J-S03028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

ERIC ELROD

                            Appellant                No. 1758 EDA 2014


             Appeal from the Judgment of Sentence May 16, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0000057-2011


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OTT, J.

MEMORANDUM BY PANELLA, J.                            FILED APRIL 07, 2015

        Appellant, Eric Elrod, appeals from the judgment of sentence entered

May 16, 2014, in the Court of Common Pleas of Philadelphia County.

Additionally, Elrod’s court-appointed counsel, Bobby Ochoa III, Esquire, has

filed an application to withdraw as counsel pursuant to Anders v.

California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009). After careful review, we affirm Elrod’s judgment of

sentence and grant counsel’s petition to withdraw.

        On February 12, 2014, Elrod entered a negotiated nolo contendere

plea to indecent assault of a person less than 13 years of age1 and



____________________________________________


1
    18 Pa.C.S.A. § 3126.
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corruption of minors.2 At the plea hearing, the Commonwealth set forth the

facts underlying the plea as follows.

        Your Honor, had this matter gone to trial the Commonwealth
        would have proven beyond a reasonable doubt that between the
        dates of October 1, 2009 and January of 2010 on diverse dates
        the defendant did place his hand on the private area of the
        complainant who is [S.C.T.] who was at the time ten years old.
        Her date of birth is September 26, ’99. That touching was over
        the clothing. … It occurred on at least three occasions.

Plea Hearing, 2/12/14 at 10.          Pursuant to the agreement, the trial court

sentenced Elrod to one and one-half to three years’ imprisonment for

corruption of minors.       Following a hearing, Elrod was determined to be a

sexually violent predator, and the trial court sentenced him to a consecutive

seven years’ probation for indecent assault. This timely appeal followed.

        Preliminarily, we note that Attorney Ochoa has requested to withdraw

and has submitted an Anders brief in support thereof contending that

Elrod’s appeal is frivolous. The Pennsylvania Supreme Court has articulated

the procedure to be followed when court-appointed counsel seeks to

withdraw from representing an appellant on direct appeal.

           [I]n the Anders brief that accompanies court-appointed
           counsel’s petition to withdraw, counsel 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 arguably believes 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
____________________________________________


2
    18 Pa.C.S.A. § 6301.



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           record, controlling case law, and/or statutes on point that
           have led to the conclusion that the appeal is frivolous.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

        We note that Attorney Ochoa has substantially complied with all of the

requirements of Anders as articulated in Santiago. Additionally, Attorney

Ochoa confirms that he sent a copy of the Anders brief as well as a letter

explaining to Elrod that he has the right to proceed pro se or the right to

retain new counsel.       A copy of the letter is appended to Attorney Ochoa’s

petition. See Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super.

2010); Commonwealth v. Millisock, 873 A.2d 748, 749 (Pa. Super.

2005).

        We now proceed to examine the issues counsel set forth in the Anders

brief.3 Elrod first contends that the trial court imposed an illegal sentence.

It is well-established that “[i]f no statutory authorization exists for a

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

Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa. Super. 2014)

(citation omitted). “An illegal sentence must be vacated.” Id. “Issues

relating to the legality of a sentence are questions of law[.] ... Our standard

of review over such questions is de novo and our scope of review is plenary.”

Id. (citation omitted).




____________________________________________


3
    Elrod has not filed a response to Attorney Ochoa’s petition to withdraw.



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      We find no indication that the trial court imposed an illegal sentence.

Elrod entered a nolo contendere plea to indecent assault, a felony of the

third degree and corruption of minors, a misdemeanor of the first degree.

See 18 Pa.C.S.A. §§ 3126(b)(3) and 6301(a)(1)(i), respectively.        A third-

degree felony carries a maximum term of imprisonment of seven years; a

first-degree misdemeanor carries a maximum term of imprisonment of five

years.    See 18 Pa.C.S.A. § 1103(3) and 18 Pa.C.S.A. § 1104(1),

respectively. As previously noted, the trial court sentenced Elrod to one and

one-half to three years’ imprisonment for corruption of minors a consecutive

term of seven years’ probation for indecent assault.       These sentences fall

squarely within the standard range and clearly do not exceed the statutory

maximum permitted for the crimes committed.         We therefore concur with

counsel’s assessment that a challenge to the legality of the sentence

imposed is indeed frivolous.

      Elrod next maintains that his negotiated nolo contendere was

involuntarily, unknowingly or unintelligently entered. A review of the record,

however, reveals that Elrod did not challenge his nolo contendere plea either

at sentencing or in a post-sentence motion. As such, we are constrained to

find that Elrod has waived this issue on appeal.          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 v. Tareila, 895 A.2d 1266,

1270 n.3 (Pa. Super. 2006) (“Where an appellant fails to challenge his guilty

plea in the trial court, he may not do so on appeal.”).

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      Finally, Elrod purports to challenge trial counsel’s effectiveness. Apart

from two limited exceptions not pertinent here, claims of ineffective

assistance   of   counsel   cannot    be   raised   on   direct   review.    See

Commonwealth v. Holmes, 79 A.3d 562, 563 (Pa. 2013).                 Accordingly,

Elrod cannot raise this claim on direct review; this issue of ineffectiveness of

trial counsel must await collateral review.

      After examining the issues contained in the Anders brief and after

undertaking our independent review of the record, we concur with counsel’s

assessment that the appeal is wholly frivolous.

      Judgment of sentence affirmed. Permission to withdraw as counsel is

granted. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/7/2015




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