J-S94004-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

RAYMOND MARTINEZ

                            Appellant                  No. 248 MDA 2016


            Appeal from the Judgment of Sentence January 12, 2016
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0003485-2015


BEFORE: LAZARUS, J., RANSOM, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.:                         FILED JANUARY 10, 2017

        Raymond Martinez appeals from his judgment of sentence, entered in

the Court of Common Pleas of Berks County, after entering a negotiated

guilty plea to third-degree murder1 and conspiracy to commit burglary.2 In

accordance with his plea agreement, Martinez was sentenced to 20-40 years

in prison for the murder charge and a consecutive sentence of 5-10 years’

imprisonment for the conspiracy charge.        Conflict counsel has also filed a




____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2502(c).
2
    18 Pa.C.S. § 903(a)(2); 3502(a)(1).
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motion to withdraw on appeal, pursuant to Anders.3 After careful review,

we affirm and grant counsel’s motion.

       The trial court set forth the relevant facts of the case as follows:

       During the early morning hours of November 7, 2014, the
       Defendant and several accomplices attempted to rob John
       Villareal, a drug dealer, at his home in Reading. Pursuant to
       their plan, a female minor purchased drugs from Mr. Villareal
       and as she left his apartment, the Defendant attempted to force
       open the door and enter the premises. However, Mr. Villareal
       managed to close the door before the Defendant could gain
       entrance. The Defendant then fired several shots through the
       door, one of which killed Mr. Villareal.

       During the course of their investigation, the Reading Police
       discovered interior and exterior video surveillance cameras at
       Mr. Villareal’s apartment house. The interior camera recorded
       the minor’s visit to the apartment and a masked man shooting at
       the apartment door. The police located the minor, who admitted
       her involvement in the crime, and identified the Defendant as
       the masked man in the video who fired the shots. The police
       obtained an arrest warrant for the Defendant and he was later
       apprehended. In addition to murder of the third degree and
       conspiracy to commit burglary, the Defendant was also charged
       with murder in the second degree, 18 Pa.C.S.[] Section 2502(b);
       robbery, 18 Pa.C.S. [§]903(a)(2); criminal attempt to commit
       burglary, 18 Pa.C.S. [§]901(a); firearms not [to] be carried
       without a license, 18 Pa.C.S.[] Section 6106(a)(1); and
       possessing instruments of crime, 18 Pa.C.S.[] Section 907(a).

       On January 12, 2016, the first day of trial, the Defendant
       pleaded guilty to murder in the third degree and conspiracy to
       commit burglary.4 [During his guilty plea hearing, the court
____________________________________________


3
   See Anders v. California, 386 U.S. 738 (1967); see also
Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981) (setting forth
requirements for counsel to withdraw on direct appeal).
4
 In exchange for his plea, the Commonwealth dismissed a second-degree
murder charge against Martinez.
(Footnote Continued Next Page)


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      played the video taken at the victim’s apartment on the day of
      the murder. Martinez admitted he was one of the people on the
      video and that he was wearing a mask and holding a firearm in
      his right hand. N.T. Guilty Plea/Sentencing Hearing, 1/12/16, at
      13.]. Pursuant to a plea agreement, the Court sentenced the
      Defendant to consecutive sentences of 20 to 40 years for murder
      of the third degree and 5 to 10 years for conspiracy to commit
      burglary for a total period of incarceration of 25 to 50 years.

Trial Court Opinion, 6/13/16, at 1-2.

      From January through February 2016, Martinez filed several pro se

motions despite the fact that he was still represented by counsel.              On

January 22, 2016, Martinez filed a pro se Motion for Modification of Sentence

claiming that he “was of the understanding that all sentences were to run

concurrent, and that at the time of sentencing [he] was emotionally and

mentally repentive [sic] of all else.”            Pro Se Motion for Modification of

Sentence, 1/22/16, at 1.          In his motion, Martinez alluded to the fact that

because the court did not have the benefit of a presentence investigation

report it was unaware of his mental health “symptoms” which would have

been a mitigating sentencing factor and justified a concurrent sentence.        On

February 11, 2016, Martinez filed a pro se notice of appeal from his

judgment of sentence.

      On February 16, 2016, Martinez filed a pro se Motion for Appointment

of Counsel. On February 17, 2016, the Court denied Defendant’s Motion for

Modification of Sentence.            Martinez and plea counsel, Andrew Justin

                       _______________________
(Footnote Continued)




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Thompson, Esquire, filed a joint motion to remove Attorney Thompson from

the case. In response to the joint motion to withdraw, the court conducted

an on-the-record colloquy to determine whether Martinez wished to proceed

with counsel, pro se, or apply for appointment of new counsel.            See

Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988).               Following the

Grazier hearing, the court entered an order on April 6, 2016 permitting

counsel to withdraw and appointing conflict-counsel, Kevin Feeney, Esquire,

to assist Martinez in his appeal and any subsequent proceedings.

      On May 19, 2016, Attorney Feeney filed a Pa.R.A.P. 1925(b) Concise

Statement of Errors Complained of on Appeal noting that all the issues

raised by Martinez concerned potential ineffectiveness of plea counsel

(failure to locate/interview witnesses; fee issues; and advice to plead/accept

plea) and that such claims should be raised in a timely post-conviction relief

petition, not on direct appeal.

      On appeal, Martinez presents the following issues for our review:

      (1)   Did the trial court err in denying the post[-]sentence
            motion?

      (2)   Should appeal counsel be permitted to withdraw?

      Attorney Feeney has filed a petition to withdraw pursuant to Anders.

In order for counsel to withdraw from an appeal pursuant to Anders, certain

requirements must be met, and counsel must:

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




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      (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.

Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super. 2010) (citing

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009)).

      Instantly, Attorney Feeney has complied with the dictates of Anders,

Daniels and Santiago. Therefore, we now turn to the issues counsel has

stated arguably support an appeal.

      It is well settled that “a plea of guilty amounts to a waiver of all

defects and defenses except those concerning the jurisdiction of the court,

the legality of the sentence, and the validity of the guilty plea.”

Commonwealth v. Reichle, 589 A.2d 1140, 1141 (Pa. Super. 1991). The

record reflects that Martinez entered a negotiated plea with regard to

sentence and charges. N.T. Guilty Plea/Sentencing Hearing, 1/12/16, at 14

(trial judge stating to district attorney, “All right.   Then I’m prepared to

receive the negotiated plea agreement and what would that be?”). That plea

agreement included an arrangement to run Martinez’s sentences consecutive

to one another. Id.

      As conflict-counsel correctly recognizes, any claims of counsel’s

ineffectiveness that were raised in Martinez’s Pa.R.A.P. 1925(b) statement of

matters complained of on appeal must be deferred to collateral review.


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Martinez neither knowingly nor expressly waived his rights to seek PCRA

review from his conviction and sentence. See Commonwealth v. Holmes,

79 A.3d 562 (Pa. 2013) (setting forth two limited exceptions to general rule

deferring ineffectiveness claims until collateral review); Commonwealth v.

Grant, 813 A.2d 726 (Pa. 2002) (setting forth general rule deferring

ineffectiveness claims until collateral review). Moreover, with regard to the

voluntariness of his plea, we note that at the plea hearing Martinez indicated

that he understood his sentences could be imposed consecutively to one

another and that the statutory maximum sentence for third-degree murder

is 40 years of incarceration. Id. at 11, 15. Therefore, we fail to find that he

entered   his   guilty   plea   unwillingly,   unknowingly   or   unintelligently.

Commonwealth v. Braxton, 600 A.2d 198 (Pa. Super. 1991).

      Accordingly, we agree with counsel that Martinez’s claims on appeal

are frivolous; counsel should be permitted to withdraw.

      Judgment of sentence affirmed.            Motion to withdraw granted.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/10/2017




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