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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

SEAN LONGBOTTOM

                            Appellant                  No. 23 EDA 2014


          Appeal from the Judgment of Sentence November 22, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0006930-2013


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.:                            FILED JUNE 17, 2015

        Appellant, Sean Longbottom, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his

negotiated guilty plea to possessing instruments of crime (“PIC”) and

terroristic threats. We affirm and grant counsel’s petition to withdraw.1

        The relevant facts and procedural history of this appeal are as follows.

On the afternoon of May 9, 2013, Richard Barr was washing his vehicle in

the driveway at 6611 Hegerman Street in Philadelphia. Appellant, a next-

door neighbor, appeared on his own porch and began to yell at Mr. Barr.

After yelling at Mr. Barr, Appellant briefly left the porch.   When Appellant

returned, he pointed a firearm at Mr. Barr and said, “I’m going to get you,
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1
    18 Pa.C.S.A. §§ 907, 2706, respectively.
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I’ve got something for you, this is the beginning.” (N.T. Plea and Sentencing

Hearing, 11/22/13, at 7). At the same time, Mr. Barr’s family dog entered

the driveway. Appellant saw the dog and said, “I got something for that dog

too.” (Id.)

        On November 22, 2013, Appellant executed a written guilty plea

colloquy.     That same day, Appellant pled guilty to PIC and terroristic

threats.2     In exchange, the Commonwealth recommended a time-served

sentence, followed by two (2) years of probation. The Commonwealth also

agreed to withdraw additional charges. Following an oral colloquy, the court

accepted Appellant’s plea.          Pursuant to the plea agreement, the court

immediately sentenced Appellant to time served to six (6) months’

imprisonment for terroristic threats.            For the PIC conviction, the court

imposed a consecutive term of two (2) years’ probation.             The court also

granted immediate parole. Appellant did not file post-sentence motions.

        Appellant timely filed a notice of appeal on Monday, December 23,

2013.     On May 8, 2014, the court ordered Appellant to file a concise

statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b).

On May 29, 2014, counsel filed a statement of intent to file a brief pursuant

to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493


____________________________________________


2
 The offenses of PIC and terroristic threats were graded as first degree
misdemeanors.



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(1967) and Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185

(1981).

      As a preliminary matter, appellate counsel seeks to withdraw his

representation pursuant to Anders and Commonwealth v. Santiago, 602

Pa. 159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: 1)

petition the Court for leave to withdraw, certifying that after a thorough

review of the record, counsel has concluded the issues to be raised are

wholly frivolous; 2) file a brief referring to anything in the record that might

arguably support the appeal; and 3) furnish a copy of the brief to the

appellant and advise him of his right to obtain new counsel or file a pro se

brief to raise any additional points the appellant deems worthy of review.

Santiago, supra at 173-79, 978 A.2d at 358-61.         Substantial compliance

with these requirements is sufficient.     Commonwealth v. Wrecks, 934

A.2d 1287, 1290 (Pa.Super. 2007). “After establishing that the antecedent

requirements have been met, this Court must then make an independent

evaluation of the record to determine whether the appeal is, in fact, wholly

frivolous.”   Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super.

2006) (quoting Commonwealth v. Townsend, 693 A.2d 980, 982

(Pa.Super. 1997)).

      In Santiago, supra, our Supreme Court addressed the briefing

requirements where court-appointed appellate counsel seeks to withdraw

representation:


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         Neither Anders nor McClendon requires that counsel’s
         brief provide an argument of any sort, let alone the type of
         argument that counsel develops in a merits brief. To
         repeat, what the brief must provide under Anders are
         references to anything in the record that might arguably
         support the appeal.

                                  *    *    *

         Under Anders, the right to counsel is vindicated by
         counsel’s examination and assessment of the record and
         counsel’s references to anything in the record that
         arguably supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

         [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 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.

Id. at 178-79, 978 A.2d at 361.

      Instantly, appellate counsel filed a petition for leave to withdraw. The

petition states counsel performed a conscientious examination of the record

and determined the appeal would be wholly frivolous. Counsel also supplied

Appellant with a copy of the withdrawal petition, the brief, and a letter

explaining Appellant’s right to proceed pro se or with new privately retained

counsel to raise any additional points Appellant deems worthy of this Court’s

consideration. In his Anders brief, counsel provides a summary of the facts

and procedural history of the case. Counsel refers to facts in the record that

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might arguably support the issues raised on appeal and offers citations to

relevant law. The brief also provides counsel’s conclusion that the appeal is

wholly frivolous.      Thus, counsel has substantially complied with the

requirements of Anders and Santiago.

      As Appellant has filed neither a pro se brief nor a counseled brief with

new privately retained counsel, we review this appeal on the basis of the

issues raised in the Anders brief:

         WAS [APPELLANT’S] GUILTY PLEA VALID?

         WAS [APPELLANT] COMPETENT TO ENTER A PLEA IN THAT
         HE HAD NOT TAKEN HIS REQUIRED DOSAGE OF
         MEDICATION PRIOR TO ENTRY OF THE PLEA?

         WAS THE SENTENCE IMPOSED BY THE COURT VALID IN
         LIGHT OF THE FACT THAT [APPELLANT] WAS NOT
         AFFORDED ALLOCUTION PRIOR TO SENTENCING?

         WAS [APPELLANT’S] SENTENCE LEGAL?

(Anders Brief at 3).

      In his first and second issues, Appellant baldly asserts he did not enter

a valid guilty plea. Further, Appellant claims he was under a psychiatrist’s

care at the time of the plea hearing, and he failed to take his last two doses

of prescription medication before entering the plea.      Appellant, however,

failed to preserve these claims by objecting during the plea colloquy or filing

a post-sentence motion to withdraw the plea.        See Commonwealth v.

Lincoln, 72 A.3d 606 (Pa.Super. 2013), appeal denied, ___ Pa. ___, 87

A.3d 319 (2014) (explaining defendant wishing to challenge voluntariness of


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guilty plea on direct appeal must either object during plea colloquy or file

motion to withdraw plea within ten days of sentencing; failure to employ

either measure results in waiver).             Moreover, Appellant cites nothing to

demonstrate how the absence of medication rendered him incompetent to

enter his plea.3 See Commonwealth v. Prendes, 97 A.3d 337 (Pa.Super.

2014), appeal denied, ___ Pa. ___, 105 A.3d 736 (2014) (stating

Pennsylvania law presumes defendant who entered guilty plea was aware of

what he was doing, and defendant bears burden of proving otherwise).

Therefore, Appellant’s first two issues are waived.

       In his third issue, Appellant argues the court denied his right to

allocution prior to the imposition of sentence. Significantly, “a denial of the

right of allocution does not create a non-waivable challenge to the legality of

the sentence.” Commonwealth v. Jacobs, 900 A.2d 368, 376 (Pa.Super.

2006) (en banc), appeal denied, 591 Pa. 681, 917 A.2d 313 (2007). “[L]ike

most legal errors, it is nevertheless waivable under Pennsylvania law.” Id.


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3
  The record shows that Appellant was an active participant in the plea
proceedings. Specifically, the prosecutor informed the court that the parties
had negotiated a “stay away order,” prohibiting Appellant from contacting
Mr. Barr or Mr. Barr’s girlfriend. (See N.T. Plea and Sentencing Hearing at
8.) Appellant interjected, “Can I ask you a question, does that stay away
order work both ways?” (Id. at 11). The court responded that it did, and
Mr. Barr and his girlfriend could not antagonize Appellant. The court and
Appellant also discussed the consequences of violating the stay away order,
and the need for Appellant to take his medication as prescribed. At the
conclusion of this discussion, Appellant thanked the court for its concern.



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at 377. Here, Appellant failed to raise this issue with the trial court in the

first instance, so it is waived.4 See id.

       In his fourth issue, Appellant claims the offenses of PIC and terroristic

threats were graded as first degree misdemeanors.            Appellant also insists

the court imposed illegal sentences. We disagree.

       “Issues relating to the legality of a sentence are questions of law….”

Commonwealth v. Diamond, 945 A.2d 252, 256 (Pa.Super. 2008), appeal

denied, 598 Pa. 755, 955 A.2d 356 (2008).                 “The defendant or the

Commonwealth may appeal as of right the legality of the sentence.”                42

Pa.C.S.A. § 9781(a).       See also Commonwealth v. Edrington, 780 A.2d

721 (Pa.Super. 2001) (maintaining legality of sentence claims cannot be

waived, where reviewing court has proper jurisdiction). When the legality of

a sentence is at issue on appeal, our “standard of review over such

questions is de novo and our scope of review is plenary.” Diamond, supra

at 256. “If no statutory authorization exists for a particular sentence, that

sentence is illegal and subject to correction.        An illegal sentence must be

vacated….”     Commonwealth v. Pombo, 26 A.3d 1155, 1157 (Pa.Super.

2011) (quoting Commonwealth v. Bowers, 25 A.3d 349, 352 (Pa.Super.

2011)).

       The    Crimes     Codes     governs     the   sentencing   of   first   degree
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4
  The court imposed the sentence recommended as part of the plea
agreement.



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misdemeanors as follows:

           § 1104. Sentence of imprisonment for misdemeanors

              A person who has been convicted of a misdemeanor
           may be sentenced to imprisonment for a definite term
           which shall be fixed by the court and shall be not more
           than:

                    (1) Five years in the case of a misdemeanor of
             the first degree.

                                 *    *    *


18 Pa.C.S.A. § 1104(1).

     Instantly, the court sentenced Appellant to time served to six (6)

months’ imprisonment for terroristic threats.    For the PIC conviction, the

court imposed a consecutive term of two (2) years’ probation.        Neither

sentence exceeded the statutory maximum allowed for a first degree

misdemeanor. See id. Therefore, Appellant is not entitled to relief on this

issue. See Pombo, supra. Following our own independent evaluation of

the record, we affirm and grant counsel’s petition to withdraw.

     Judgment of sentence affirmed; counsel’s petition to withdraw is

granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/17/2015




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