J-S66009-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                        Appellee

                   v.

RAYMOND NAVARO BOWMAN,

                        Appellant                       No. 577 MDA 2014


       Appeal from the Judgment of Sentence Entered March 3, 2014
            In the Court of Common Pleas of Lancaster County
           Criminal Division at No(s): CP-36-CR-0004042-2011


BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                         FILED OCTOBER 22, 2014

      Appellant, Raymond Navaro Bowman, appeals from the judgment of

sentence of an aggregate term of five to ten years’ incarceration, imposed

after he pled guilty to possession with intent to deliver, possession of drug

paraphernalia, and two counts of person not to possess a firearm. Appellant

essentially seeks to argue on appeal that his plea counsel provided him with

incorrect information and deceived him into pleading guilty.       Additionally,

Appellant’s current counsel, Christopher P. Lyden, Esq., seeks permission to

withdraw his representation of Appellant pursuant to Anders v. California,

386   U.S.   738   (1967),   as     elucidated   by    our   Supreme   Court   in

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

in Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).              After careful
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review, we affirm Appellant’s judgment of sentence and grant counsel’s

petition to withdraw.

       Appellant entered a negotiated guilty plea to the above stated offenses

on March 3, 2014.1           He was sentenced in accordance with his plea

agreement to an aggregate term of five to ten years’ incarceration.

Appellant did not file a post-sentence motion. On March 6, 2014, Appellant

filed a pro se “Motion to Appeal Guilty Plea.”    Therein, he stated that he

wished to appeal because (1) his plea counsel “deceived him” during the

plea process, (2) counsel failed to help “him form a more solid decision”

regarding whether to plead guilty, (3) Appellant “was not given information

that could have [aided] him if in fact he chose to go forward with a trial[,]”

(4) Appellant was not provided with “sound counsel,” and (5) his plea

counsel “played on [Appellant’s] ignorance [in] the law and misinformed him

about search warrants and how they are to be applied and carried out.”

Motion to Appeal, 3/6/14, at 1-2 (unnumbered).          Attorney Lyden was

thereafter appointed to represent Appellant and he filed a timely notice of

appeal on March 26, 2014.2 However, Attorney Lyden subsequently filed a
____________________________________________


1
  At the same time, Appellant pled guilty to possession with intent to deliver
and possession of drug paraphernalia in an unrelated case, docketed at 4437
of 2012.     He was sentenced in that case to an aggregate term of
incarceration of two to four years, which was imposed to run concurrently
with the sentence imposed in the instant case, docketed at 4042 of 2011.
2
 Attorney Lyden only filed a notice of appeal in the case docketed at 4042 of
2011, not in the case docketed at 4437 of 2012.



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petition to withdraw and Anders brief with this Court, claiming that an

appeal on Appellant’s behalf is utterly frivolous.

      “When faced with a purported Anders brief, this Court may not review

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

withdraw.”      Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super.

2005) (quoting Commonwealth v. Smith, 700 A.2d 1301, 1303 (Pa.

Super. 1997)). In Santiago, our Supreme Court altered the requirements

for   counsel     to   withdraw   under     Anders.     Thus,    pursuant   to

Anders/Santiago, in order to withdraw from an appeal, counsel now 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.

Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super. 2010) (citing

Santiago, 978 A.2d at 361).       “Counsel also must provide a copy of the

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

(Pa. Super. 2014).

      Attending the brief must be a letter that advises the client of his
      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.”

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      Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super.
      2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).

Orellana, 86 A.3d at 880. Once we are satisfied that counsel has met these

technical requirements, this Court must then conduct its own review of the

record and independently determine whether the appeal is, in fact, wholly

frivolous. See Daniels, 999 A.2d at 594.

      Instantly, Attorney Lyden’s Anders brief substantially complies with

the above-stated requirements for withdrawal.          While Attorney Lyden

provides few citations to the record or pertinent legal authority, he does

provide an adequate summary of the procedural history of Appellant’s case

and a brief discussion of the issues raised in Appellant’s pro se “Motion to

Appeal Guilty Plea.” Ultimately, Attorney Lyden concludes that Appellant’s

issues, and any other claims regarding the validity of his guilty plea, must be

framed as ineffective assistance of counsel claims and raised on collateral

review pursuant to Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002).

Accordingly, Attorney Lyden asserts that a direct appeal on Appellant’s

behalf is frivolous. Additionally, Attorney Lyden attached to his petition to

withdraw a copy of a letter he sent to Appellant advising him that he has the

right to retain new counsel, proceed pro se, and/or raise any issues he

deems worthy of this Court’s examination.           Because Attorney Lyden

substantially complied with the requirements for withdrawal, we will now

independently review Appellant’s claims, and also determine whether there

are any other issues he could arguably present on appeal.       See Daniels,

999 A.2d at 594.

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        Initially, we agree with Attorney Lyden that the arguments Appellant

raised in his pro se “Motion to Appeal Guilty Plea” are properly construed as

challenges to the adequacy of his plea counsel’s representation. Recently, in

Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), our Supreme Court

reaffirmed its prior holding in Grant that, absent certain circumstances,

claims of ineffective assistance of counsel should be deferred until collateral

review under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-

9546.     Holmes, 79 A.3d at 576.        While the Court did identify specific

circumstances under which ineffectiveness claims may be addressed on

direct appeal, such circumstances are not present in the instant case. See

id. at 577-78 (holding that the trial court may address claim(s) of

ineffectiveness where they are “both meritorious and apparent from the

record so that immediate consideration and relief is warranted,” or where

the appellant’s request for review of “prolix” ineffectiveness claims is

“accompanied by a knowing, voluntary, and express waiver of PCRA

review”). Accordingly, the claims Appellant raised in his pro se “Motion to

Appeal Guilty Plea” may only be presented in a PCRA petition after the

conclusion of this appeal.

        Additionally, our review of the guilty plea/sentencing transcript reveals

no other issues that Appellant could raise on direct appeal. Appellant’s plea

counsel did not object to the validity of Appellant’s plea during the oral




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colloquy or in a post-sentence motion.           Thus, Appellant has not preserved

any challenge to the validity of his plea for our review.3 Moreover, Appellant

entered a negotiated plea agreement, and the court imposed the agreed-

upon sentence.        Thus, Appellant has waived his right to challenge the

discretionary aspects of his sentence.         See Commonwealth v. Dalberto,

648 A.2d 16, 20 (Pa. Super. 1994) (citing Commonwealth v. Reichle, 589

A.2d 1140, 1141 (Pa. Super. 1991) (“Where the plea agreement contains a

negotiated sentence which is accepted and imposed by the sentencing court,

there is no authority to permit a challenge to the discretionary aspects of

that sentence.”)).     Finally, we ascertain nothing illegal about the sentence

Appellant received. Accordingly, we affirm Appellant’s judgment of sentence

and grant counsel’s petition to withdraw.




____________________________________________


3
  See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.”); Commonwealth Lincoln,
72 A.3d 606, 610 (Pa. Super. 2013) (indicating challenges to the validity of
a guilty plea “must be raised by motion in the trial court in order to be
reviewed on direct appeal”) (quoting Commonwealth v. Rush, 959 A.2d
945, 949 (Pa. Super. 2008)).



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     Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/22/2014




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