J-S73022-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

GREGORY R. AMOS

                            Appellant              No. 1181 MDA 2014


           Appeal from the Judgment of Sentence of March 24, 2014
              In the Court of Common Pleas of Lycoming County
              Criminal Division at No.: CP-41-CR-0000491-2013


BEFORE: BOWES, J., WECHT, J., and MUSMANNO, J.

MEMORANDUM BY WECHT, J.:                       FILED DECEMBER 18, 2014

       Gregory R. Amos appeals his March 24, 2014 judgment of sentence,

which was imposed pursuant to a negotiated guilty plea to one count of

possession with intent to deliver cocaine,1 and one count of driving under

suspension.2 Amos’ counsel has filed with this Court a petition to withdraw

as counsel, together with an “Anders” brief.3 We grant counsel’s petition to

withdraw, and we quash Amos’ appeal for want of jurisdiction.

       The trial court has summarized the procedural history of this case as

follows:

____________________________________________


1
       35 P.S. § 780-113(a)(30).
2
       75 Pa.C.S. § 1543(a).
3
       See Anders v. California, 386 U.S. 738 (1967).
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      On March 8, 2013, Trooper Joel Miles charged [Amos] with
      possession of a controlled substance, possession with intent to
      deliver a controlled substance, possession of drug paraphernalia,
      driving a vehicle with a suspended registration, driving without a
      license, and driving while his license was suspended or revoked.

      On August 21, 2013, [Amos] entered a guilty plea to possession
      with intent to deliver more than 10 grams of cocaine and driving
      under suspension (DUS). The plea agreement provided that the
      Commonwealth would waive all mandatories and any school
      zone enhancement, and [Amos] would waive his eligibility for
      Boot Camp and a Recidivism Risk Reduction Incentive (RRRI),
      forfeit $195, and receive a sentence of thirty to sixty months for
      possession with intent to deliver a controlled substance, and a
      $1000 fine and consecutive thirty-day sentence for DUS.

      On March 24, 2014, the court sentenced [Amos] to two and one
      half to five years’ incarceration in a state correctional institution
      for possession with intent to deliver cocaine and a $1000 fine
      and a concurrent fifteen to thirty days’ incarceration for DUS.
      The court specifically noted that [Amos] was ineligible for RRRI
      due to a simple assault conviction, but he also waived RRRI and
      boot camp eligibility as part of the plea agreement.

Trial Court Opinion (“T.C.O.”), 8/11/2014, at 1-2 (footnotes omitted; some

numerals and punctuation modified).

      Amos did not file a post-sentence motion after his sentence was

imposed on March 24, 2014.        On June 23, 2014, Amos mailed a pro se

petition, entitled “Petition for Appellate Review of Sentence” to this Court,

which we received on June 26, 2014. On July 17, 2014, this Court entered

an order granting the application “to the extent that it shall be treated as a

Notice of Appeal, filed in the trial court on June 27, 2014.” The trial court

did not direct Amos to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b).          In accordance with Pa.R.A.P.




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1925(a), the trial court issued an opinion in support of its order on August

11, 2014.

      Before addressing the merits of the underlying issue that Amos

presents for our review, we first must pass upon counsel’s petition to

withdraw.   Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.

2007) (en banc). 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 Commonwealth v. Santiago, 978 A.2d 349, 361

(Pa. 2009). 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, 978 A.2d at 361.       Counsel also must provide a copy of the

Anders brief to the appellant.    Attending the brief must be 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

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); see Commonwealth v. Daniels, 999

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A.2d 590, 594 (Pa. Super. 2010); Commonwealth v. Millisock, 873 A.2d

748, 751 (Pa. Super. 2005).

      Our review of counsel’s petition to withdraw and the accompanying

brief reveals that counsel substantially has complied with the Santiago

requirements.    Counsel has provided a factual and procedural history

detailing the events relevant to the instant appeal in his brief.    Brief for

Amos at 5. Amos identified one issue to counsel that he wanted to raise on

appeal: a claim that, because the trial court failed to sentence Amos to a

RRRI minimum sentence, the sentence imposed is excessive and an abuse of

discretion. Id. at 8. Counsel addresses the applicable facts and principles of

law, ultimately concluding that this claim would be frivolous. Id. at 11-12.

In his petition to withdraw as counsel filed with this Court, counsel again

certified that he has “made a conscientious examination of the record and

current case law and believes that the appeal is frivolous.” See Petition for

Permission to Withdraw as Counsel, 8/22/2014, ¶5. Although counsel has

not referred to any information in the record that counsel believes arguably

would support Amos’ pursuit of relief, we acknowledge that the absence of

such a reference reflects the fact that counsel believes that there is no

information in the record that supports Amos’ claim.

      Additionally, in accordance with Nischan, counsel has sent Amos a

copy of the Anders brief and a letter informing him that: (1) he has the

right to retain new counsel; (2) he may proceed further with his case pro se;

and (3) he may raise any points that he deems worthy of the Superior

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Court’s attention. Letter, 9/19/2014. Accordingly, we conclude that counsel

substantially has complied with the requirements set forth in Nischan, 928

A.2d at 353. See also Millisock, 873 A.2d at 751.

        We now must conduct an independent review of the record to

determine whether the issue identified by Amos in this appeal is, as counsel

claims, wholly frivolous, or if there are any other meritorious issues present

in this case. Santiago, 978 A.2d at 354 (quoting Anders, 386 U.S. at 744)

(“[T]he court – not counsel – then proceeds, after a full examination of all

the proceedings, to decide whether the case is wholly frivolous.         If it so

finds, it may grant counsel’s request to withdraw . . .”).       We agree with

counsel that this appeal is wholly frivolous, but we do so for different

reasons.   Indeed, as we set forth below, Amos’ untimely notice of appeal

renders this Court without jurisdiction

        “It is well settled that the timeliness of an appeal implicates our

jurisdiction and may be considered sua sponte.”              Commonwealth v.

Trinidad, 96 A.3d 1031, 1034 (Pa. Super. 2014) (citation omitted).          This

Court    does   not   have   jurisdiction   to   hear   an    untimely   appeal.

Commonwealth v. Green, 862 A.2d 613, 615 (Pa. Super. 2004) (en banc).

         If no post-sentence motion is filed within ten days after the

imposition of a sentence, a defendant has thirty days from sentencing to file

a direct appeal.      Pa.R.Crim.P. 720(A)(3); Pa.R.A.P. 903(c)(3).        Amos’

sentence was imposed on March 24, 2014, and Amos did not file a post-

sentence motion. Therefore, Amos must have filed a notice of appeal on or

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before April 23, 2014. Amos mailed his pro se petition to this Court on June

23, 2014, and by this Court’s order on July 17, 2014, the petition was

deemed to be a notice of appeal filed in the trial court on June 27, 2014.

Even giving Amos the benefit of treating June 23, 2014 as the filing date

pursuant to the “prisoner mailbox rule,”4 his notice of appeal was still

untimely by nearly two months. Accordingly, we are without jurisdiction to

consider the merits of this appeal.

       We conclude that counsel substantially has complied with the

requirements of Anders and Santiago, and agree with counsel’s conclusion

that Amos’ appeal is frivolous, though for different reasons.             The

jurisdictional defect implicated by Amos’ untimely notice of appeal prevents

us from considering the merits of Amos’ claim.

       Appeal quashed. Counsel’s motion to withdraw as counsel granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/18/2014


____________________________________________


4
     See Houston v. Lack, 487 U.S. 266 (1988); Smith v. Pennsylvania
Bd. of Prob. & Parole, 683 A.2d 278 (Pa. 1996).




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