J-S08042-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    JAMES MICHAEL DEHNER                       :
                                               :
                      Appellant                :
                                                       No. 1282 WDA 2016

              Appeal from the Judgment of Sentence July 6, 2016
                 In the Court of Common Pleas of Clarion County
              Criminal Division at No(s): CP-16-CR-0000128-2016


BEFORE:      GANTMAN, P.J., FORD ELLIOTT, P.J.E., and SOLANO, J.

MEMORANDUM BY GANTMAN, P.J.:                         FILED FEBRUARY 22, 2017

        Appellant, James Michael Dehner, appeals from the judgment of

sentence entered in the Clarion County Court of Common Pleas, following his

negotiated guilty plea to open lewdness.1 We affirm.

        The relevant facts and procedural history of this case are as follows.

On March 10, 2016, the Commonwealth charged Appellant with three counts

of open lewdness and one count each of dissemination of sexual materials to

a minor and corruption of minors.              The charges stemmed from several

incidents where Appellant watched pornography and masturbated in front of

twelve-year-old Victim.       On July 6, 2016, Appellant entered a negotiated


____________________________________________


1
    18 Pa.C.S.A. § 5901.
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guilty    plea   to   one   count    of   open   lewdness,   in   exchange   for   the

Commonwealth’s recommendation that the court impose a sentence in the

standard range of the sentencing guidelines and dismiss the remaining

charges against Appellant.          Immediately after acceptance of the plea, the

court sentenced Appellant in accordance with the plea agreement to a term

of six (6) to twelve (12) months’ imprisonment.              The court imposed the

sentence consecutive to an unrelated sentence Appellant was serving at the

time.

         On July 26, 2016, Appellant filed a motion to file a post-sentence

motion nunc pro tunc. The court granted Appellant’s motion to file the nunc

pro tunc post-sentence motion that same day. The court ultimately denied

Appellant’s nunc pro tunc post-sentence motion, which asked the court to

impose Appellant’s sentence concurrent to his unrelated sentence and make

Appellant work-release eligible. Appellant timely filed a notice of appeal on

August 15, 2016. On August 18, 2016, the court ordered Appellant to file a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b). Appellant’s counsel filed a statement of intent to file an Anders

brief pursuant to Pa.R.A.P. 1925(c)(4) on August 26, 2016. On November

23, 2016, counsel filed a petition for leave to withdraw as counsel in this

Court.

         As a preliminary matter, counsel seeks to withdraw his representation

pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d


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493 (1967) and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349

(2009). Anders and Santiago require counsel to: (1) petition the Court for

leave to withdraw, certifying that after a thorough review of the record,

counsel has concluded the issues to be raised are wholly frivolous; (2) file a

brief referring to anything in the record that might arguably support the

appeal; and (3) furnish a copy of the brief to the appellant and advise him of

his right to obtain new counsel or file a pro se brief to raise any additional

points the appellant deems worthy of review. Santiago, supra at 173-79,

978 A.2d at 358-61.          Substantial compliance with these requirements is

sufficient.   Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.

2007). After establishing that counsel has met the antecedent requirements

to withdraw, this Court makes an independent review of the record to

confirm that the appeal is wholly frivolous. Commonwealth v. Palm, 903

A.2d 1244, 1246 (Pa.Super. 2006).

       In Santiago, supra, our Supreme Court addressed the briefing

requirements where court-appointed appellate counsel seeks to withdraw

representation:

          Neither Anders nor McClendon[2] requires that counsel’s
          brief provide an argument of any sort, let alone the type of
          argument that counsel develops in a merits brief. To
          repeat, what the brief must provide under Anders are
          references to anything in the record that might arguably
          support the appeal.
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2
    Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).



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                                  *    *    *

         Under Anders, the right to counsel is vindicated by
         counsel’s examination and assessment of the record and
         counsel’s references to anything in the record that
         arguably supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the 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.

Id. at 178-79, 978 A.2d at 361.

      Instantly, Appellant’s counsel filed a petition to withdraw. The petition

states counsel conducted a conscientious review of the record and

determined the appeal is wholly frivolous. Counsel also supplied Appellant

with a copy of the brief and a letter explaining Appellant’s right to retain new

counsel or to proceed pro se to raise any additional issues Appellant deems

worthy of this Court’s attention. (See Letter to Appellant, dated November

14, 2016, attached to Petition for Leave to Withdraw as Counsel).        In the

Anders brief, counsel provides a summary of the facts and procedural

history of the case.   Counsel’s argument refers to relevant law that might

arguably support Appellant’s issues. Counsel further states the reasons for

his conclusion that the appeal is wholly frivolous.    Therefore, counsel has

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substantially complied with the requirements of Anders and Santiago.

        Counsel raises the following issue on Appellant’s behalf:

           ARE THERE ANY ISSUES THAT APPELLANT CAN RAISE,
           THAT MIGHT ARGUABLY SUPPORT AN APPEAL OF HIS
           SENTENCE FOLLOWING A VOLUNTARY GUILTY PLEA?

              A. WAS ANY ERROR COMMITTED IN THE
              COMMONWEALTH’S FAILURE TO MIRANDIZE []
              APPELLANT?

              B. WAS ANY ERROR COMMITTED IN HOLDING
              APPELLANT’S PRELIMINARY HEARING AFTER 14
              DAYS OF HIS PRELIMINARY ARRAIGNMENT?

(Anders Brief at 4).

        In the Anders brief, counsel argues Appellant waived any challenge to

the alleged Miranda3 violation or the delay between his preliminary

arraignment and preliminary hearing due to Appellant’s knowing and

voluntary guilty plea. Counsel concludes Appellant cannot raise these claims

on appeal. We agree.

        The principles surrounding Miranda warnings are well settled:

           The prosecution may not use statements stemming from a
           custodial interrogation of a defendant unless it
           demonstrates that he was apprised of his right against
           self-incrimination and his right to counsel. Thus, Miranda
           warnings are necessary any time a defendant is subject to
           a custodial interrogation. …[T]he Miranda safeguards
           come into play whenever a person in custody is subjected
           to either express questioning or its functional equivalent.
           Moreover, in evaluating whether Miranda warnings were

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3
    Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d. 694.



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        necessary, a court must consider the totality of the
        circumstances.

        In conducting the inquiry, [a court] must also keep in mind
        that not every statement made by an individual during a
        police encounter amounts to an interrogation. Volunteered
        or spontaneous utterances by an individual are admissible
        even without Miranda warnings.

Commonwealth v. Gaul, 590 Pa. 175, 180, 912 A.2d 252, 255 (2006),

cert. denied, 552 U.S. 939, 128 S.Ct. 43, 169 L.Ed.2d 242 (2007) (internal

citations and quotations marks omitted).

     Pennsylvania Rule of Criminal Procedure 540 explains the time

requirements for scheduling a preliminary hearing as follows:

        Rule 540. Preliminary Arraignment

                                 *    *    *

        (G) Unless the preliminary hearing is waived by a
        defendant who is represented by counsel, or the attorney
        for the Commonwealth is presenting the case to an
        indicting grand jury pursuant to Rule 556.2, the issuing
        authority shall:

           (1) fix a day and hour for a preliminary hearing
           which shall not be later than 14 days after the
           preliminary arraignment if the defendant is in
           custody and no later than 21 days if not in custody
           unless:

              (a) extended for cause shown; or

              (b) the issuing authority fixes an earlier date
              upon the request of the defendant or defense
              counsel with the consent of the complainant
              and the attorney for the Commonwealth…

Pa.R.Crim.P. 540(G)(1).    Violation of Rule 540(G)(1) does not require


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automatic discharge of an accused if his preliminary hearing is not scheduled

within the requisite amount of time.     Commonwealth v. DeCosey, 371

A.2d 905, 907 (Pa.Super. 1977).        Significantly, “courts have regularly

refused to dismiss prosecutions and discharge defendants based on technical

violations of the criminal procedural rules in the absence of a demonstration

of prejudice.” Commonwealth v. Bowman, 840 A.2d 311, 317 (Pa.Super.

2003).

     Significantly, “[a] plea of guilty effectively waives all nonjurisdictional

defects and defenses.” Commonwealth v. Gibson, 561 A.2d 1240, 1242

(Pa.Super. 1989), appeal denied, 525 Pa. 642, 581 A.2d 568 (1990). “When

a defendant pleads guilty, he waives the right to challenge anything but the

legality of his sentence and the validity of his plea.”   Commonwealth v.

Jones, 593 Pa. 295, 308, 929 A.2d 205, 212 (2007).             Here, Appellant

challenges the Commonwealth’s alleged failure to inform Appellant of his

Miranda rights plus he complains about the delay between his preliminary

arraignment and preliminary hearing.       Nevertheless, Appellant does not

claim his guilty plea was coerced by the alleged Miranda violation or the

delay prior to his preliminary hearing.      Further, nothing in the record

suggests the police obtained a confession from Appellant or conducted an

interview of Appellant at any time during the case. Additionally, Appellant

fails to argue any prejudice resulted from the delay between his preliminary

arraignment and preliminary hearing.       Therefore, Appellant’s claims are


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waived for purposes of our review.    See id.    Following our independent

review of the record, we conclude the appeal is frivolous. See Palm, supra.

Accordingly, we affirm the judgment of sentence and grant counsel’s petition

to withdraw.

     Judgment of sentence affirmed; counsel’s petition to withdraw is

granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/22/2017




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