J-S39015-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                       OF PENNSYLVANIA

                             Appellee

                        v.

    NATHANIEL BUTLER GALLOWAY

                             Appellant                No. 1951 MDA 2017


       Appeal from the Judgment of Sentence imposed November 6, 2017
                In the Court of Common Pleas of Luzerne County
                Criminal Division at No: CP-40-CR-0004583-2016

BEFORE: STABILE, MURRAY and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                           FILED AUGUST 21, 2018

        Appellant, Nathaniel Butler Galloway, appeals from his judgment of

sentence of 8-16 years’ imprisonment following his guilty plea to 150 counts

of possession of child pornography and eight counts of dissemination of child

sex acts.1 Appellant’s counsel, Mary Deady, Esquire, has filed a petition to

withdraw, alleging that this appeal is wholly frivolous, as well as a brief

pursuant to Anders v. California, 386 U.S. 738 (1967).         We grant Ms.

Deady’s application for leave to withdraw and affirm Appellant’s judgment of

sentence.

        On November 29, 2016, Appellant was arrested and charged with the

above offenses. On June 19, 2017, Appellant pleaded guilty to all charges,

and the trial court scheduled sentencing for September 15, 2017. On July 2,
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1   18 Pa.C.S.A. § 6312(c) and (d), respectively.
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2017, Appellant sent a letter to trial counsel, indicating his desire to withdraw

his guilty plea. On August 23, 2017, trial counsel filed a motion to withdraw

Appellant’s guilty plea.    On September 19, 2017, the trial court granted

Appellant’s motion. On November 6, 2017, Appellant re-entered the same

guilty plea to all counts, and the court imposed sentence of 8-16 years’

imprisonment during the same hearing.

      On November 8, 2017, trial counsel filed a motion to modify sentence

contending that Appellant’s sentence was excessive. Notably for purposes of

this appeal, Appellant’s motion did not allege that he failed to enter a knowing,

voluntary or intelligent guilty plea.

      On December 5, 2016, while Appellant’s post-sentence motion was

pending in the trial court, Appellant filed a pro se notice of appeal to this Court.

On January 4, 2018, without requesting Appellant to file a statement of

matters complained of on appeal, the trial court filed a short opinion

recommending that this Court quash the appeal as premature.

      On February 6, 2018, this Court directed the trial court to hold a hearing

under Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), to determine

whether Appellant desired to proceed pro se on appeal.           On February 27,

2018, the trial court held a Grazier hearing during which Appellant requested

court-appointed counsel, and the court appointed Ms. Deady to represent him.

On March 6, 2018, the court denied Appellant’s post-sentence motion.

      In this Court, Ms. Deady filed an Anders brief and a petition for leave

to withdraw as counsel. The Anders brief raises one issue: “Whether the

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Appellant’s guilty plea was knowingly, voluntarily and intelligently entered?”

Appellant’s Brief at 3. Appellant contends that trial counsel was ineffective for

bullying him into pleading guilty involuntarily. Id. at 9.

      Preliminarily, we note that Appellant filed his notice of appeal pro se on

December 5, 2016 even though trial counsel was representing him at that

time. This misstep is not fatal to Appellant’s appeal, for we have held that

“this Court is required to docket a pro se notice of appeal despite Appellant

being represented by counsel[.]” Commonwealth v. Williams, 151 A.3d

621, 624 (Pa. Super. 2016).

      We also note that Appellant filed his notice of appeal several months

before the trial court denied trial counsel’s timely post-sentence motion. Once

again, this misstep is not fatal to Appellant’s appeal.      Pa.R.A.P. 905(a)(5)

provides: “A notice of appeal filed after the announcement of a determination

but before the entry of an appealable order shall be treated as filed after such

entry and on the day thereof.”        Pursuant to Rule 905(a)(5), we treat

Appellant’s notice of appeal as if it were filed after entry of the order denying

his post-sentence motion and on the day thereof.

      When, as here, counsel files an Anders brief, we 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). Counsel must satisfy three procedural requirements when

seeking leave to withdraw: she must (1) petition the court for leave to

withdraw stating that, after making a conscientious examination of the record,

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counsel has determined that the appeal would be 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).

      Here, Ms. Deady’s petition to withdraw enclosed her letter to Appellant

advising that she was seeking permission to withdraw and providing Appellant

with copies of the petition to withdraw and her Anders brief.         Ms. Deady

asserted in her petition that she reviewed the record and concluded that the

appeal is frivolous. Finally, her letter to Appellant notified him of his right to

retain new counsel, proceed pro se, or raise any additional points he deemed

worthy of this Court's attention. Accordingly, Ms. Deady satisfied Anders’

procedural requirements.

      Next, we must address whether Ms. Deady’s Anders brief complies with

the substantive requirements of Commonwealth v. Santiago, 978 A.2d 349

(Pa. 2007), which held that an 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.
      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.




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      In her Anders brief, Ms. Deady included a statement of the case,

including its procedural history. Anders Brief at 5-6. She also stated that

she carefully reviewed the record and relevant caselaw but could not find any

meritorious issues.   Lastly, she explained that the appeal was frivolous,

because the issue that Appellant wanted to raise, ineffective assistance of

guilty plea counsel, had to be raised in a PCRA petition instead of on direct

appeal. Thus, Ms. Deady satisfied the substantive requirements for a petition

to withdraw under Anders.

      We turn to the single issue raised in Appellant’s Anders brief, a claim

that trial counsel was ineffective for bullying Appellant into pleading guilty

involuntarily. We agree with Ms. Deady that Appellant cannot raise this claim

on direct appeal but must instead raise it in a PCRA petition.               in

Commonwealth v. Grant, 813 A.2d 726 (2002), our Supreme Court held

that as a general rule, defendants must wait to raise ineffective assistance of

counsel claims until collateral review. Only in specific limited circumstances

may a defendant raise ineffectiveness claims in post-sentence motions and on

direct appeal. See, e.g., Commonwealth v. Holmes, 79 A.3d 562, 563–64

(Pa. 2013) (trial court has discretion to entertain ineffectiveness claims on

post-verdict motions and direct appeal where: (1) claim of ineffectiveness is

apparent from record and meritorious to the extent that immediate

consideration best serves interests of justice; or (2) where good cause is

shown and defendant knowingly and expressly waives his entitlement to seek


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subsequent PCRA review from his conviction and sentence). These exceptions

do not apply here.    Appellant did not claim ineffective assistance of trial

counsel in post-verdict motions, and he did not knowingly or expressly waive

his entitlement to seek subsequent PCRA review from his conviction.        At

present, there is nothing in the record that facilitates intelligent appellate

review of Appellant’s claim of ineffective assistance.   Therefore, Appellant

must wait until PCRA proceedings to raise an ineffective assistance claim.

Commonwealth v. Britt, 83 A.3d 198, 204 (Pa. Super. 2013) (appellant

cannot seek review of ineffectiveness claim on direct appeal, “as it involves

non-record-based claims, nor has Appellant waived PCRA review”).

      Aside from this issue, it is our duty to review the record for any other

potentially non-frivolous issues. Commonwealth v. Dempster, — A.3d —,

2018 WL 2111634, *4 (Pa. Super., May 8, 2018) (collecting cases defining

this duty). Having carefully reviewed the record, we find no other potentially

non-frivolous issues. We therefore grant Ms. Deady’s petition to withdraw and

affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date:08/21/2018

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