Appellant’s issue

lacks merit.   Applicable legal authority is provided.   We now examine the

merits of the issue raised and, after reviewing that contention, we will

independently review the record in order to determine if counsel’s

assessment of the frivolity of the present appeal is correct.      Cartrette,

supra. Appellant raises one issue for our review:

     Whether Price’s sentence of 22 months – 60 months in a state
     correctional institution was manifestly excessive, clearly
     unreasonable, and contrary to the fundamental norms
     underlying the Sentencing Code, where (1) the court imposed a
     sentence beyond the aggravated guideline range without stating
     sufficient reasons on the record for the upward deviation and (2)
     the court did not consider mitigating factors including the
     absence of a prior criminal record, cooperation with authority
     upon arrest, demonstrating remorse for the crime committed, no
     misconduct during incarceration and gainful employment
     available upon release from incarceration, all in violation of 42
     Pa.C.S.A. § 9721(b)?

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Appellant’s brief at 5.

      These averments all relate to the discretionary aspects of the

sentence.   As appellate counsel notes, Appellant and the Commonwealth

agreed that Appellant would be sentenced to twenty-two to sixty months

incarceration. Since Appellant entered a negotiated guilty plea to a sentence

that did not exceed the lawful maximum and since he was sentenced in

accordance with the plea, he cannot challenge the discretionary aspects of

the sentence imposed.        Commonwealth v. Reichle, 589 A.2d 1140

(Pa.Super. 1991).

      We also observe that the issue in question was not preserved since it

was not raised at sentencing or in a post-sentence motion. While Appellant

did file an untimely pro se motion to modify his sentence, Appellant was

represented when the motion was filed. Hence, the pro se motion to modify

the sentence was a legal nullity, and it did not operate to preserve his

discretionary sentencing claims.    Commonwealth v. Nischan, 928 A.2d

349, 355 (Pa.Super. 2007).

      We also have conducted an independent review of the record and

agree with counsel’s assessment that there are no preserved challenges to

the plea or sentence. Hence, we concur with counsel’s assessment that the

issue is wholly frivolous, grant the petition to withdraw, and affirm.

      Petition of Amy J. Shaffer, Esquire, to withdraw as counsel is granted.

Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/4/2014




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