J-S80016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CODY ALLEN BREINER

                            Appellant                 No. 701 MDA 2016


        Appeal from the Judgment of Sentence Entered March 28, 2016
                In the Court of Common Pleas of Berks County
              Criminal Division at No: CP-06-CR-0005748-2015


BEFORE: LAZARUS, STABILE, and RANSOM, JJ.

MEMORANDUM BY STABILE, J.:                       FILED DECEMBER 23, 2016

        Appellant Cody Allen Breiner appeals from the March 28, 2016

judgment of sentence entered in the Court of Common Pleas of Berks

County (“trial court”), following his guilty plea to receiving stolen property

and firearms not to be carried without a license.1     Appellant’s counsel has

filed a petition to withdraw, alleging that this appeal is wholly frivolous, and

filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). For the reasons

set forth below, we affirm Appellant’s judgment of sentence, and grant

counsel’s petition to withdraw.



____________________________________________


1
    18 Pa.C.S.A. §§ 3925(a) and 6106(a)(1), respectively.
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        The facts and procedural history of this case are undisputed. Briefly,

Appellant entered into a negotiated guilty plea to the above-referenced

offenses and the trial court sentenced him to an aggregate term of 364 to

728 days’ imprisonment,2 followed by 5 years of probation on March 28,

2016. Appellant did not file any post-sentence motions. This timely appeal

followed.3 After this appeal was filed, on May 25, 2015, Appellant’s counsel

filed a nunc pro tunc post-sentence motion seeking the withdrawal of his

guilty plea.4

        On the same day, instead of filing a court-ordered Pa.R.A.P. 1925(b)

statement of errors complained of on appeal, Appellant’s counsel 5 filed a

statement of intent to file an Anders brief under Pa.R.A.P. 1925(c)(4).6
____________________________________________


2
    Appellant received a credit of 143 days for time served.
3
  Although Appellant’s notice of appeal is time-stamped April 28, 2018, the
envelope containing the notice is dated April 26, 2016. Accordingly, we
conclude that, pursuant to the “prisoner mailbox rule,” Appellant notice of
appeal was filed on April 26, 2016. See Commonwealth v. Wilson, 911
A.2d 942, 944 (Pa. Super. 2006) (recognizing that under the “prisoner
mailbox rule” a document is deemed filed when placed in the hands of prison
authorities for mailing).
4
  On June 6, 2016, the trial court permitted Appellant to file the nunc pro
tunc post-sentence motion to withdraw the guilty plea, but denied him relief
on the merits.
5
  Because of a conflict of interest, the trial court appointed Abby Rigdon,
Esquire, as conflict counsel to represent Appellant on this appeal.
6
    Rule 1925(c)(4) provides:
        In a criminal case, counsel may file of record and serve on the
        judge a statement of intent to file an [Anders] brief in lieu of
        filing a Statement. If, upon review of the [Anders] brief, the
        appellate court believes that there are arguably meritorious
(Footnote Continued Next Page)


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Appellant’s counsel noted Appellant intended to raise ineffectiveness claims

that could not be reviewed on direct appeal.        On June 22, 2016, the trial

court issued a two-page Pa.R.A.P. 1925(a) opinion, concluding that no

meritorious issues exist for purposes of direct appeal.

      On July 29, 2016, Appellant’s counsel filed in this Court a motion to

withdraw as counsel and filed an Anders brief, wherein counsel raises two

issues for our review:

      [I.] Did the trial court err in denying the post sentence motion to
      withdraw the guilty plea?

      [II.] Was trial counsel ineffective at the guilty plea and
      sentencing hearing and by failing to file post sentence motions?

Anders Brief at 5.

      When presented with an Anders brief, this Court may not review the

merits of the underlying issues without first examining counsel’s petition to

withdraw.    Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.

2007) (en banc).         It is well-established that, in requesting a withdrawal,

counsel must satisfy the following procedural requirements: 1) petition the

court for leave to withdraw stating that, after making a conscientious

examination of the record, counsel has determined that the appeal would be
                       _______________________
(Footnote Continued)

      issues for review, those issues will not be waived; instead, the
      appellate court may remand for the filing of a Statement, a
      supplemental opinion pursuant to Rule 1925(a), or both. Upon
      remand, the trial court may, but is not required to, replace
      appellant’s counsel.
Pa.R.A.P. 1925(c)(4).




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frivolous; 2) provide a copy of the brief to the defendant; and 3) advise the

defendant that he or she has the right to retain private counsel, proceed pro

se or raise additional arguments that the defendant considers worthy of the

court’s addition. Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.

2009).

        Instantly, counsel’s petition to withdraw from representation provides

that counsel reviewed the record and concluded that the appeal is frivolous.

Furthermore, counsel notified Appellant that she was seeking permission to

withdraw and provided Appellant with copies of the petition to withdraw and

his Anders brief. Counsel also advised Appellant of his right to retain new

counsel, proceed pro se, or raise any additional points he deems worthy of

this Court’s attention.   Accordingly, we conclude that counsel has satisfied

the procedural requirements of Anders.

        We next must determine whether counsel’s Anders brief complies with

the substantive requirements of Santiago, wherein our Supreme 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.

Santiago, 978 A.2d at 361.       Here, our review of counsel’s brief indicates

that she has complied with the briefing requirements of Santiago.            We,

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therefore, conclude that counsel has satisfied the minimum requirements of

Anders/Santiago.

     Once     counsel   has   met   her   obligations,   “it   then   becomes   the

responsibility of the reviewing court to make a full examination of the

proceedings and make an independent judgment to decide whether the

appeal is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5. Thus,

we now turn to the merits of Appellant’s appeal.

     Appellant first argues that the trial court erred in denying his post-

sentence motion to withdraw a guilty plea.         Before we may discuss the

merits of Appellant’s claim, we must determine whether the trial court had

jurisdiction to permit the nunc pro tunc filing of the post-sentence motion to

withdraw the guilty plea. As noted earlier, Appellant here failed to file any

post-sentence motions within 10 days from the date of sentencing, i.e., by

April 7, 2016. Instead, Appellant’s counsel filed a nunc pro tunc motion to

withdraw the negotiated guilty plea on May 25, 2015, almost one month

after the notice of appeal was filed and nearly two months after the

imposition of sentence. We recently explained:

     [A] post-sentence motion nunc pro tunc may toll the appeal
     period, but only if two conditions are met. First, within 30 days
     of imposition of sentence, a defendant must request the trial
     court to consider a post-sentence motion nunc pro tunc. The
     request for nunc pro tunc relief is separate and distinct from the
     merits of the underlying post-sentence motion. Second, the trial
     court must expressly permit the filing of a post-sentence
     motion nunc pro tunc, also within 30 days of imposition of
     sentence.




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Commonwealth v. Capaldi, 112 A.3d 1242, 1244 (Pa. Super. 2015)

(emphasis in original) (citation and quotation marks omitted); see 42

Pa.C.S.A. § 5505 (“Except as otherwise provided or prescribed by law, a

court upon notice to the parties may modify or rescind any order within 30

days after its entry, notwithstanding the prior termination of any term of

court, if no appeal from such order has been taken or allowed.”).             Here,

Appellant filed his nunc pro tunc post-sentence motion nearly 60 days after

sentencing and almost 30 days after Appellant filed the notice of appeal.

Accordingly, the trial court did not have jurisdiction to consider the nunc pro

tunc post-sentence motion.

        Next, Appellant argues that his trial counsel rendered ineffective

assistance. We, however, decline to consider the ineffectiveness claims at

this juncture based on our Supreme Court’s decision in Commonwealth v.

Holmes, 79 A.3d 562 (Pa. 2013).               In Holmes, 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). See Holmes, 79 A.3d at 576. The specific circumstances

under which ineffectiveness claims may be addressed on direct appeal are

not present in the instant case.       See id. at 577-78 (holding that the trial

court    may   address   claims   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

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“prolix” ineffectiveness claims is “accompanied by a knowing, voluntary, and

express waiver of PCRA review”).      Accordingly, Appellant must raise his

ineffectiveness claims in a timely-filed PCRA petition. We, however, express

no opinion on the merits of such effectiveness claim.

     We have conducted an independent review of the record and

addressed Appellant’s arguments properly before us on direct appeal.     We

agree with counsel that the issues Appellant seeks to litigate in this appeal

are wholly frivolous. Also, we do not discern any non-frivolous issues that

Appellant could have raised.     We, therefore, grant counsel’s petition to

withdraw and affirm the judgment of sentence.

     Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/23/2016




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