J-S76040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

SALVATORE ABBRUZZESE

                            Appellant                   No. 3566 EDA 2015


           Appeal from the Judgment of Sentence October 22, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0001377-2014


BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                       FILED OCTOBER 11, 2016


       Appellant Salvatore Abbruzzese appeals the judgment of sentence

entered in the Court of Common Pleas of Philadelphia County on October 22,

2015, following his non-negotiated guilty plea to one count each of stalking,

contempt for violation of a protection from abuse (PFA) order, terroristic

threats, and harassment.1           In addition, counsel has filed a petition to

withdraw from representation and a brief pursuant to Anders v. California,

386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.



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*
 Former Justice specially assigned to the Superior Court.
1
  18 Pa.C.S.A. § 2709.1(a)(1), 23 Pa.C.S.A. § 6114(a), 18 Pa.C.S.A.§
2706(a)(1) and 18 Pa.C.S.A. § 2709(a)(4), respectively.
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2009).     We grant counsel's petition to withdraw and affirm Appellant’s

judgment of sentence.

       On April 7, 2015, Appellant pled guilty to the aforementioned charges,

and the trial court deferred sentencing to allow for the completion of a pre-

sentence investigation (PSI) report and a mental health evaluation.              On

October 22, 2015, Appellant was sentenced to an aggregate term of eleven

and one-half months to twenty-three months in prison to be followed by

eight years of probation.2      Appellant did not file a post-sentence motion.

       Appellant filed his notice of appeal on November 23, 2015,3 and

following the trial court’s directive to file a statement of errors complained of

on appeal, Appellant asserted the following claim:

             Was not [A]ppellant’s guilty plea in this matter invalid as
       the [c]ourt conducted a minimal on-the-record colloquy, failing
       to ascertain that [A]ppellant’s plea was voluntary and that he
       was both aware of and understood his rights and the
       consequences of pleading guilty; specifically, the [c]ourt failed to
       advise [A]ppellant that he had the right to a jury trial?

Statement of Matters Complained of on Appeal, filed 12/15/15, at ¶ 3.



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2
  Specifically, Appellant received eleven and one-half months to twenty-
three months’ incarceration with immediate parole to be followed by five
years of mental health probation with domestic violence conditions on the
stalking charge and three years of probation to run consecutively thereto on
the terroristic threats charge.    He received no further penalty on the
remaining charges.
3
  Appellant’s appeal was filed timely as the thirtieth day in which to file the
same fell on Saturday, November 21, 2015.



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        On April 18, 2016, current counsel filed a petition to withdraw and an

accompanying Anders brief with this Court contending that following her

conscientious examination of the record, the controlling caselaw, and any

applicable statutes she has determined there are no non-frivolous issues to

be reviewed and that an appeal would be wholly frivolous. Counsel notified

Appellant of her request to withdraw, furnished him with a copy of the

Anders brief, and advised him of his right to retain new counsel, proceed

pro se or raise any additional issues he may wish this Court to consider.4

Counsel attached a copy of this correspondence to her petition to withdraw.

         In the Anders brief, counsel presents the following statement of the

questions presented:

        1.    Was the guilty plea in this matter made knowingly and
        voluntarily?

        2.    Was the sentence of 11 ½ to 23 months[’] incarceration
        followed by 8 years[’] reporting probation imposed by the lower
        court illegal or excessive?

Anders brief at 3.

        As we do not address the merits of issues raised on appeal without

first reviewing a request to withdraw, we review counsel's petition to

withdraw at the outset. Commonwealth v. Cartrette, 83 A.3d 1030, 1032

(Pa.Super. 2013) (en banc). The procedural requirements for withdrawal

require counsel to: 1) petition for leave to withdraw and state that, after
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4
    Appellant has not responded to the petition to withdraw as counsel.



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making a conscientious examination of the record, counsel has concluded

that the appeal is frivolous; 2) provide a copy of the Anders brief to the

defendant; and 3) inform the defendant that he has the right to retain

private counsel or raise, pro se, additional arguments that the defendant

deems worthy of the court's attention. Id.

        Counsel's petition to withdraw indicates that she made a careful review

of the record and concluded that there are no non-frivolous issues. Counsel

notified Appellant she was seeking to withdraw and furnished him with

copies of both the petition to withdraw and the Anders brief. Additionally,

counsel informed Appellant of his right to retain new counsel or proceed pro

se to raise any issues he believes this Court should consider. Thus, counsel

has satisfied the procedural requirements of Anders.

        In light of counsel’s having complied with the procedural dictates of

Anders, we next consider whether counsel's Anders brief meets the

substantive requirements of Santiago. Under Santiago, an Anders 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, supra at 361.


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      Counsel provided a detailed procedural and factual history of this case

with citations to the record, explained her reasons for determining that

Appellant's appeal is frivolous, and included statutory authority to support

her finding there are no non-frivolous issues; therefore, counsel has

complied with the requirements of Anders/Santiago. Accordingly, we

proceed to a consideration of the issues of arguable merit counsel presents

in her Anders brief concerning the voluntariness of Appellant’s guilty plea

and the legality and discretionary aspects of Appellant’s sentence to make

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

frivolous.   Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 184

(Pa.Super. 2016).

      Appellant initially contends he did not enter into his plea knowingly or

voluntarily. When a defendant enters a guilty plea, he waives his right to

challenge on direct appeal all non-jurisdictional defects except the legality of

his sentence and the validity of his plea. Commonwealth v. Pantalion,

957 A.2d 1267, 1271 (Pa.Super. 2008). Notwithstanding, a defendant

challenging the validity of a guilty plea on direct appeal must object during

the plea colloquy or file a motition to withdraw the plea within ten days of

sentencing, and his failure to do so results in waiver.            Pa.R.Crim.P.

720(A)(1), (B)(1)(a)(i); Commonwealth v. Lincoln, 72 A.3d 606, 610




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(Pa.Super. 2013). Appellant has done neither; therefore, he has waived this

claim.5

       Appellant next challenges the legality of his sentence. While Appellant

did not assert this claim in a timely post-sentence motion or in his statement

of matters complained of on appeal, as long as this Court has jurisdiction

over the matter, a legality of sentencing issue is reviewable and cannot be

waived. Commonwealth v. Jones, 932 A.2d 179, 182 (Pa.Super. 2007).

However, the trial court had the benefit of a PSI and imposed a sentence

well within the legal limits. Appellant was sentenced to eleven and one half

months to twenty-three months in prison to be followed by five years’
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5
  Even had Appellant properly preserved this issue for our review, the record
reveals there was a factual basis for Appellant’s plea. N.T. Guilty Plea,
4/7/15, at 6 (explaining Appellant violated a valid PFA order by repeatedly
calling the victim and leaving her voicemails comprised of threatening
language).      Moreover, both Appellant’s written and oral colloquies
demonstrate that his guilty plea was entered knowingly, intelligently and
voluntarily. Id. at 3-6. Specifically, Appellant stated he can read, write, and
understand English. Id. at 4. While he explained he takes medication for
bipolar disorder, he indicated that medication does not interfere with his
ability to comprehend the proceedings. Id. Appellant identified his four-
page, written guilty plea colloquy form and acknowledged he had reviewed it
with counsel and understood its contents. Id. at 4-5. He also was aware
that by pleading guilty he was giving up his absolute right to a trial and was
informed he could receive a maximum prison sentence of fourteen years and
a maximum fine of $30,000.00. Id. at 5; Written Guilty Plea Colloquy,
4/7/15. See also Commonwealth v. Reid, 117 A.3d 777, 783 (Pa.Super.
2015). (law does not require that defendant be pleased with outcome of
decision to enter guilty plea, but just that decision was knowingly,
voluntarily and intelligently made). In light of the foregoing, we would find
no merit to Appellant’s claim he did not enter his plea knowingly and
intelligently.




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probation on the stalking charge which was a felony of the third degree

whose statutory maximum sentence was seven years in prison.         Appellant

further received a consecutive probationary sentence on the terroristic

threats charge, which as a misdemeanor of the first degree carried a

statutory maximum of five years’ incarceration.      Appellant’s prior record

score was a four and the offense gravity score on the stalking charge was a

six. N.T. Sentencing, 10/22/15, at 4. The trial court’s sentence fell within

the mitigated range of the Sentencing Guidelines, and the court granted

Appellant immediate parole.

     To the extent Appellant purports the discretionary aspects of his

sentence, we note that:

     Challenges to the discretionary aspects of sentencing do not
     entitle an appellant to review as of right. An appellant
     challenging the discretionary aspects of his sentence must
     invoke this Court's jurisdiction by satisfying a four-part test: We
     conduct a four-part analysis to determine: (1) whether appellant
     has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903;
     (2) whether the issue was properly preserved at sentencing or in
     a motion to reconsider and modify sentence, see Pa.R.Crim.P.
     720; (3) whether appellant's brief has a fatal defect, Pa.R.A.P.
     2119(f); and (4) whether there is a substantial question that the
     sentence appealed from is not appropriate under the Sentencing
     Code, 42 Pa.C.S.A. § 9781(b). Objections to the discretionary
     aspects of a sentence are generally waived if they are not raised
     at the sentencing hearing or in a motion to modify the sentence
     imposed.

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.Super. 2013) (citations

omitted).




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       Appellant failed to raise a challenge to the discretionary aspects of his

sentence either in an oral motion at sentencing or in a post-sentence

motion. In addition, Appellant did not include this claim in his statement of

matters complained of on appeal. As such, this challenge is waived as well.

See Griffin, supra; Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306

(1998) (any issues not raised in a Pa.R.A.P. 1925(b) statement will be

deemed waived).6

       Consequently, after an independent review of this appeal, we find

Appellant's issues to be frivolous, and we grant counsel's petition to

withdraw.

       Petition to Withdraw Granted. Judgment of Sentence Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/11/2016




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6
  Even if he properly had preserved a challenge to the discretionary aspects
of his sentence, for the reasons set forth supra, it would be meritless.




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