J-S65022-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL ALLYN HARRINGTON                   :
                                               :
                       Appellant               :   No. 930 MDA 2019


         Appeal from the Judgment of Sentence Entered, May 13, 2019,
               in the Court of Common Pleas of Bradford County,
             Criminal Division at No(s): CP-08-CR-0000797-2018.

BEFORE:      PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.:                          FILED JANUARY 27, 2020

        Michael Allyn Harington appeals from the judgment of sentence imposed

following his plea of nolo contendere to possession of drug paraphernalia.

Additionally, Harrington’s court-appointed counsel, Patrick Lee Beirne,

Esquire, has filed a petition to withdraw as counsel and an accompanying brief

pursuant to Anders v. California, 386 U.S. 738, 744 (1967) (hereinafter the

“Anders Brief”). We grant Attorney Beirne’s petition, and affirm Harrington’s

judgment of sentence.

        The facts underlying the instant appeal are as follows. On October 24,

2018, police initiated a traffic stop when they observed Harrington operating

a vehicle with plates that were expired and registered to another vehicle.


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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Harrington attempted to elude police, but was apprehended. In the vehicle,

officers found a glass smoking pipe and a container of a white powdery

substance,    which    Harrington    and    his   passenger     identified    as

methamphetamine. Harrington also admitted to smoking methamphetamine

earlier in the day. Police conducted a driver’s license check which revealed

that Harrington’s operating privileges were suspended.      Police additionally

determined that Harrington was not the owner of the vehicle he was driving,

and did not have permission to possess or drive it. Police arrested Harrington

and charged him with multiple drug and vehicle code violations. On March

14, 2019, pursuant to an agreement with the Commonwealth, Harrington

entered a plea of nolo contendere to one count of possession of drug

paraphernalia. The remaining eight counts were nolle prossed. The trial court

ordered a presentence investigation report (“PSI”).

      On May 13, 2019, the court conducted a sentencing hearing.             The

prosecutor indicated that, pursuant to the terms of the plea agreement,

Harrington should be sentenced to a time-served minimum sentence (eighty-

six days), followed by supervision. See N.T. Sentencing, 5/13/18, at 1. At

the conclusion of the hearing, the trial court imposed a sentence of eighty-six

days to one year incarceration, credited Harrington with eighty-six days of

time served, and immediately paroled him. The trial court also imposed terms

of supervision. Harrington thereafter filed a timely post-sentence motion to

modify his sentence, which the trial court denied. Harrington filed a timely


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notice of appeal. The trial court did not order Harrington to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal; however, the

trial court authored a Pa.R.A.P. 1925(a) opinion.      In this Court, Attorney

Beirne filed a petition to withdraw as counsel and an Anders brief. Harrington

did not file a response to the petition to withdraw or the Anders brief.

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

merits of the underlying issues without first passing on the request to

withdraw.” Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super. 2010)

(citation omitted). Pursuant to Anders, when counsel believes an appeal is

frivolous and wishes to withdraw from representation, counsel must do the

following:

      (1) petition the court for leave to withdraw stating that after
      making a conscientious examination of the record, counsel has
      determined the appeal would be frivolous; (2) file a brief referring
      to any issues that might arguably support the appeal, but which
      does not resemble a no-merit letter; and (3) furnish a copy of the
      brief to the defendant and advise him of his right to retain new
      counsel, proceed pro se, or raise any additional points he deems
      worthy of this Court’s attention.

Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006)

(citation omitted).   In Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009), our Supreme Court addressed the second requirement of Anders, i.e.,

the contents of an Anders brief, and required that the brief:

      (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;


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      (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.          Once counsel has satisfied the Anders

requirements, it is then this Court’s responsibility “to conduct a simple review

of the record to ascertain if there appear on its face to be arguably meritorious

issues   that   counsel,   intentionally   or   not,   missed   or   misstated.”

Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018).

      Here, Attorney Beirne has substantially complied with each of the

requirements of Anders. Attorney Beirne indicates that he conscientiously

examined the record and determined that an appeal would be frivolous.

Further, Attorney Beirne’s Anders brief substantially comports with the

requirements set forth by the Supreme Court of Pennsylvania in Santiago.

Finally, the record includes a copy of the letter that Attorney Beirne sent to

Harrington, advising him of his right to proceed pro se or retain alternate

counsel and file additional claims, and stating Attorney Beirne’s intention to

seek permission to withdraw. Accordingly, Attorney Beirne has complied with

the procedural requirements for withdrawing from representation, and we will

conduct an independent review to determine whether Harrington’s appeal is

wholly frivolous.




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      In the Anders Brief, Attorney Beirne raises the following discretionary

sentencing issue for our review: “Was the sentence imposed by the sentencing

court excessive?” Anders Brief at 3. In discussing this issue, Attorney Beirne

indicates his belief that this claim is frivolous because (1) the sentence

imposed complies with the negotiated plea agreement; (2) the sentence falls

within the standard range of the sentencing guidelines; and (3) when imposing

the sentence, the trial court had the benefit of a PSI.

      Harrington entered a nolo contendere plea, which has the same effect

as a guilty plea for purposes of sentencing and is considered a conviction. See

Commonwealth v. Lewis, 79 A.2d 1227 (Pa. Super. 2002). Notably, upon

entry of a negotiated guilty plea, a defendant waives all claims and defenses

other than those sounding in the jurisdiction of the court, the validity of the

plea, and the legality of the sentence imposed. Commonwealth v. Jabby,

200 A.3d 500, 505 (Pa. Super. 2018).

      Here, the record reflects that Harrington’s plea was negotiated.      In

exchange for his nolo contendere plea to one count of possession of drug

paraphernalia, the Commonwealth agreed to dismiss the remaining eight

charges filed against him, and to a time served minimum sentence (eighty-

six days), followed by a period of supervision. See N.T. Sentencing, 5/13/19,

at 1-2, 6-7.   The trial court accepted Harrington’s plea and imposed the

sentence he agreed to receive. Having entered a valid negotiated plea, and

received the agreed-upon sentence, Harrington cannot challenge the


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discretionary aspects of his sentence. See Commonwealth v. Baney, 860

A.2d 127, 131 (Pa. Super. 2004); see also Commonwealth v. Reichle, 589

A.2d 1140, 1141 (Pa. Super. 1991) (“Where the plea agreement contains a

negotiated sentence which is accepted and imposed by the sentencing court,

there is no authority to permit a challenge to the discretionary aspects of that

sentence.”); Commonwealth v. Coles, 530 A.2d 453, 458 (Pa. Super. 1987)

(observing that permitting a discretionary appeal following the entry of a

negotiated plea would undermine the designs and goals of plea bargaining,

and “would make a sham of the negotiated plea process”). Therefore, we

agree with Attorney Bierne’s assessment that Harrington’s excessiveness

claim is, in fact, wholly frivolous.

       As required by Anders, we have independently reviewed the record in

order to determine whether there are any non-frivolous issues present in this

case. Our independent review of the record discloses no other non-frivolous

issues that Harrington could raise that his counsel overlooked. Dempster,

supra. The record of the case demonstrates no jurisdictional defects in the

Bradford County Court of Common Pleas. There is no indication in the record

that   Harrington’s     plea   was    not      entered   knowingly,   voluntarily,   and

intelligently.1 Finally, Harrington received a legal sentence.

____________________________________________


1 The certified record does not contain a written plea colloquy. The trial court
conducted a plea hearing on March 14, 2019. However, Harrington did not
request that the proceedings be transcribed. See Pa.R.A.P. 1911; see also



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       Having concluded that there are no meritorious issues, we grant

Attorney Bierne’s petition to withdraw as counsel, and affirm the judgment of

sentence.

       Petition to withdraw as counsel granted.         Judgment of sentence

affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/27/2020




____________________________________________


Commonwealth v. Steward, 775 A.2d 819, 833 (Pa. Super. 2001) (noting
that it was not the responsibility of the trial court to order the notes of
transcript; but, rather, it is the responsibility of the appellant to order all
transcripts necessary to the disposition of his appeal). Thus, our independent
review is limited by the absence of the notes of testimony from the plea
hearing. Nevertheless, the trial court indicted its finding that Harrington’s plea
was made knowingly, intelligently, and voluntarily. See Order, 3/22/19, at 1.

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