J-S58021-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA


                      v.

MYGOD KELLY

                           Appellant                        No. 2014 MDA 2015


          Appeal from the Judgment of Sentence October 16, 2015
             In the Court of Common Pleas of Luzerne County
            Criminal Division at No(s): CP-40-CR-0003342-2014



BEFORE: GANTMAN, P.J., BOWES AND PLATT,* JJ.

MEMORANDUM BY Bowes, J.:                               FILED SEPTEMBER 09, 2016

      Mygod Kelly appeals from the judgment of sentence of twenty-four to

forty-eight months imprisonment, with RRRI eligibility set at eighteen

months. The sentence was imposed after Appellant entered a guilty plea to

two counts of possession of a controlled substance (cocaine) with intent to

deliver   (“PWID”).        Counsel   has   filed   a    petition   to   withdraw   from

representation and a brief pursuant to Anders v. California, 386 U.S. 738

(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We

grant counsel’s petition to withdraw and affirm.

      Based upon the following events, Appellant was charged with

possession of a firearm by a prohibited person and two counts of PWID. In

August 2014, Yshawn Seabrook was a fugitive wanted for a homicide that he

* Retired Senior Judge assigned to the Superior Court.
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committed in New York.       Investigating authorities obtained information

linking Seabrook to 54 Reno Lane, Wilkes-Barre.        On August 13, 2014,

United States Marshals, Wilkes-Barre Police, and New York police went to 54

Reno Lane in search of Seabrook.        When they arrived, Appellant and

Kenneth Williams were sitting on the front porch.          Williams told the

authorities that he was renting the residence, and Appellant reported that he

had been living there for two months. Both men denied knowing Seabrook,

but they granted the police and federal marshals permission to search the

home for the fugitive.

      Pursuant to that consensual search, the authorities observed a plate of

cocaine and two guns. Appellant and Williams were arrested, and, during a

search incident to his arrest, Appellant was found in possession of cocaine,

which was inside knotted plastic baggies, and $190 in cash.       Thereafter,

police obtained a search warrant for 54 Reno Lane, and recovered the

aforementioned plate and weapons as well as drug-dealing paraphernalia.

Appellant had criminal convictions, including several for drug-trafficking

offenses.

      After the charges were filed, Appellant litigated an unsuccessful motion

to suppress all the evidence seized from his person and at 54 Reno Lane.

The firearms charge was thereafter severed from the two counts of PWID for

purposes of trial.   On August 3, 2015, the day that the jury trial was

scheduled, Appellant pled guilty to one count of PWID for possession of 5.78

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grams of cocaine and another count of PWID for possession of 11.54 grams

of cocaine.   N.T. Guilty Plea, 8/3/15, at 19.    The firearms offense was

withdrawn. Both PWIDs were ungraded felonies with a maximum penalty of

ten years imprisonment, and, while there was no agreement as to the

maximum sentence to be imposed, the sentence on each offense had to be

imposed concurrently to each other. Id. The Commonwealth also indicated

that it would not object to a sentence of intermediate punishment.          A

presentence report was ordered.

     The matter proceeded to sentencing on October 16, 2015, and the

court had reviewed the presentence report.     Appellant had a prior record

score of three and the standard range of the guidelines for both offenses

was eighteen to twenty-four months.       Appellant received a sentence of

eighteen to thirty-six months imprisonment for the PWID of 5.78 grams of

cocaine and a concurrent sentence of twenty-four to forty-eight months for

the PWID of 11.54 grams of cocaine. The sentencing court made Appellant

RRRI eligible, with the RRRI minimum being eighteen months.         Appellant

was informed of his post-sentencing rights, including that he had to file a

post-sentence motion within ten days. N.T. Sentencing, 11/16/15, at 9. No

objection to the sentence was raised during the October 16, 2015

proceeding.

     Appellant did not file a post-sentence motion, but instituted this timely

direct appeal. As noted, counsel has moved to withdraw. Since we do not

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consider the merits of an issue raised in an Anders brief without first

reviewing a request to withdraw, we now address counsel’s petition to

withdraw. Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.Super. 2013)

(en banc). In order to be permitted to withdraw, counsel must meet three

procedural requirements: 1) petition for leave to withdraw and state that,

after making a conscientious examination of the record, counsel has

concluded that the appeal is frivolous; 2) provide a copy of the Anders brief

to the defendant; and 3) inform the defendant that he has the right to retain

private counsel or raise, pro se, additional arguments that the defendant

deems worthy of the court’s attention. Id.

      Counsel’s petition to withdraw states that he made a conscientious

examination of the record and determined that this appeal is frivolous.

Attached to the petition to withdraw is a copy of a letter that counsel sent to

Appellant. In the letter, counsel indicated that he furnished Appellant a copy

of the brief and petition to withdraw.   Counsel also told Appellant that he

had the right to hire a private attorney and urged Appellant to take that

action as soon as possible.        Counsel then informed Appellant that,

alternatively, he could represent himself for purposes of this appeal and

raise any issues pro se that he felt had merit.      Accordingly, counsel has

complied with the procedural aspects of Anders.




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        We   next   examine   whether    counsel’s   Anders   brief   meets   the

substantive elements of Santiago. Pursuant to Santiago, 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, supra at 361.

        Counsel’s brief is compliant with Santiago. It contains a summary of

the procedure and facts and presents sentencing issues that could arguably

support the appeal. Counsel references case law indicating why he arrived

at the conclusion that the issues are frivolous. The two issues presented on

appeal are “1. Should the Court accept jurisdiction to review [Appellant’s]

sentence? 2. Did the trial court abuse its discretion in sentencing

[Appellant]?” Appellant’s brief at 3.

        Appellant thus raises challenges to the discretionary aspects of his

sentence.     A defendant does not enjoy an appeal as of right from the

discretionary aspects of his sentence. Commonwealth v. Giordano, 121

A.3d 998 (Pa.Super. 2015). Instead, merits review of such a claim can be

obtained only when a four-part test is satisfied: 1) there is a timely appeal;

2) the issue is preserved in the trial court proceedings and in a Pa.R.A.P.



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1925(b) statement; 3) the brief includes a concise statement of the reasons

relied upon for allowance of appeal to this Court from the discretionary

aspects of a sentence as required by Pa.R.A.P. 2119(f); and 4) that

statement raises the existence of a substantial question that the sentence is

not appropriate under the Sentencing Code. Id.

      Herein, Appellant cannot obtain review of the discretionary aspects of

his sentence in that no challenge in that respect was preserved during the

trial court proceedings. Appellant raised no objection to the sentence when

it was imposed, and he failed to file a post-sentence motion.    Hence, any

contention relating to the discretionary aspects of his sentence is waived.

Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.Super. 2003) (citation

omitted) (“[I]ssues challenging the discretionary aspects of sentencing must

be raised in a post-sentence motion or by raising the claim during the

sentencing proceedings. Absent such efforts, an objection to a discretionary

aspect of a sentence is waived.”).

      We have conducted an independent review of the record, as required

by Commonwealth v. Flowers, 113 A.3d 1246, 1249 (Pa.Super. 2015),

and have concluded that there are no preserved issues of arguable merit

that can be raised in this appeal.         Hence, we concur with counsel’s

assessment and allow him to withdraw.

      Petition of Michael C. Kostelaba, Esquire, to withdraw is granted.

Judgment of sentence affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/2016




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