J-S33044-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
               v.                          :
                                           :
                                           :
 PATRICK THOMAS OTTO JR.,                  :
                                           :
                     Appellant             :   No. 5 EDA 2018

         Appeal from the Judgment of Sentence November 16, 2017
   In the Court of Common Pleas of Delaware County Criminal Division at
                      No(s): CP-23-CR-0006607-2017


BEFORE:     OTT, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                         FILED JUNE 26, 2018

     Appellant, Patrick Thomas Otto, Jr., appeals from the judgment of

sentence entered in the Court of Common Pleas of Delaware County following

his negotiated guilty plea to the charge of retail theft, 18 Pa.C.S.A. §

3939(a)(1).     On appeal, he challenges the discretionary aspects of his

sentence.     Additionally, Appellant’s counsel has filed a petition seeking to

withdraw his representation, as well as a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 602 Pa.

159, 978 A.2d 349 (2009) (hereinafter “Anders brief”). After a careful review,

we grant counsel’s petition to withdraw and affirm Appellant’s judgment of

sentence.

     The relevant facts and procedural history are as follows: Appellant was

arrested in connection with a retail theft at a Target store, and on November


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* Former Justice specially assigned to the Superior Court.
J-S33044-18


16, 2017, represented by counsel, he entered a negotiated guilty plea to one

count of retail theft. Relevantly, the Commonwealth indicated the following

with regard to the plea:

      Your Honor, this is going to be a negotiated guilty plea to Count
      1, Retail Theft, a misdemeanor of the first degree.           The
      recommended sentence is time served to 23 months. Time served
      is from 10/23/17 to 11/16/17. [Appellant] will complete 48 hours
      of community service. He’ll undergo a drug and alcohol evaluation
      and comply with any and all recommendations, and that must be
      completed within ten days of his release from Delaware County
      Prison and he must stay away from the Target store located. . .in
      Springfield, PA[.]

N.T., 11/16/17, at 4-5.

      Appellant confirmed that he accepted the agreement as set forth by the

Commonwealth. Id. at 5. At the conclusion of the guilty plea hearing, the

trial court indicated it accepted the parties’ negotiated guilty plea, and it

sentenced Appellant in accordance therewith. Id. at 7.

      Thereafter, despite being provided with his post-sentence rights,

Appellant filed no post-sentence motions. However, on December 13, 2017,

Appellant filed a timely, counseled notice of appeal to this Court. The trial

court directed Appellant to file a Pa.R.A.P. 1925(b) statement, and in

response, counsel filed a statement pursuant to Pa.R.A.P. 1925(c)(4)

indicating his intent to file an Anders brief on appeal. The trial court filed a

brief Pa.R.A.P. 1925(a) opinion explaining Appellant waived his right to

withdraw his guilty plea or challenge the discretionary aspects of his sentence.

On April 11, 2018, Appellant’s counsel filed in this Court a petition to withdraw




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his representation, as well as a brief pursuant to Anders. Appellant filed no

further submissions either pro se or through privately-retained counsel.

     Prior to addressing any issue raised on appeal, we must first resolve

counsel’s petition to withdraw. Commonwealth v. Goodwin, 928 A.2d 287,

290 (Pa.Super. 2007) (en banc). See also Commonwealth v. Rojas, 874

A.2d 638, 639 (Pa.Super. 2005) (citation omitted) (stating “[w]hen 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”). There

are procedural and briefing requirements imposed upon an attorney who

seeks to withdraw on appeal pursuant to which counsel must:

     1) petition the court for leave to withdraw stating that, after
     making a conscientious examination of the record, counsel has
     determined that the appeal would be frivolous; 2) furnish a copy
     of the brief to the defendant; and 3) advise the defendant that he
     or she has the right to retain private counsel or raise additional
     arguments that the defendant deems worthy of the court’s
     attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en

banc) (citation omitted). In addition, our Supreme Court in Santiago stated

that 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.



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Santiago, 602 Pa. at 178-79, 978 A.2d at 361. Counsel also must provide

the appellant with a copy of the Anders brief, together with a letter that

advises the appellant of his or her 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.” Commonwealth v. Nischan, 928 A.2d 349,

353 (Pa.Super. 2007) (citation omitted). Substantial compliance with these

requirements is sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290

(Pa.Super. 2007).

       Herein, counsel contemporaneously filed his petition to withdraw as

counsel and Anders brief. In his petition, counsel states that after a thorough

and conscientious examination of the record he has determined that an appeal

herein is wholly frivolous. Additionally, in accordance with Nischan, counsel

has mailed Appellant a copy of the Anders brief and a letter informing him

that: (1) he has the right to retain new counsel; (2) he may proceed further

with his case pro se; and (3) he may raise any points that he deems worthy

of the this Court’s attention. Counsel attached his conforming correspondence

to his petition to withdraw. See Commonwealth v. Millisock, 873 A.2d 748

(Pa.Super. 2005).1

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1 Appellant’s counsel advised this Court that he has two addresses listed in his
file for Appellant: one in Drexel Hill, PA, and one in Philadelphia, PA. The
Philadelphia, PA address is the address Appellant also provided to the trial



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       In the Anders brief, counsel provides a summary of the facts and

procedural history of the case with citations to the record, refers to evidence

of record that might arguably support the issue raised on appeal challenging

the discretionary aspects of the sentence, provides citations to relevant case

law, and states his reasoning and conclusion that the appeal is wholly

frivolous. Accordingly, counsel has substantially complied with all of the

technical requirements of Anders and Santiago. Therefore, we first proceed

to examine the issue counsel identified in the Anders brief and then conduct

“a full examination of all the proceedings, to decide whether the case is wholly


____________________________________________


court, and in fact, various documents filed in the trial court contain the
Philadelphia, PA address and bear Appellant’s signature. Out of an abundance
of caution, Appellant’s counsel mailed to both addresses a copy of his petition
to withdraw, Anders brief, and letter advising Appellant of his rights pursuant
to Nischan. However, with regard to both service attempts, the Post Office
returned the documents to counsel. Specifically, with regard to the Drexel
Hill, PA address, the Post Office returned the documents as undeliverable.
With regard to the Philadelphia, PA address, the Post Office returned the
documents as “Attempted-Not Known Unable to Forward.”
       Counsel has advised this Court that Appellant has not provided him with
any other address, and consequently, he cannot be sure that Appellant has
received notice of the Anders documents. Although the record reveals
Appellant knew he had a direct appeal pending in the instant case, our review
of the trial court’s docket entries, as well as this Court’s docket entries, reveals
Appellant has neither contacted nor provided the courts with his new address.
Consequently, given the circumstances of this case, we conclude counsel’s
efforts to serve Appellant with the appropriate documents constitutes
substantial compliance with the Anders requirements. See Commonwealth
v. O’Malley, 957 A.2d 1265 (Pa.Super. 2008) (indicating that substantial
compliance with the requirements to withdraw may satisfy the Anders
criteria).




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frivolous.” Commonwealth v. Yorgey, 2018 WL 2346441, at *4 (Pa.Super.

filed 5/24/18) (en banc) (quotation omitted).2

       In the Anders brief, Appellant’s counsel raised a challenge to the

discretionary aspects of Appellant’s sentence.      Specifically, he questioned

whether “a maximum sentence of 23 months incarceration is harsh and

excessive under the circumstances.” Counsel’s Anders brief at 4.

       Initially, we consider whether Appellant has waived his challenge to the

discretionary aspect of his sentence. In Commonwealth v. Lincoln, 72 A.3d

606 (Pa.Super. 2013), this Court opined: “Settled Pennsylvania law makes

clear that by entering a guilty plea, the defendant waives his right to challenge

on direct appeal all nonjurisdictional defects except the legality of the sentence

and the validity of the plea.” Id. at 609 (citation omitted). “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.” Commonwealth v. Reichle, 589



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2In Yorgey, an en banc panel of this Court relevantly held:
     [W]e must give Anders a most generous reading and review ‘the
     case’ as presented in the entire record with consideration first of
     issues raised by counsel. . . .[T]his review does not require this
     Court to act as counsel or otherwise advocate on behalf of a party.
     Rather, it requires us only to conduct a review of the record to
     ascertain if on its face, there are non-frivolous issues that counsel,
     intentionally or not, missed or misstated. We need not analyze
     those issues of arguable merit; just identify them, deny the
     motion to withdraw, and order counsel to analyze them.
Yorgey, 2018 WL 2346441, at *4 (citation omitted).

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A.2d 1140, 1141 (Pa.Super. 1991). See Commonwealth v. Brown, 982

A.2d 1017, 1019 (Pa.Super. 2009) (“[W]here a defendant pleads guilty

pursuant to a plea agreement specifying particular penalties, the defendant

may not seek a discretionary appeal relating to those agreed-upon penalties.

Permitting a defendant to petition for such an appeal would undermine the

integrity of the plea negotiation process and could ultimately deprive the

Commonwealth of sentencing particulars for which it bargained.”) (citations

omitted)).

       Here, the plea agreement entered into between Appellant and the

Commonwealth specified the particulars of Appellant’s sentence, including the

maximum sentence of 23 months, which Appellant now challenges as being

excessive.     The trial court accepted the plea and Appellant received the

negotiated sentence in its entirety.           Therefore, Appellant has waived his

discretionary aspects of sentencing claim.3 Commonwealth v. Heaster, 171

A.3d 268, 271 (Pa.Super. 2017) (“[W]here a defendant enters into a

negotiated plea agreement that includes the terms of the sentence, the

defendant may not seek a discretionary appeal relating to those agreed-upon

terms.”) (citation omitted)).




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3 Further, we note that Appellant did not seek to withdraw his guilty plea or
challenge the discretionary aspects of his sentence in the trial court. See
Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i).

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     “Furthermore, after conducting a full examination of all the proceedings

as required pursuant to Anders, we discern no non-frivolous issues to be

raised on appeal.”   Yorgey, 2018 WL 2346441, at *6.        Thus, we grant

counsel’s petition to withdraw and affirm Appellant’s judgment of sentence.

     Petition to Withdraw granted. Judgment of Sentenced affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/18




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