J-S19014-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 KASHEYON LEE-CHIMA                       :
                                          :
                    Appellant             :   No. 3688 EDA 2018

     Appeal from the Judgment of Sentence Entered November 14, 2018
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0012239-2015


BEFORE: BOWES, J., McCAFFERY, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.:                               FILED JULY 13, 2020

      Kasheyon Lee-Chima appeals from his November 14, 2018 judgment of

sentence entered after he entered a plea of nolo contendere to the charges of

involuntary deviate sexual intercourse with a child (“IDSI”), unlawful contact

with a minor, and indecent assault of a person less than 13 years of age.

Appellant’s counsel, Matthew Sullivan, Esquire, has filed a petition to withdraw

pursuant to Anders v. California, 386 U.S. 738 (1967) and Commonwealth

v. Santiago, 978 A.2d 349 (Pa. 2009). We affirm Appellant’s judgment of

sentence, and we grant counsel’s petition to withdraw.

      Appellant was charged in connection with allegations that he had

sexually assaulted a minor (the “victim”) while temporarily living with the

victim’s family in Philadelphia, Pennsylvania. The victim disclosed the abuse

to his mother several days after it occurred, stating that Appellant had

assaulted him by touching the victim’s penis, putting the victim’s penis in his
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mouth, and forcing the victim to touch his penis. See N.T. Plea Colloquy,

11/14/18, at 14-16. Appellant later turned himself in to the police, waived

his Miranda1 rights, and confessed to the above-referenced acts.2 Id. at 16.

Ultimately, Appellant entered a negotiated plea of nolo contendere to the

above-referenced crimes after participating in a plea colloquy before the trial

court.     In exchange for his plea, the Commonwealth recommended that

Appellant receive an aggregate sentence of five and one-half to twelve years

of imprisonment, followed by ten years of probation. See N.T. Sentencing,

11/14/18, at 6-7.

         At this point, Appellant was still represented by trial counsel.

Nonetheless, Appellant chose to file a timely, pro se notice of appeal.3

Thereafter, the trial court appointed new appellate counsel4 to represent

Appellant. The trial court directed Appellant to file a concise statement of

____________________________________________


1   See Miranda v. Arizona, 384 U.S. 436 (1966).

2  Appellant sought to suppress the inculpatory statements he made to law
enforcement on the grounds that Appellant had decided to turn himself in after
consulting with a pastor, and no video evidence of Appellant’s waiver of his
Miranda rights was created by police. See N.T. Suppression Hearing, 6/8/18,
at 44-52. The trial court denied Appellant’s motion. Id. at 54-58.

3 Ordinarily, such a pro se filing would have no legal effect because Appellant
was still represented by counsel when he filed this notice. However, notices
of appeal are an exception to the ordinary rules forbidding hybrid
representation. See Pa.R.A.P. 121(g)(i); see also S.C.B. v. J.S.B., 218 A.3d
905, 911 n.4 (Pa.Super. 2019). Thus, Appellant’s notice of appeal was proper.

4   Trial counsel withdrew his representation shortly after Appellant initiated
this appeal, averring that Appellant had neither informed him of his intent to
file the instant appeal, nor retained him to assist in the appeal.

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

appellate counsel filed a statement under Rule 1925(c)(4), stating his

intention to seek withdrawal from the case pursuant to the Anders/Santiago

framework. Thereafter, appellate counsel filed an Anders brief along with a

petition to withdraw.          In relevant part, appellate counsel averred that

Appellant had no cognizable or meritorious claims relating to the trial court’s

jurisdiction, his plea, or his sentence.

       Appellant filed an application seeking the appointment of new counsel,

which this Court denied. However, we provided Appellant a thirty-day window

in which to submit a response to appellate counsel’s Anders brief “either pro

se, or via privately retained counsel.”          Order, 8/14/19.    Appellant sought

numerous extensions and ancillary relief related to this response, serially

alleging    that   appellate    counsel    had   not   provided    him   with   certain

documentation and transcripts related to his case.5 Eventually, Appellant filed

a pro se response to appellate counsel’s Anders brief, claiming that various

meritorious issues allegedly remain in his case.

       Before we address the merits of this appeal, we must determine whether

counsel has complied with the procedures provided in Anders and its progeny.

Commonwealth v. Yorgey, 188 A.3d 1190, 1195 (Pa.Super. 2018) (en

banc).     “Counsel who wishes to withdraw must file a petition to withdraw
____________________________________________


5 On November 13, 2019, appellate counsel filed a response with this Court
denying that he had withheld any materials from Appellant, and averring that
he had provided him with all of the relevant materials in his possession. See
Response, 11/13/19, at ¶¶ 1-5.

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stating that he or she has made a conscientious examination of the record and

determined that the appeal would be frivolous.”       Id.   “Also, counsel must

provide a copy of the Anders brief to the appellant and inform him of his right

to proceed pro se or retain different counsel.” Id. at 1195-96.

      At a minimum, the 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. Id. at 1196. Overall, the

brief “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 the outset, we note that as a result of Appellant’s nolo contendere

plea, his available appellate claims are curtailed under Pennsylvania law. See

Commonwealth v. Jabbie, 200 A.3d 500, 505 (Pa.Super. 2018). In relevant

part, such a plea “waives all claims and defenses other than those sounding

in the jurisdiction of the court, the validity of the plea, and what has been

termed the ‘legality’ of the sentence imposed.” Id.

      Counsel has offered a thorough and cogent discussion of the history of

Appellant’s case and the legal arguments in support of the conclusion that

Appellant has no claims of arguable merit.        See Anders brief at 1-18.

Counsel’s discussion clearly recognizes the legal consequences of Appellant’s

nolo contendere plea, and enumerates the lack of arguable merit in any of the

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available arguments, to wit: (1) Appellant did not file any post-sentence

motions or petitions seeking to withdraw his guilty plea, and has waived any

claims challenging the validity of his plea; and (2) Appellant’s sentence

appears to be legal. Id. Finally, there are no obvious jurisdictional defects.

      Based on the foregoing analysis, we conclude that counsel has complied

with the requirements of Anders.         Counsel has filed both a petition to

withdraw and a substantively compliant Anders brief.           Counsel has also

provided a copy of his brief to Appellant, and advised Appellant of his right to

proceed either pro se or with a privately retained attorney. Thus, we find that

appellate counsel has technically complied with the requirements of Anders.

      However, our review does not end there.          Having determined that

appellate counsel is in technical compliance with Anders, we also must

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

is wholly frivolous.” Yorgey, supra at 1196 (citing Anders, supra at 744).

This independent examination of Appellant’s case “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.” Id. at 1197.

      Reviewing Appellant’s pro se response to counsel’s Anders brief, we

discern that the only issues he raises that are not foreclosed by the legal effect

of his nolo contendere plea relate to the validity of his underlying plea. See

Appellant’s Anders Response, 5/22/20, at 6-16.          Contrary to Appellant’s

averments, “a plea of nolo contendere is treated as a guilty plea in terms of

its effect upon a given case.”    Commonwealth v. V.G., 9 A.3d 222, 226

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(Pa.Super. 2010). Thus, in order to preserve challenges to the validity of a

plea, a defendant must object at the colloquy or otherwise raise the issue at

the   sentencing     hearing     or   through    a   post-sentence   motion.   See

Commonwealth v. Tareila, 895 A.2d 1266, 1270 n.3 (Pa.Super. 2006)

(citing Pa.R.A.P. 302(a)). “Where an appellant fails to challenge his guilty

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

       Instantly, Appellant did not object at his colloquy or during his

sentencing hearing. Moreover, he did not file any post-sentence motions.6

Thus, Appellant has waived any arguable challenge to the validity of his nolo

contendere plea. 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.”).

       Based on the foregoing discussion, we find that Appellant’s claims

challenging the validity of his nolo contendere plea lack merit. Furthermore,

after conducting a thorough examination of the certified record, we discern no

non-frivolous issues to be raised in Appellant’s case. Consequently, we grant

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

sentence.


____________________________________________


6  Belying the certified record, Appellant claims that he did, in fact, file a
petition to withdraw and has attached an alleged copy of the filing to his pro
se response. See Appellant’s Anders Response, 5/22/20, at Exhibit 1.
However, this document does not appear on the trial court docket, bears no
indicia of having ever been filed, and is de hors the certified record. As such,
we will not consider it. Accord Pa.R.A.P. 1921; see also Commonwealth
v. Young, 317 A.2d 258, 264 (Pa. 1974) (holding that an appellate court may
consider only the facts which have been duly certified in the record on appeal).

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     Petition of Matthew Sullivan, Esquire, to withdraw as counsel granted.

Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/13/20




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