J-S71020-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA


                       v.

ROBERT LISINICHIA

                            Appellant                    No. 912 EDA 2016


           Appeal from the Judgment of Sentence February 17, 2016
            In the Court of Common Pleas of Northampton County
             Criminal Division at No(s): CP-48-CR-0001973-2015
                                         CP-48-CR-0003869-2015


BEFORE: BOWES, J., PANELLA, J., and FITZGERALD, J. *

MEMORANDUM BY PANELLA, J.                           FILED NOVEMBER 29, 2016

        Appellant, Robert Lisinichia, appeals from the judgment of sentence

entered on February 17, 2016, in the Court of Common Pleas of

Northampton County. Additionally, Lisinichia’s court-appointed counsel,

Matthew J. Deschler, Esquire, has filed an application to withdraw as counsel

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

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After careful

review, we affirm Lisinichia’s judgment of sentence and grant counsel’s

petition to withdraw.



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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        On July 20, 2015, Lisinichia was charged with two counts of

involuntary deviate sexual intercourse with a child, criminal attempt to

commit rape of a child, indecent assault against a person less than thirteen

years of age, corruption of minors, and endangering the welfare of a child.1

On November 25, 2015 in exchange for the Commonwealth agreeing to

withdraw all other charges, Lisinichia entered a guilty plea to two counts of

indecent assault as a felony of the third degree. The negotiated guilty plea

agreement included the future disposition of pending failure to register2

charges on a separate docket, as well as an agreed-upon aggregate

sentence of 7 to 14 years’ incarceration for Lisinichia’s charges at both

dockets.

        On February 17, 2016, Lisinichia pleaded guilty to failure to register

with the Pennsylvania State Police pursuant to the terms of the negotiated

guilty plea agreement. The trial court thereafter sentenced Lisinichia on each

count of indecent assault to 3½ to 7 years’ incarceration, and on the failure

to register offense to 33 to 66 months’ incarceration. The sentences for

indecent assault were run consecutively to each other, while the sentence

for failure to register was run concurrently to the indecent assault sentences.

Following sentencing, Lisinichia sent numerous ex parte letters to the trial
____________________________________________


1
  18 Pa.C.S.A. §§ 3123(b), 901(a), 3126(a)(7), 6301(a)(1)(ii), and
4304(a)(1), respectively.
2
    18 Pa.C.S.A. § 4915.1(a.1)(1).



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court, which the trial court treated as a collective motion for post-sentence

relief. Subsequently, on March 10, 2016, the trial court denied Lisinichia’s

post-sentence motion, and granted him the right to appeal nunc pro tunc.

This timely appeal followed. The trial court appointed Attorney Deschler to

serve as appellate counsel.

      As noted, Attorney Deschler has requested to withdraw and has

submitted an Anders brief in support thereof contending that Appellant’s

appeal is frivolous. The Pennsylvania Supreme Court has articulated the

procedure to be followed when court-appointed counsel seeks to withdraw

from representing an appellant on direct appeal.

      [I]n 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
      arguably believes 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.

      Attorney   Deschler     has   substantially   complied   with   all   of   the

requirements of Anders as articulated in Santiago. Additionally, Attorney

Deschler confirms that he sent a copy of that Anders brief as well as a letter

explaining to Appellant that he has the right to proceed pro se or the right to

retain new counsel. A copy of the letter is appended to Attorney Deschler’s

petition. See Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super.

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2010); Commonwealth v. Millisock, 873 A.2d 748, 749 (Pa. Super.

2005). Appellant did not file a response.

      We will now proceed to examine the issues counsel has set forth in his

Anders brief. Counsel identifies two issues that Appellant desires to raise on

appeal. First, Appellant contends that his guilty plea was involuntary due to

the pressure exerted upon Appellant by guilty plea counsel. However, we

observe that claims of ineffectiveness of counsel are generally not ripe until

collateral review. See Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa.

2013). To the extent that Appellant’s argument hinges on circumstances

other than counsel’s effectiveness, our review of the record indicated that he

was fully apprised of the consequences of his plea during his oral colloquies

with the trial court. See N.T., Guilty Plea, 11/25/15, at 6, 16; N.T., Guilty

Plea and Sentencing, 2/17/16, at 10-11. We therefore agree with counsel’s

assessment that this issue is wholly meritless.

      In his second issue, Appellant contends that the aggregate sentence of

imprisonment imposed is excessive. Appellant concedes that his argument

challenges the discretionary aspects of the trial court’s sentence. See

Anders Brief, at 8. “A challenge to the discretionary aspects of a sentence

must be considered a petition for permission to appeal, as the right to

pursue such a claim is not absolute.” Commonwealth v. McAfee, 849 A.2d

270, 274 (Pa. Super. 2004) (citation omitted). When challenging the

discretionary aspects of the sentence imposed, an appellant must present a


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substantial question as to the inappropriateness of the sentence. See

Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005). “Two

requirements must be met before we will review this challenge on its

merits.” McAfee, 849 A.2d at 274. “First, an appellant must set forth in his

brief a concise statement of the reasons relied upon for allowance of appeal

with respect to the discretionary aspects of a sentence.” Id. (citation

omitted).

      “Second, the appellant must show that there is a substantial question

that the sentence imposed is not appropriate under the Sentencing Code.”

Id. (citation omitted). That is, “the sentence violates either a specific

provision of the sentencing scheme set forth in the Sentencing Code or a

particular fundamental norm underlying the sentencing process.” Tirado,

870 A.2d at 365 (citation omitted). We examine an appellant’s Rule 2119(f)

statement to determine whether a substantial question exists. See id. “Our

inquiry must focus on the reasons for which the appeal is sought, in contrast

to the facts underlying the appeal, which are necessary only to decide the

appeal on the merits. Id. (citation omitted).

      Here, Appellant’s appellate brief does not contain the requisite Rule

2119(f) concise statement, and, as such, this issue could be technically

waived. See, e.g., Commonwealth v. Gambal, 561 A.2d 710, 713 (Pa.

1989). Furthermore, the argument section of counsel’s Anders brief does

not separately list the arguments regarding each issue identified. However,


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rather than remand for an appropriate Anders brief, we will assess

Lisinichia’s issue on the merits in the interest of judicial efficiency.

      Lisinichia argues that the sentence imposed by the trial court was

unreasonable and exceeds the sentencing guidelines. See Anders Brief, at

6. We have generally held that a claim that a sentence outside of the

guidelines is unreasonable constitutes a substantial question for appellate

review. See Commonwealth v. Hill, 66 A.3d 365, 369 (Pa. Super. 2013).

However, Lisinichia waived all rights to challenge the discretionary aspects of

his sentence by entering into a negotiated guilty plea that set the length of

his incarceration. See Commonwealth v. Reichle, 589 A.2d 1140, 1141

(Pa. Super. 1991). As the trial court imposed the agreed-upon sentence,

Lisinichia cannot now challenge the discretionary aspects of that sentence.

He received exactly what he bargained for. Thus, we agree with counsel’s

assertion that Lisinichia’s second issue on appeal is meritless.

      After examining the issues contained in the Anders brief and

undertaking our independent review of the record, we concur with counsel’s

assessment that the appeal is wholly frivolous.

      Judgment of sentence affirmed. Permission to withdraw as counsel

granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/29/2016




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