J-S03013-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                            IN THE SUPERIOR COURT OF
                                                               PENNSYLVANIA
                             Appellee

                       v.

ETHAN B. WADLINGTON,

                             Appellant                         No. 2239 EDA 2017


         Appeal from the Judgment of Sentence Entered June 13, 2017
                In the Court of Common Pleas of Bucks County
                          Criminal Division at No(s):
                           CP-09-CR-0002568-2016
                           CP-09-CR-0003050-2016


BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                                  FILED APRIL 16, 2018

        Appellant, Ethan B. Wadlington, appeals from the judgment of

sentence of 4½-10 years’ incarceration, with a concurrent term of 10 years’

probation,    imposed       following    his   guilty   plea   to   possession   of   drug

paraphernalia (Paraphernalia),1 and multiple counts of possession with intent

to deliver (PWID).2 Appellant seeks to challenge the discretionary aspects of

his sentence. Additionally, Appellant’s counsel, Stuart Wilder, Esq., seeks to

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

____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   35 P.S. § 780-113(a)(32).

2   35 P.S. § 780-113(a)(30).
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386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009).     After careful review, we affirm and grant counsel’s petition to

withdraw.

        The facts of the underlying crimes at CP-09-CR-0002568-2016 (case

2568) and CP-09-CR-0003050-2016 (case 3050) are not necessary to the

disposition of this appeal. The relevant portions of the procedural history of

this case are as follows.

        On September 13, 2016, Appellant pled guilty, at both docket

numbers, to three counts of PWID, and one count of Paraphernalia.              The

same day, the trial court sentenced Appellant to an aggregate term of 5-10

years’ incarceration and a concurrent term of 10 years’ probation. Appellant

filed a timely, counseled post-sentence motion seeking reconsideration of his

sentence on September 19, 2016.                Nevertheless, Appellant subsequently

filed a series of pro se motions while still represented by his plea counsel.

On September 23, 2016, he filed a pro se Post Conviction Relief Act3

(“PCRA”) petition.      On October 3, 2016, Appellant filed a pro se notice of

appeal from the September 13, 2016 judgment of sentence.               That appeal

was docketed at 158 EDA 2017.             On December 2, 2016, he filed a pro se

post-sentence motion.




____________________________________________


3   See 42 Pa.C.S. § 9541 et seq.



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        During this time, the trial court appointed current counsel to represent

Appellant.4 The trial court ultimately denied the counseled, September 19,

2016 post-sentence motion on January 23, 2017. On January 24, 2017, the

trial court denied Appellant’s PCRA petition for want of jurisdiction. Attorney

Wilder then filed a timely notice of appeal on Appellant’s behalf from the

judgment of sentence, which had become final on January 23, 2017, with

the denial of the counseled, post-sentence motion.            That appeal was

docketed at 659 EDA 2017.

        Appellant filed an application to consolidate his appeals at 158 EDA

2017 and 659 EDA 2017 on March 17, 2017.              Appellant’s Application to

Consolidate, 3/17/17, at 2.            Therein, in addition to the request for

consolidation, Appellant noted that the trial court had failed at sentencing to

assess his eligibility for the Recidivism Risk Reduction Incentive (“RRRI”)

program,5 and that the Commonwealth consented on that basis to a remand

for resentencing.      Id.; see also Commonwealth’s Answer to Appellant’s

Application to Consolidate, 3/31/17, at 1.        On April 5, 2017, this Court

issued an order directing the trial court to show cause why the case should

not be remanded for resentencing. Following the trial court’s response, this
____________________________________________


4 This appeared to have been in response to Appellant’s dissatisfaction with
his plea counsel, as reflected in his numerous pro se filings. It also appears
that current counsel was appointed to handle Appellant’s untimely PCRA
petition, but that matter is not the subject of the instant appeal.

5   See 61 Pa.C.S. § 4501 et seq.



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Court vacated Appellant’s sentence and remanded for resentencing.        See

Order, 4/21/17, at 1.

     The trial court resentenced Appellant at a hearing held on June 13,

2017, to a term of 4½-10 years’ incarceration at case 2568, and to a

concurrent term of 10 years’ probation at case 3050. Appellant did not file a

post-sentence motion. However, on July 7, 2017, Appellant filed a timely,

consolidated notice of appeal from his new sentence.       Appellant filed a

Pa.R.A.P. 1925(c)(4) statement on the same day, indicating counsel’s intent

to file an Anders brief. The trial court issued its Rule 1925(a) opinion on

August 10, 2017. In counsel’s Anders brief, he lists the following questions

for our review:

        A. Should Appellant’s counsel be permitted to withdraw his
           appearance because the appeal is wholly frivolous?

        B. Was [Appellant]’s sentence unreasonably harsh?

Anders Brief at 3.

     As noted, Attorney Wilder has filed with this Court a petition to

withdraw and an Anders brief, asserting that the sentencing issue Appellant

seeks to raise is frivolous. Id. at 11-12. Counsel also acknowledges that he

has found no other issues that may be raised on appeal.       See Counsel’s

Application to Withdraw at 2.

     This Court must first pass upon counsel's petition to withdraw
     before reviewing the merits of the underlying issues presented
     by [the appellant]. Commonwealth v. Goodwin, 928 A.2d
     287, 290 (Pa. Super. 2007) (en banc).



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     Prior to withdrawing as counsel on a direct appeal under
     Anders, counsel must file a brief that meets the requirements
     established by our Supreme Court in Santiago. The 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, 978 A.2d at 361. Counsel also must provide a copy of
     the Anders brief to his client. 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.” Commonwealth v. Nischan, 928 A.2d 349,
     353 (Pa. Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40
     (2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014).

After determining that counsel has satisfied these technical requirements of

Anders and Santiago, this Court must then “conduct an independent

review of the record to discern if there are any additional, non-frivolous

issues overlooked by counsel.”    Commonwealth v. Flowers, 113 A.3d

1246, 1250 (Pa. Super. 2015) (citations and footnote omitted).

     In this case, Attorney Wilder’s Anders brief complies with the above-

stated requirements. Namely, he includes a summary of the relevant factual

and procedural history with citations to the record, he refers to portions of



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the record that could arguably support Appellant’s claim, and he sets forth

his conclusion that the issue and Appellant’s appeal are frivolous. He also

explains his reasons for reaching that determination, and supports his

rationale with citation to the record and pertinent legal authority. Attorney

Wilder also states in his petition to withdraw that he has supplied Appellant

with a copy of his Anders brief, and he attaches a letter directed to

Appellant in which he informs him of the rights enumerated in Nischan.

Accordingly,     counsel     has    sufficiently   complied   with   the   technical

requirements for withdrawal. We will now independently review the record

to determine if Appellant’s issue is frivolous, and to ascertain if there are any

other, non-frivolous issues Appellant could pursue on appeal.

       Appellant’s issue challenges the discretionary aspects of his sentence.

Essentially, he argues that the term of incarceration imposed is unduly harsh

and excessive.       However, Appellant did not file a post-sentence motion

raising this discretionary aspect of sentencing claim.6         Consequently, this
____________________________________________


6 Attorney Wilder, who represented Appellant at his resentencing hearing,
indicates that he

       fulfilled his obligation to consult before and after sentencing
       about post-sentence motions and an appeal with … Appellant
       pursuant to Commonwealth v. Rosado, 150 A.3d 425, 430-31
       (Pa. 2017), and received no instructions to file a motion for
       reconsideration. However, such instructions, postmarked June
       19, 2017, were received by the undersigned on June 26, 2017,
       too late to file a motion for reconsideration of sentence. Since …
       Appellant also desired an appeal, that was timely lodged.

(Footnote Continued Next Page)


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issue is waived. See Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa.

Super. 2004) (“Issues challenging the discretionary aspects of sentence

must be raised in a post-sentence motion or by presenting the claim to the

trial court during the sentencing proceedings.”).

      Accordingly, we agree with Attorney Wilder that the issue Appellant

seeks to assert on appeal is frivolous, and our independent review of the

record does not reveal any other, non-frivolous issue(s) he could present on

Appellant’s behalf. Therefore, we grant counsel’s petition to withdraw.

      Judgment of sentence affirmed. Petition to withdraw granted.

      Judge Panella joins this memorandum.

      President Judge Emeritus Stevens concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/16/18




(Footnote Continued) _______________________

Anders Brief at 6-7.



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