J-S59012-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                            IN THE SUPERIOR COURT OF
                                                               PENNSYLVANIA
                            Appellee

                       v.

BRYAN J. SHINE,

                            Appellant                         No. 2566 EDA 2015


          Appeal from the Judgment of Sentence Entered July 20, 2015
             In the Court of Common Pleas of Montgomery County
             Criminal Division at No(s): CP-46-CR-0007265-2013


BEFORE: BENDER, P.J.E., OLSON, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                               FILED OCTOBER 18, 2016

        Appellant, Bryan J. Shine, appeals from the judgment of sentence of

1½ to 5 years’ incarceration, imposed after he pled guilty to driving under

the influence (DUI) - highest rate of alcohol, 75 Pa.C.S. § 3802(c); driving

while operating privilege is suspended or revoked, 75 Pa.C.S. § 1543; and

fleeing or attempting to elude a police officer, 75 Pa.C.S. § 3733. Appellant

seeks to raise various issues on appeal.               However, his counsel, Sean E.

Cullen, Esq., has concluded that Appellant’s claims are frivolous and,

consequently,     Attorney     Cullen    has   filed    a   petition   to   withdraw   his

representation of Appellant pursuant to Anders v. California, 386 U.S. 738

(1967), and Commonwealth v Santiago, 978 A.2d 349 (Pa. 2009). After

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S59012-16



careful review, we affirm Appellant’s judgment of sentence and grant

counsel’s petition to withdraw.

      On April 29, 2015, Appellant pled guilty to the above-stated offenses.

He was sentenced to the aggregate term stated supra on July 20, 2015.

Appellant filed a timely notice of appeal.            Thereafter, he filed a pro se

petition for the appointment of new counsel, which the court granted,

appointing Tammy Michele Washington, Esq., as appellate counsel.                 The

court then issued an order directing Appellant to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal. Attorney Washington

filed a motion for a 90-day extension of time to file Appellant’s Rule 1925(b)

statement, which the court granted on October 23, 2015.

      Over the ensuing months, Attorney Washington did not file a Rule

1925(b) statement on Appellant’s behalf.             On January 20, 2016, the trial

court issued an order appointing new counsel, Attorney Cullen, to represent

Appellant on appeal.    The court’s January 20, 2016 order also directed

Attorney Cullen to file a Rule 1925(b) statement on Appellant’s behalf.

However,   Attorney    Cullen     did   not   file    a   Rule   1925(b)   statement.

Consequently, on March 25, 2016, the court issued a Rule 1925(a) opinion

concluding that Appellant’s issues were waived. However, the court found,

without elaboration, that Attorney Cullen was “in a procedural bind and

[was] essentially unable to file a 1925(b) Statement on behalf of his

client….” Trial Court Opinion (TCO), 3/25/16, at 2 n.1. Accordingly, the trial

court asked this Court to “remand this matter, pursuant to Pa.R.A.P.

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1925(c)(3), to the trial court so that appellate counsel may file a [concise]

[s]tatement nunc pro tunc and for the preparation and filing of an opinion by

the trial court.” Id. at 2.

       After the trial court’s opinion was filed, Attorney Cullen filed with this

Court a petition to withdraw as counsel and an Anders brief, wherein he

addresses seven issues that Appellant raised in two, pro se Rule 1925(b)

statements filed during the pendency of this appeal.1           Additionally, in his

Anders brief, Attorney Cullen indicates that he would not file a Rule 1925(b)

statement if we remand this case, as he cannot ascertain any non-frivolous

issues to raise on appeal.          See Anders Brief at 3.       Accordingly, it is

apparent that if we remand, Attorney Cullen will file a Rule 1925(c)(4)

statement of his intent to file an Anders brief and petition to withdraw,

which would not elucidate the issues Appellant seeks to raise for the trial

court to issue a Rule 1925(a) opinion.           Under this procedural posture, we

decline to remand. The record before us is sufficient for us to meaningfully

review counsel’s petition to withdraw, the issues Appellant wishes to raise on

appeal, and whether there are any non-frivolous claims that Appellant could

assert herein.
____________________________________________


1
  The trial court acknowledged that Appellant had filed those pro se Rule
1925(b) statements, but it declined to address the issues raised therein, as
Appellant was represented by counsel when those documents were filed.
See TCO at 2; see also Commonwealth v. Ali, 10 A.3d 282, 293 (Pa.
2010) (finding that a pro se Rule 1925(b) statement filed by a represented
defendant is “a legal nullity”).



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     Accordingly, we will begin by addressing the adequacy of Attorney

Cullen’s petition to withdraw and his Anders brief.          This Court has

explained:

     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, 879-880 (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).


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

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

and procedural history, he refers to portions of the record that could

arguably support Appellant’s issues, and he sets forth his conclusion that

Appellant’s appeal is frivolous. He also explains his reasons for reaching that

determination, and supports his rationale with citations to the record and

pertinent   legal   authority.   Additionally,   Attorney   Cullen   has   filed

supplemental documents, at the direction of this Court, to confirm that he

has properly informed Appellant of the rights outlined in Nischan.         See

Attorney Cullen’s “Response to Order,” 7/7/16.      Accordingly, counsel has

complied with the technical requirements for withdrawal.         We will now

independently review the record to determine if Appellant’s issues are

frivolous, and to ascertain if there are any other non-frivolous issues he

could pursue on appeal.

      Attorney Cullen sets forth the following issues that Appellant seeks to

raise, which we have reordered for ease of disposition:

      1. The [trial] [c]ourt erred as a matter of law, because Appellant
      was denied his [c]onstitutional right of competent and effective
      counsel.

      2. The [trial] [c]ourt erred as a matter of law, because
      Appellant’s [c]ounsel was ineffective for failure to share
      discovery with Appellant, failure to move for dismissal of the
      case due to Rule 600, refusal to get inpatient records, signing
      Rule 600 waiver without Appellant’s permission, and refusing to
      discuss the case with Appellant.




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     3. The [trial] [c]ourt erred as a matter of law, because
     Appellant’s prior counsel failed to help Appellant withdraw his
     guilty plea and proceed to trial.

     4. The [trial] [c]ourt erred as a matter of law, because
     Appellant’s sentence is illegal as an operation of law as this was
     a second offense DUI, not a third offense.

     5. The [trial] [c]ourt erred as a matter of law, because the legal
     maximum sentence on a second offense DUI is six (6) months.

     6. The [trial] [c]ourt erred as a matter of law, because [the trial]
     [c]ourt lack[ed] jurisdiction over this case.

     7. The [trial] [c]ourt erred as a matter of law, because Appellant
     was not given time credit for seventy-seven (77) days of time in
     an inpatient [treatment] facility.

Anders Brief at 4.

     Appellant’s first three issues allege ineffective assistance of his plea

counsel.   In Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), our

Supreme Court reaffirmed its prior holding in Commonwealth v. Grant,

813 A.2d 726 (Pa. 2002), that, absent certain circumstances, claims of

ineffective assistance of counsel should be deferred until collateral review

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.

Holmes, 79 A.3d at 576.          The specific circumstances under which

ineffectiveness claims may be addressed on direct appeal are not present in

Appellant’s case.    See id. at 577-78 (holding that the trial court may

address claim(s) of ineffectiveness where they are “both meritorious and

apparent from the record so that immediate consideration and relief is

warranted,” or where the appellant’s request for review of “prolix”

ineffectiveness claims is “accompanied by a knowing, voluntary, and express



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waiver of PCRA review”). Accordingly, we agree with Attorney Cullen that

raising these ineffectiveness claims on direct appeal would be frivolous, as

Appellant must wait to assert them on collateral review.

      Appellant’s fourth and fifth issues are related and, therefore, we will

address them together. Briefly, Appellant challenges the legality of a one-

year mandatory minimum sentence imposed for his DUI offense under 75

Pa.C.S. § 3804(c). That section states, in pertinent part:

      (c)   Incapacity;     highest     blood      alcohol;    controlled
      substances.--An individual who violates      section 3802(a)(1) and
      refused testing of blood or breath or an     individual who violates
      section 3802(c) or (d) shall be sentenced    as follows:

                                     ***

         (2) For a second offense, to:

            (i) undergo imprisonment of not less than 90 days;

                                     ***

      (3) For a third or subsequent offense, to:

            (i) undergo imprisonment of not less than one year;

75 Pa.C.S. § 3804(c). Relatedly, section 3806(b) states that for a previous

DUI offense to constitute a ‘prior offense’ under section 3804(c), it must

have occurred “within 10 years prior to the date of the offense for which the

defendant is being sentenced….” 75 Pa.C.S. § 3806(b).

      Appellant initially seeks to argue that his one-year DUI sentence is

illegal because he only had one ‘prior conviction’ rather than two, thus

subjecting him to a mandatory term of only 90 days’ imprisonment. At the

time of sentencing, the court concluded that Appellant’s current DUI offense

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was his third.    N.T. Sentencing, 7/20/15, at 10.     Attorney Cullen explains

that the court’s determination was correct, as Appellant committed two prior

DUI offenses, one on December 24, 2003, and one on January 13, 2011.

Anders Brief at 8-9. Appellant’s current offense under section 3802(c) was

committed on April 23, 2013, thus within 10 years of both of those prior

offenses.   Accordingly, the court’s imposition of the mandatory one-year

term delineated in section 3804(c) was not error.

      Appellant also seeks to challenge both the facial constitutionality of

section 3608(b), as well as the constitutionality of that provision as applied

in this case. First, Appellant would argue that the enactment of 75 Pa.C.S. §

3806(b) “violates the prohibition of ex post facto laws” set forth in “the

United States Constitution and the Constitution of the Commonwealth of

Pennsylvania….” Anders Brief at 9. To the extent that Appellant seeks to

challenge the facial constitutionality of section 3806(b), such a claim would

be frivolous.    “This Court has repeatedly held that the amendment to the

DUI statute providing for a ten year look-back period to determine whether

a defendant had prior DUI offenses, for purposes of enhancing subsequent

offenses, did not constitute an ex post facto violation.” Commonwealth v.

Cook, 941 A.2d 7, 13 (Pa. Super. 2007) (citations omitted).

      Additionally,   Appellant’s   argument    that     section   3806(b)   is

unconstitutional, as applied in his case, is also frivolous. “Section 3806(b),

which altered the ‘look-back’ period from seven to ten years, became

effective on February 1, 2004,” nine years before Appellant was arrested for

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the present DUI conviction. Commonwealth v. Tustin, 888 A.2d 843, 846

(Pa. Super. 2005).     While Appellant’s first DUI offense occurred in 2003,

prior to the 10 year ‘look-back’ amendment, the court’s application of

section 3806(b) did not retroactively punish Appellant for that 2003 DUI

offense; it “only enhanced punishment for the latest offense, which is

considered to be an aggravated offense because it is a repetitive one.”

Cook, 941 A.2d at 13.       Accordingly, Appellant’s constitutional rights were

not violated by his previous DUI convictions being considered as ‘prior

offenses’ under section 3806(b).

      In Appellant’s sixth issue, he wishes to argue that the trial court lacked

jurisdiction over his case.     Again, this issue is frivolous.   Appellant was

charged with committing three violations of the Motor Vehicle Code.          He

conceded at the guilty plea hearing that he committed those offenses in

Montgomery County.       See N.T. Guilty Plea, 4/29/15, at 5. Therefore, the

Court of Common Pleas of Montgomery County had jurisdiction to resolve

those charges.    See Commonwealth v. Soder, 905 A.2d 502, 503 (Pa.

Super. 2006) (finding the court of common pleas had jurisdiction over

charges stemming from violations of the Motor Vehicle Code); see also

Commonwealth v. Seiders, 11 A.3d 495, 497 (Pa. Super. 2010) (stating

that a court has jurisdiction over offenses which occur within “the territorial

boundaries of the judicial district in which it sits”).

      In Appellant’s last issue, he seeks to argue that the trial court erred by

failing to give him credit for time that he spent at an inpatient treatment

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facility, specifically, from May 15th through July 23rd of 2013. Preliminarily,

our Court has declared:

      [W]hether a defendant is entitled to credit for time spent in an
      inpatient drug or alcohol rehabilitation facility turns on the
      question of voluntariness. If a defendant is ordered into inpatient
      treatment by the court, e.g., as an express condition of pre-trial
      bail, then he is entitled to credit for that time against his
      sentence. By contrast, if a defendant chooses to voluntarily
      commit himself to inpatient rehabilitation, then whether to
      approve credit for such commitment is a matter within the sound
      discretion of the court.

Commonwealth v. Toland, 995 A.2d 1242, 1250–51 (Pa. Super. 2010)

(internal citations omitted). Thus, under Toland, if a defendant is ordered

by the court to enter inpatient treatment, a challenge to the credit he

received (or did not receive) for that time implicates the legality of his

sentence. Conversely, if a defendant voluntarily enters inpatient treatment,

a challenge to the court’s decision on whether to give him credit for that

time implicates a discretionary aspect of his sentence.

      Here, we conclude that Appellant voluntarily entered the inpatient

treatment program, as nothing in the record suggests that the court ordered

him to do so. Notably, an April 23, 2013 order entered by the magisterial

district court set the amount of Appellant’s bail at $5,000, but made no

mention of inpatient treatment. That order appears to be the only document

filed by the court prior to Appellant’s entering inpatient treatment on May

15, 2013.     Accordingly, because the record indicates that Appellant’s

commitment in the treatment facility was voluntary, his argument that the



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court erred by not crediting him for the time he spent in that facility is a

challenge to the discretionary aspects of his sentence.

      “It is well settled that an [a]ppellant’s challenge to the discretionary

aspects of his sentence is waived if the [a]ppellant has not filed a post-

sentence motion challenging the discretionary aspects with the sentencing

court.”   Commonwealth v. Bromley, 862 A.2d 598, 603 (Pa. Super.

2004). Here, Appellant did not file a post-sentence motion raising his time-

credit issue.   We also point out that, during the sentencing hearing, the

court stated the periods of time for which Appellant was receiving credit, and

it did not include the time from May 15th through July 23rd of 2013.      See

N.T. Sentencing at 12. Appellant did not raise any issue concerning the time

for which he was getting credit. Thus, we are convinced that Appellant has

waived his assertion that the court erred by not giving him credit for the

time he spent in the inpatient treatment facility.   Consequently, we agree

with Attorney Cullen that asserting this claim on appeal would be frivolous.

      In sum, the seven issues Appellant seeks to raise on appeal are

frivolous. Additionally, our independent review of the record does not reveal

any other non-frivolous issues that Appellant could present on appeal.

Therefore, we affirm his judgment of sentence and grant Attorney Cullen’s

petition to withdraw.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/18/2016




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