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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                     v.                 :
                                        :
MAGNUM AVERI MORRISON,                  :         No. 1159 MDA 2016
                                        :
                          Appellant     :


             Appeal from the Judgment of Sentence, June 16, 2016,
                 in the Court of Common Pleas of Berks County
               Criminal Division at No. CP-06-CR-0001232-2016


BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J. AND STEVENS, P.J.E.*


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED FEBRUARY 15, 2017

        Appellant, Magnum Averi Morrison, appeals from the June 16, 2016

judgment of sentence of 31 months to 7 years’ imprisonment, with

110 days’ credit for time-served, imposed after he pled guilty to robbery.1

Contemporaneously with this appeal, counsel2 has requested leave to

withdraw in accordance with Anders v. California, 386 U.S. 738 (1967),

Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), and their

progeny. After careful review, we grant counsel’s petition to withdraw and

affirm the judgment of sentence.



* Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. § 3701(a)(1)(ii).
2
 At all pertinent times in this appeal, appellant was represented by Brian P.
McBeth, Esq.
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        The relevant facts and procedural history of this case, as gleaned from

the certified record, are as follows.          On February 28, 2016, appellant was

apprehended by police after he attempted to rob a store at gunpoint. (Notes

of testimony, 6/16/16 at 4-5.)            On June 16, 2016, appellant entered a

negotiated guilty plea to one count of robbery in connection with this

incident.       (Id.)    As noted, appellant was sentenced that same day to

31 months to 7 years’ imprisonment, with 110 days’ credit for time-served.

Appellant did not file any post-sentence motions.                 On July 15, 2016,

appellant filed a timely notice of appeal. On July 18, 2016, the trial court

directed appellant to file a concise statement of errors complained of on

appeal, in accordance with Pa.R.A.P. 1925(b).             In lieu of a Rule 1925(b)

statement,       counsel    filed   a   statement   of   his   intention   to   file   an

Anders/McClendon brief, in accordance with Rule 1925(c)(4), on July 20,

2016. Thereafter, on August 16, 2016, the trial court filed a Rule 1925(a)

opinion, concluding that there were no meritorious issues on appeal. (See

trial   court    Rule    1925(a)    opinion,   8/16/16   at    ¶3.)   Thereafter,      on

September 30, 2016, appellant’s counsel filed a motion and brief to

withdraw from representation.             Appellant did not respond to counsel’s

motion to withdraw.

        In his Anders brief, counsel raises the following issue on appellant’s

behalf.

                A.      Whether the trial court imposed an illegal
                        sentence of 31 months to 7 years[’]


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                   incarceration in the Bureau of Corrections after
                   [a]ppellant entered a negotiated guilty plea to
                   robbery, graded as a felony of the first degree,
                   under 18 Pa.C.S.A. § 3701(a)(1)(ii)?

Anders brief at 4.

      “When presented with an Anders brief, this Court may not review the

merits of the underlying issues without first passing on the request to

withdraw.”    Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa.Super.

2010) (citation omitted).        In order to withdraw pursuant to 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).” Commonwealth v. Harden, 103 A.3d 107, 110 (Pa.Super. 2014)

(parallel citation omitted). Specifically, counsel’s Anders brief must comply

with the following requisites:

             (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.

Id. (citation omitted).




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      Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa.Super.

2005), and its progeny, “[c]ounsel also must provide a copy of the Anders

brief to his client.”   Commonwealth v. Orellana, 86 A.3d 877, 880

(Pa.Super. 2014) (internal quotation marks and citation omitted). The brief

must be accompanied by a letter that advises the client of the option 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.”

Id.   “Once counsel has satisfied the above requirements, it is then this

[c]ourt’s duty to conduct its own review of the trial court’s proceedings and

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

frivolous.”   Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa.Super.

2007) (en banc) (citation and internal quotation marks omitted).

      Instantly, we conclude that counsel has satisfied the technical

requirements of Anders and Santiago. Counsel has identified the pertinent

factual and procedural history and made citation to the record. Counsel has

also raised sentencing claims that could arguably support an appeal, but

ultimately concludes that the appeal is wholly frivolous.   Counsel has also

attached to his petition a letter to appellant, which meets the notice

requirements of Millisock.      Accordingly, we proceed to conduct an

independent review of the record to determine whether this appeal is wholly

frivolous.



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        Appellant’s argument is two-fold.       Appellant first contends that the

sentence of 31 months to 7 years’ imprisonment imposed by the trial court

was illegal because it exceeded the statutory maximum. (Anders brief at

10-12.) This claim is meritless.

        “A challenge to the legality of a sentence . . . may be entertained as

long as the reviewing court has jurisdiction.”         Commonwealth v. Wolfe,

106 A.3d 800, 802 (Pa.Super. 2014), affirmed, 140 A.3d 651 (Pa. 2016)

(citation omitted).    “If no statutory authorization exists for a particular

sentence,     that    sentence   is   illegal    and    subject   to   correction.”

Commonwealth v. Rivera, 95 A.3d 913, 915 (Pa.Super. 2014) (citation

omitted). “An illegal sentence must be vacated.” Id. “The determination as

to whether the trial court imposed an illegal sentence is a question of law;

our standard of review in cases dealing with questions of law is plenary.”

Commonwealth v. Stradley, 50 A.3d 769, 772 (Pa.Super. 2012) (citation

omitted).

        Instantly, appellant entered a negotiated guilty plea to one count of

robbery by threatening immediate serious bodily injury, 18 Pa.C.S.A.

§ 3701(a)(1)(ii), which is graded as a felony of the first degree. Pursuant to

18 Pa.C.S.A. § 1103(1), the maximum permissible sentence for a felony of

the first degree “shall be fixed by the court at not more than 20 years.”

(Id.)    As noted, the trial court sentenced appellant in accordance with his

negotiated guilty plea to 31 months to 7 years’ imprisonment, with



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110 days’ credit for time-served.         (Notes of testimony, 6/16/16 at 6-7.)

Contrary to appellant’s contention, this sentence does not exceed the lawful

maximum. Accordingly, appellant’s challenge to the legality of sentence is

meritless.

      Appellant further argues that the trial court failed to comply with the

sentencing guidelines in sentencing him, which constitutes a challenge to the

discretionary aspects of his sentence.          (Anders brief at 11.)   Our review,

however,     reveals   that   appellant    is   precluded   from   challenging   the

discretionary aspects of his sentence because he received a negotiated

sentence. See Commonwealth v. Baney, 860 A.2d 127, 131 (Pa.Super.

2004), appeal denied, 877 A.2d 459 (2005) (appellant may not challenge

the discretionary aspects of the sentence, where the terms of the sentence

were made part of the negotiated plea).3

      Based on the foregoing, we agree with counsel’s assessment that this

appeal is wholly frivolous and that appellant is entitled to no relief on his


3
  We also note that appellant has waived his challenge to the discretionary
aspects of his sentence by failing to raise his claim during the sentencing
hearing or in a post-sentence motion. See Commonwealth v. Jones, 858
A.2d 1198, 1204 (Pa.Super. 2004); Pa.R.Crim.P. 720(A). The record further
reflects that appellant’s brief does not contain a Pa.R.A.P. 2119(f)
statement. While the omission of this statement does not automatically
waive the challenge, where the Commonwealth has objected to the
omission, as is the case here, we must consider the issue waived.
Commonwealth v. Hudson, 820 A.2d 720, 727 (Pa.Super. 2003), appeal
denied, 844 A.2d 551 (Pa. 2004); see also Commonwealth’s brief at 8-9.
Accordingly, we find that appellant has waived his challenge to the
discretionary aspects of his sentence on this basis as well.



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sentencing claims.   After our own independent review of the record, we

discern no additional issues of arguable merit.    Accordingly, we grant

counsel’s petition to withdraw and affirm the June 16, 2016 judgment of

sentence.

     Petition to withdraw granted. Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/15/2017




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