J-S37021-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

SHAHIEN ALLEN

                            Appellant               No. 2207 MDA 2013


     Appeal from the Judgment of Sentence entered November 6, 2008
           In the Court of Common Pleas of Lackawanna County
             Criminal Division at No: CP-35-CR-0002257-2007


BEFORE: LAZARUS, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                        FILED AUGUST 20, 2014

       Shahien Allen, a/k/a Shaheed McWilliams, appeals nunc pro tunc from

the judgment of sentence imposed after he pleaded guilty to criminal use of

                                                     nsel   has    filed   an

Anders/Santiago1 brief and petitioned to withdraw as counsel. We affirm

and grant the petition to withdraw.

       On October 10, 2007, Appellant pleaded guilty to one count of criminal

use of a communications facility, 18 Pa.C.S.A. § 7512(a). On November 6,

2008, he was sentenced to 18 to 60 months in prison.           We dismissed


____________________________________________


1
  Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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statement.2 Appellant then filed a petition under the Post Conviction Relief

Act (PCRA), 42 Pa.C.S.A. §§ 9541-46.             As relief, the trial court restored

                                                                               nunc

pro tunc to this Court.          Counsel directs our attention to one issue: a

                                                      lty plea counsel.3



withdraw from representation.          To withdraw under Anders and Santiago,

counsel must (1) petition this Court for leave to withdraw after certifying

that a thorough review of the record indicates the appeal is frivolous; (2) file

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

appeal; and (3) give the appellant a copy of the brief and advise the

appellant of the right to obtain new counsel or file a pro se brief to raise any

additional points for review. Commonwealth v. Millisock, 873 A.2d 748,

751 (Pa. Super. 2005). Additionally, the Anders/Santiago brief must:

       (1) provide a summary of the procedural history and facts, with
       citations to the record;
____________________________________________


2
  Counsel later testified that Appellant had requested withdrawal of the
appeal. N.T. PCRA Hearing, 11/18/13, at 6, 10.
3
  By way of explanation, Appellant had two lawyers in addition to current
                                                              hdrew from
representation after he was charged with crimes by the federal government

represented him at sentencing, post-sentence, and on the initial direct
appeal.



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       (2) refer to anything in the record that counsel believes arguably
       supports the appeal;


       and


       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.

       We    find   that   counsel     has     met   the   procedural   and   technical

requirements of Anders and Santiago. Counsel has petitioned for leave to

withdraw,4 filed a brief that refers us to anything that might support the

appeal, and informed Appellant of his right to hire a new lawyer or file a pro

se                                                              s with the technical

____________________________________________


4
  Counsel appears to misapprehend the nature of the current proceedings.
His petition seeks leave to withdraw under Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.3d 213 (Pa.
Super. 1988) (en banc). Turner/Finley, however applies only in post-
conviction proceedings and appeals therefrom. See, e.g., Commonwealth
v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011).                 Under
Turner/Finley, counsel seeking to withdraw need only file a motion and a
   -                Id. In contrast, counsel may withdraw on direct appeal
                                         See Commonwealth v. Burwell,
42 A.3d 1077, 1080 (Pa. Super. 2012).          Also, counsel must file an
Anders/Santiago brief, the requirements of which are more formalistic and
arduous than a no-merit letter. Id.; see also Widgins, 29 A.3d at 817 n.2
(noting that an Anders
than a no-merit letter).

This proceeding is a direct appeal nunc pro tunc not a collateral post-
conviction appeal. Therefore, Anders and Santiago not Tuner/Finley
apply. Couns
petition to withdraw sufficiently comply with Anders and Santiago.



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requirements of Santiago listed above.                 Appellant has filed a pro se



resolve the one issue preserved in the Anders/Santiago brief.

        The sole issue raised challenges the effectiveness of guilty-plea

counsel. We find that it is wholly frivolous. Generally, a defendant cannot

raise   claims    of   ineffective   assistance   of    counsel   on   direct   appeal.

Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002). Rather, a court

may entertain ineffectiveness claims on direct review only if (1) the

defendant waives further review under the PCRA and (2) two limited

circumstances exist, neither of which is present here. See Commonwealth

v. Holmes, 79 A.3d 562, 577-78 (Pa. 2013).                  By successfully seeking

restoration of appellate rights, Appellant has not expressly waived further

PCRA review.5 Thus, the claim is not reviewable on direct appeal.
____________________________________________


5

                                                             that cannot be
raised on direct appeal. As a result, Appellant must file another PCRA
petition, and re-litigate the exact claim that we dismiss here. That re-
litigation will require the appointment of another lawyer, because the next
PCRA petition will b                                  See Commonwealth
v. Karanicolas, 836 A.2d 940, 944 (Pa. Super. 2003). Nothing obligated

so since Appellant wanted to raise only PCRA claims (ineffective assistance
of counsel and the legality of his sentence). See Holmes, 79 A.3d at 576
n.9 (noting that defendants who want to raise only ineffectiveness claims
may forgo a direct appeal and file a PCRA petition); Commonwealth v.
Fowler, 903 A.2d 586, 592 (Pa. Super. 2007) (noting that a challenge to
the legality of a sentence is non-waivable and can be raised for the first time
in a timely PCRA petition).



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       As noted above, Appellant filed a pro se

informing Appellant of the petition to withdraw. In the letter, Appellant

states:

       [Counsel] raised one issue out of all that were contained in the
       P.C.R.A., and the issue that would have been one of the most
       effective was not raised. And that issue is of me being eligible
       for [Recidivism Risk Reduction Incentive (RRRI)] due to the fact
       that I was sentenced on January 19th, 2009 and the RRRI
       effective date was November 24th, 2008. See, Memorandum of
       Law in support of P.C.R.A. petition.       I stated strongly to
       [counsel] that I want this issue raised as well as others but he

       that this [C]ourt take all issues raised in the P.C.R.A. which is on
       file into consideration and make your judgment based on that
       which I have requested be contained in the P.C.R.A.



Record Pursuant to Turner Finley Letter Brief Filed on or About March 24th,

2014, 7/21/14, at 1.



Appellant correctly states that the RRRI act became effective on November

24, 2008.     See Commonwealth v. Robinson, 7 A.3d 868, 870 n.1 (Pa.

Super. 2010) (citing Act of Sept. 25, 2008, P.L. 1026, No. 81 § 9). He is

incorrect, however, regarding his sentencing date, which was November 6,

2008      not January 19, 2009. Numerous documents in the certified record,

including the written judgment of sentence, confirm the date. 6        Appellant
____________________________________________


6

second lawyer, i.e., the initial appeal that we dismissed, which erroneously




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could not have been RRRI eligible because RRRI did not exist when he was

actually sentenced.7




counsel. This Court cannot review claims of ineffective assistance of counsel

on direct appeal.       Holmes, 79 A.3d at 576; Grant, 813 A.2d at 738.

Appellant may be entitled to review of his PCRA claims, but he must first file

another PCRA petition. See Karanicolas, 836 A.2d at 944.

                                                         Anders/Santiago Brief

                                                                         pro se

response, we find that this appeal is wholly frivolous. Therefore, we affirm

the judgment of sentence and

       Judgment of sentence affirmed.            Petition to withdraw as counsel

granted.




____________________________________________


7
  In Robinson, 7 A.3d at 870, we held that the RRRI act can apply
retroactively, meaning to cases where the defendant committed the crimes

The defendant in Robinson
date. Id. at 870,
of the RRRI statute to a defendant who was convicted and sentenced after
the law became effective, as is the case with [Robinson], does not violate
the restrictions set on the retroactive effect o



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J-S37021-14




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/20/2014




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