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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :
                                           :
MAHMOUD REDDY,                             :          No. 1578 EDA 2018
                                           :
                          Appellant        :


         Appeal from the Judgment of Sentence Entered April 15, 2016,
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No. CP-51-CR-0002109-2010


BEFORE: BOWES, J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED SEPTEMBER 23, 2019

        Mahmoud Reddy appeals from the April 15, 2016 judgment of sentence

entered in the Court of Common Pleas of Philadelphia County after the trial

court resentenced appellant to an aggregate term of incarceration of three to

ten years as a result of his conviction in a jury trial of one count of possession

with intent to deliver a controlled substance (“PWID”).1 Michael L. McDermott,

Esq., has filed a petition to withdraw, alleging that the appeal is frivolous, and

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

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

we grant counsel’s petition to withdraw and affirm the judgment of sentence.

        The trial court set forth the following procedural history:




1   35 P.S. § 780-113(a)(30).
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            On March 28, 2013, at the conclusion of his jury trial,
            [appellant] was found guilty on the sole charge of
            [PWID].      On June 26, 2013, [appellant] was
            sentenced to a period of confinement of 3 to 10 years
            in a state correctional facility. On July 26, 2013,
            [appellant] timely filed an appeal to the Superior
            Court of Pennsylvania, at 2493 EDA 2013.           On
            April 23, 2015 the Superior Court affirmed
            [appellant’s] conviction.    However, [because the
            Superior Court determined that appellant received an
            illegal mandatory minimum sentence] pursuant to
            Alleyne v. United States, [570 U.S. 99,] 133 S.Ct.
            2151, [186 L.Ed.2d 314 (2013),] and its Pennsylvania
            progeny, [it] remanded the matter back for
            resentencing.

            On April 15, 2016, [appellant] was resentenced to a
            period of confinement in a state correctional facility of
            3 to 10 years on the sole charge of PWID. On April 22,
            2016, [appellant] filed a motion for reconsideration of
            his sentence, which the [trial court] denied on
            April 27, 2016, without a hearing. [Appellant] did not
            file a direct appeal.

            On August 16, 2016, [appellant] timely filed a [Post
            Conviction   Relief    Act]   Petition   pursuant    to
            42 Pa.C.S.A.      §[§]       9541[-9546],       seeking
            reinstatement of his direct appellate rights.       On
            April 24, 2018, the [trial court], after a hearing,
            reinstated [appellant’s] direct appellate rights.

            On May 23, 2018, [appellant] timely filed the instant
            appeal to the Superior Court of Pennsylvania. On
            May 29, 2018, [the trial court] filed and served on
            [appellant] an Order pursuant to Rule 1925(b) of the
            Pennsylvania Rules of Appellate Procedure, directing
            [appellant] to file and serve a Statement of Errors
            Complained of on Appeal, within 21 days of the [trial
            court]’s Order. On June 18, 2018, [appellant] timely
            filed his [Rule 1925(b) statement)].

Trial court opinion, 1/10/19 at 1-2 (footnote omitted). Thereafter, the trial

court filed its Rule 1925(a) opinion.


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     Preliminarily, we must address the petition to withdraw alleging that the

appeal is frivolous and the Anders brief that Attorney McDermott filed.

           A request by appointed counsel to withdraw pursuant
           to Anders and Santiago gives rise to certain
           requirements and obligations, for both appointed
           counsel and this Court. Commonwealth v. Flowers,
           113 A.3d 1246, 1247-1248 (Pa.Super. 2015).

                These requirements and the significant
                protection they provide to an Anders
                appellant arise because a criminal defendant
                has a constitutional right to a direct appeal
                and    to    counsel    on    that    appeal.
                Commonwealth v. Woods, 939 A.2d 896,
                898 (Pa.Super. 2007).        This Court has
                summarized these requirements as follows:

                    Direct appeal counsel seeking to
                    withdraw under Anders must file a
                    petition averring that, after a
                    conscientious examination of the
                    record, counsel finds the appeal to
                    be wholly frivolous. Counsel must
                    also file an Anders brief setting
                    forth issues that might arguably
                    support the appeal along with any
                    other issues necessary for the
                    effective appellate presentation
                    thereof.

                    Anders counsel must also provide a
                    copy of the Anders brief and
                    petition to the appellant, advising
                    the appellant of the right to retain
                    new counsel, proceed pro se or raise
                    additional points worthy of the
                    Court’s attention.

                Woods, 939 A.2d at 898 (citations omitted).




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                   There are also requirements as to
                   the precise content of an Anders
                   brief:

                       The Anders brief that
                       accompanies             court-
                       appointed           counsel’s
                       petition to withdraw . . .
                       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.

          Id. at 1248. If this Court determines that appointed
          counsel has met these obligations, it is then our
          responsibility “to make a full examination of the
          proceedings and make an independent judgment to
          decide whether the appeal is in fact wholly frivolous.”
          Id. at 1248. In so doing, we review not only the
          issues identified by appointed counsel in the Anders
          brief, but examine all of the proceedings to “make
          certain that appointed counsel has not overlooked the
          existence of potentially non-frivolous issues.” Id.

Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).



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       Our review of Attorney McDermott’s petition to withdraw, supporting

documentation, and Anders brief reveals that he has substantially complied

with   all   of   the   foregoing   requirements,   which   is   sufficient.   See

Commonwealth v. Reid, 117 A.3d 777, 781 (Pa.Super. 2015) (finding that

“[s]ubstantial compliance with [Anders] requirements is sufficient.”).

Attorney McDermott simultaneously furnished a copy of the Anders brief to

appellant and advised him of his right to retain new counsel, proceed pro se,

or raise any additional points that he deems worthy of this court’s attention.

Attorney McDermott attached a copy of that letter to the Anders brief and to

the petition to withdraw, both of which he filed with this court. In the petition

to withdraw, Attorney McDermott averred that, after a thorough examination

of the record, he concluded the appeal does not present a non-frivolous legal

question. Additionally, Attorney McDermott furnished appellant with a copy

of the petition to withdraw. Appellant has not filed a response to the Anders

brief or the petition to withdraw.       Therefore, as Attorney McDermott has

substantially complied with all of the requirements set forth above, we

conclude that counsel has satisfied the procedural requirements of Anders.

       Once counsel has met his obligations, “it then becomes the responsibility

of the reviewing court to make a full examination of the proceedings and make

an independent judgment to decide whether the appeal is in fact wholly

frivolous.” Santiago, 978 A.2d at 355 n.5.




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       With   respect    to   briefing   requirements,    “[n]either    Anders   nor

McClendon requires that counsel’s brief provide an argument of any sort, let

alone the type of argument that counsel develops in a merits brief. To repeat,

what the brief must provide under Anders are references to anything in the

record that might arguably support the appeal.” Santiago, 978 A.2d at 359,

360.

       Here, in his statement of questions presented, Attorney McDermott

raises the following issue: “Is [sic] there any nonfrivolous issues regarding

[appellant’s] sentence?”      (Anders brief at 6.)       Counsel then sets forth a

procedural history of the case, albeit without record references. Counsel does

include the issues presented in appellant’s Rule 1925(b) statement which

(1) challenged the legality of the sentence, (2) claimed that the trial court

failed to place its reasons on the record for deviating from the sentencing

guidelines, and (3) alleged that the sentence was manifestly excessive. (Id.

at 8.) Counsel then examines appellant’s sentence, with appropriate citation

to the sentencing transcript, to conclude that (1) appellant’s sentence is legal,

(2) the trial court placed its reasons for deviating from the sentencing

guidelines on the record, and (3) the trial court properly exercised its

discretion    when      resentencing     appellant.      (Id.   at     10-11.)   As

Attorney McDermott explains, and as the record reflects, even though

appellant’s prior record score was 5 and the guidelines range was 24 to

30 months, plus or minus 6 months, the trial court deviated upward because



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the prior record score understated appellant’s criminal history, which was a

proper exercise of discretion.   See, e.g., Commonwealth v. Griffin, 804

A.2d 1, 8 (Pa.Super. 2002), appeal denied, 868 A.2d 1198 (Pa. 2005), cert.

denied, 545 U.S. 1148 (2005), citing Commonwealth v. Eby, 784 A.2d 204

(Pa.Super. 2001) (reiterating that “the sentencing judge must state of record

the factual basis and specific reasons which compelled him or her to deviate

from the guideline ranges.       When evaluating a claim of this type, it is

necessary to remember that the sentencing guidelines are advisory only.”).

     In the words of the trial court,

           according to the presentence report[, appellant] has
           20 arrests with 12 convictions resulting in six prior
           commitments. He also has revocation of probation
           and parole, a total of four violations with two
           revocations. The Probation Department report lists
           his prior convictions. We also had a Court History.

           [Appellant’s] entire life is drugs and guns with an
           occasional theft or drunk driving thrown in. So it
           would be fair to say that the prior record score
           understates the seriousness of his criminal history.

Notes of testimony, 4/15/16 at 8.

     After carefully reviewing the record, we conclude that it supports

counsel’s assessment that the appeal is frivolous and that the trial court

properly exercised its discretion when it imposed sentence.

     Moreover, our independent review of the entire record reveals no

additional non-frivolous claims.    Therefore, we grant counsel’s petition to

withdraw, and we affirm the judgment of sentence.



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     Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 9/23/19




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