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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA                 1   IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

GERARD     P.   GRAHAM

                             Appellant               No. 1561 MDA 2016


            Appeal from the Judgment of Sentence August 22, 2016
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0000613-2016

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

GERARD     P.   GRAHAM

                             Appellant               No. 1562 MDA 2016


            Appeal from the Judgment of Sentence August 22, 2016
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0003420-2016

BEFORE:     PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                               FILED APRIL 06, 2017

        Gerald   P.   Graham appeals from the judgment of sentence imposed

August 22, 2016, in the Berks County Court of Common Pleas.           The trial

court sentenced Graham to an aggregate term of two and one-half to five

years' imprisonment, following his negotiated guilty plea,   in   two separate
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cases,' to charges of firearms not to be carried without                          a   license, possession

with intent to deliver ("PWID") controlled substances, and possession of

controlled substances.2               Contemporaneous with this appeal, Graham's

counsel seeks to withdraw from representation and has filed an Anders

brief,3 which identifies two issues on appeal:                     (1)       a    request to withdraw

Graham's guilty plea, and (2)              a   challenge to the ineffectiveness of prior

counsel.     For the reasons below, we affirm the judgment of sentence and

grant counsel's petition to withdraw.

        The relevant facts underlying these appeals, as gleaned from the

affidavits of probable cause, are as follows.                  On January 20, 2016, Graham

was stopped for          a    motor vehicle violation, and subsequently found to be                    in

possession of    a       loaded firearm, synthetic marijuana, and promethazine.4

He did not have a license to           carry   a   firearm. Graham was charged at Docket

613-2016 with firearms not to be carried without                         a       license, possession of

controlled    substances           (two counts),         and   two   summary vehicle code



1   By order dated October 11, 2016, this Court consolidated these appeals
sua sponte. See Order, 10/11/2016.

2 See 18 Pa.C.S.         §    6106(a)(1), and 35        P.S. §§   780-113(a)(30) and (a)(16),
respectively.

3 See Anders v. California, 386  U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).

4Promethazine        is a       prescription drug used to treat opioid addiction.                    See
Docket No. 613       -       2016, Criminal Complaint, 3/8/2016, at 7-8.


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violations.5 On June 6, 2016, Graham was sitting in his parked vehicle when

officers responding to an unrelated call detected an odor of synthetic

marijuana emanating from his vehicle.          After further investigation, the

officers found synthetic marijuana and drug paraphernalia in the vehicle. As

a   result of this incident, Graham was charged at Docket No. 3420-2016 with

PWID,     possession   of controlled    substances, and     possession    of   drug

paraphernalia. 6

        On August 22, 2016, Graham entered a negotiated       guilty plea   in both

cases. At Docket No. 613-2016, he pled guilty to one count each of firearms

not to be carried without   a   license and possession of controlled substances,

and at Docket No. 3420-2015, he entered          a   guilty plea to one count of

PWID.     In exchange for the plea, the Commonwealth agreed to        a   standard

range sentence of two and one-half to five years' imprisonment for the

firearms charge, and concurrent standard range sentences for the drug

offenses. The trial court imposed the negotiated sentence that same day.'




5See 18 Pa.C.S. § 6106(a)(1), 35 P.S. § 780-113(a)(16), and 75 Pa.C.S. §§
3334(a) (turning movements and required signals) and 4524(e)(i) (sun
screening obstruction), respectively.

6   See 35 P.S. §§ 780-113(a)(30), (a)(16), and (a)(32).
7
  Specifically, Graham was sentenced to concurrent terms of one to five
years' imprisonment for PWID and six to 24 months' imprisonment for
simple possession.



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      On      August   31,   2016,     Graham        filed     a   pro   se   petition   for

reconsideration/modification of his sentence, asserting that his guilty plea

was coerced by counsel.          However, since Graham was still represented by

plea counsel, the trial court did not consider the petition, but rather,

forwarded it to counsel. Thereafter, on September 6, 2016, Graham filed                   a

pro se letter in the trial court, requesting the court allow him to withdraw his

guilty plea and appoint new counsel.             Again, the court forwarded the letter

to counsel.

      Thereafter, plea counsel requested permission to withdraw based on

Graham's allegations of ineffectiveness.           The court granted the request on

September 6, 2016, and promptly appointed conflict counsel. On September

22, 2016, conflict counsel filed        a   post -sentence motion nunc pro tunc,

challenging the discretionary aspects of his sentence and the ineffectiveness

of plea counsel. The same day, counsel filed            a    notice of appeal to preserve

Graham's direct appeal rights. The next day, the trial court denied counsel's

request to proceed nunc pro tunc.8

      When counsel files     a   petition to withdraw and accompanying Anders

brief, we must first examine the request to withdraw before addressing any




8 On October 11, 2016, the trial court ordered Graham to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Counsel responded on October 19, 2016, by filing a statement of his intent
to file an Anders brief in lieu of a Rule 1925(b) statement. See Pa.R.A.P.
1925(c)(4).


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of the substantive issues raised on appeal.          Commonwealth v. Bennett,
124 A.3d 327, 330 (Pa. Super. 2015).               Here, our review of the record

reveals counsel has           substantially complied with the requirements for

withdrawal outlined in Anders, supra, and its progeny.                   Specifically,

counsel requested permission to withdraw based upon her determination

that the appeal      is   "wholly frivolous,"9 filed an Anders brief pursuant to the

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

furnished    a   copy of the Anders brief to Graham and advised Graham of his

right to retain new counsel or proceed pro se.                    Commonwealth v.
Cartrette,       83 A.3d 1030, 1032 (Pa. Super. 2013) (en banc).       Moreover, our

review of the record reveals no correspondence from Graham supplementing

the Anders brief.          Accordingly, we will proceed to examine the record and

make an          independent determination of whether the appeal           is   wholly

frivolous.

        The first issue       identified in counsel's Anders brief asserts that

Graham's guilty plea was "involuntary" due to the ineffectiveness                   of

preliminary hearing and plea counsel. See Anders Brief at 10. Specifically,

Graham argues if preliminary hearing counsel had              a   court stenographer

transcribe the hearing, "guilty plea counsel would have been able to detect

the inconsistent averments in the police criminal complaint that were




9   See Petition to Withdraw as Counsel, 12/1/2016, at       ¶ 10.



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inconsistent with later police statements."     Id. Furthermore,      he claims plea

counsel "coerced" him into accepting    a   guilty plea by the following actions:

        [counsel] advis[ed] him that the pretrial motion would have
        been unsuccessful (which he now disputes) and further [] she
        emotionally coerced him by telling him his girlfriend thought he
        should take a plea (which he believes his girlfriend did not say).
Id.
        We find Graham's challenge to his guilty plea is waived due to his

failure to contest the voluntariness of the plea either during the plea

colloquy or in    a   timely filed post -sentence motion.      As this Court has

explained:

        A defendant wishing to challenge the    voluntariness of a guilty
        plea on direct appeal must either object during the plea colloquy
        or file a motion to withdraw the plea within ten days of
        sentencing. Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i).      Failure to
        employ either measure results in waiver. Commonwealth v.
        Tareila, 895 A.2d 1266,1270 n. 3 (Pa.Super.2006).
Commonwealth v. Lincoln, 72 A.3d 606, 609-610                  (Pa. Super. 2013),

appeal denied, 87 A.3d 319 (Pa. 2014).

        We note, however, that Graham's counsel did attempt to preserve this

claim by requesting permission from the trial court to file       a   post -sentence

motion nunc pro tunc.

        To be entitled to file a post -sentence motion nunc pro tunc, a
        defendant must, within 30 days after the imposition of sentence,
        demonstrate sufficient cause, i.e., reasons that excuse the late
        filing. ... When the defendant has met this burden and has shown
        sufficient cause, the trial court must then exercise its discretion
        in deciding whether to permit the defendant to file the post -
        sentence motion nunc pro tunc. If the trial court chooses to



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        permit a defendant to file a post -sentence motion nunc pro tunc,
        the court must do so expressly.
Commonwealth v. Dreves, 839 A.2d 1122, 1128                             (Pa. Super. 2003) (en

banc) (footnote omitted).           Here, the trial court denied nunc pro tunc relief,

and, accordingly, this claim is not preserved for our review.1°

        The   second      issue     identified    in       the   Anders brief asserts the
ineffectiveness assistance of prior counsel.                     Specifically, Graham alleges

prior counsel:         (1) failed to employ            a   stenographer at the preliminary

hearing; (2) withdrew          a   pretrial motion at Docket No. 613-2016; (3) lied

when she told him his girlfriend wanted him to enter                       a   guilty plea; (4)

improperly caused delay in his case; (5) failed to recognized his "original

complaints       may    have       been   tampered          with   or   contained   averments

10
   In the Anders brief, counsel asks this Court to address Graham's guilty
plea challenge on the merits based on Graham's pro se filing and
dissatisfaction with plea counsel. However, we remind counsel that a pro se
motion filed while a defendant is still represented by counsel is "a nullity,
having no legal effect." Commonwealth v. Nischan, 928 A.2d 349, 355
(Pa. Super. 2007), appeal denied, 936 A.2d 40 (Pa. 2007).

       Moreover, even if we were to consider Graham's argument, we would
conclude he is entitled to no relief. In his written plea colloquies, Graham
acknowledged that he was "pleading guilty of [his] own free will."
Statements Accompanying Defendant's Request to Enter a Guilty Plea,
8/22/2016, Docket Nos. 613-2016 and 3420-2016, at ¶ 15. Further, during
the oral colloquy, Graham stated that (1) he prepared and signed the written
plea colloquies, (2) "everything" in the documents was true, and (3) he was
"satisfied with the services [he] received from [his] attorney[.]" N.T.,
8/22/2016, at 5. "A defendant is bound by the statements made during the
plea colloquy, and a defendant may not later offer reasons for withdrawing
the plea that contradict statements made when he pled." Commonwealth
v. Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012), appeal denied, 63 A.3d
773 (Pa. 2013).


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inconsistent with later police statements[;]" and (5) coerced him into

entering an involuntary plea. Anders Brief at 5.

        However, it is well -established that ineffectiveness claims must be

deferred until collateral review.    In Commonwealth v. Holmes, 79 A.3d

562 (Pa. 2013), the Pennsylvania Supreme Court reaffirmed the general rule

first set forth   in   Commonwealth v. Grant, 813 A.2d 726         (Pa. 2002),   that
"claims of ineffective assistance of counsel are to be deferred to PCRA

review; trial courts should not entertain claims of ineffectiveness upon post -

verdict motions; and such claims should not be reviewed upon direct

appeal."    Holmes, supra, 79 A.3d at 576.            Although the Holmes Court

recognized two exceptions to that general rule, neither is applicable here.11

Accordingly, we dismiss Graham's ineffectiveness claims as premature,

without prejudice to him to raise them     in a   timely collateral proceeding. See
also Commonwealth v. Reid, 117 A.3d 777, 787                    (Pa.   Super. 2015)

(finding ineffectiveness claims raised on direct appeal were premature

pursuant to Holmes).



11 The Holmes Court limited those exceptions to the following: (1) where
the trial court determines that a claim of ineffectiveness is "both meritorious
and apparent from the record so that immediate consideration and relief is
warranted[;]" or (2) where the trial court finds "good cause" for unitary
review, and the defendant makes a "knowing and express waiver of his
entitlement to seek PCRA review from his conviction and sentence, including
an express recognition that the waiver subjects further collateral review to
the time and serial petition restrictions of the PCRA." Holmes, supra, 79
A.3d at 564, 577 (footnote omitted).


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        Accordingly,    because we   agree   with counsel's   assessment   that
Graham's appeal is wholly frivolous, we affirm the judgment of sentence and

grant counsel's petition to withdraw.

        Judgment of sentence affirmed.       Petition to withdraw as counsel

granted.

Judgment Entered.




J    seph D. Seletyn,
Prothonotary


Date: 4/6/2017




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