J-S07025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

AL MUMINY DIAZ

                        Appellant                    No. 55 MDA 2014


         Appeal from the Judgment of Sentence December 3, 2013
             In the Court of Common Pleas of Centre County
           Criminal Division at No(s): CP-14-CR-0000184-2013



BEFORE: BENDER, P.J.E., OLSON and OTT, JJ.

MEMORANDUM BY OLSON, J.:                              FILED JUNE 23, 2015

      Appellant, Al Muminy Diaz, appeals from the judgment of sentence

entered on December 3, 2013, following his jury trial convictions of four

counts of simple possession of a controlled substance and one count each of

possession with the intent to deliver (PWID) and possession of drug

paraphernalia. On appeal, appointed counsel filed a brief that resembled a

hybrid of an advocate’s brief and a brief pursuant to Anders v. California,

386 U.S. 738 (1967). This Court directed appellate counsel, in two separate

orders, to file either an advocate’s brief or a petition for leave to withdraw

and an accompanying Anders brief. Counsel, however, filed a petition for

leave to withdraw as counsel with this Court, relied upon her earlier filed

hybrid brief and sent Appellant a letter erroneously stating this “Court

considered the entire brief that [she] filed to be one under Anders.”
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Anders Letter, 5/11/2015, at 1.            For the reasons that follow, we affirm

Appellant’s     convictions,    but    vacate     his     sentence   and       remand     for

resentencing. We deny counsel’s motion to withdraw without prejudice for

the trial court’s consideration. See generally In the Interest of X.J., 105

A.3d 1 (Pa. Super. 2014).

       We briefly summarize the facts and procedural history of this case as

follows.      Pennsylvania     State    Police    were     conducting     routine   vehicle

registration checks of passing automobiles on Interstate 99 in Centre

County, Pennsylvania when they discovered that Appellant’s vehicle was

registered to a driver with a suspended license. After the police initiated a

traffic stop, an officer detected an odor of marijuana emanating from the

vehicle. Police executed a canine search of the exterior of the vehicle and

were alerted to the presence of narcotics. In a subsequent search executed

by   warrant,     police   uncovered      12     bricks    of   heroin,   19    tablets   of

methamphetamine, five oxycodone pills, a bag of marijuana, and drug

paraphernalia. Appellant was driving with a suspended license.

       On September 9, 2013, the jury found Appellant guilty of the

aforementioned crimes. 1 In addition, the jury specifically determined, on its

verdict slip, the amount of heroin supporting the PWID charge weighed 12.4

grams.     On October 10, 2013, the Commonwealth filed a notice of the

____________________________________________


1
     The trial court also found Appellant guilty of the summary offense of
driving while operating privilege is suspended, 75 Pa.C.S.A. § 1543.



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applicability of a mandatory sentence under 18 Pa.C.S.A. § 7508(a)(7)(ii),

because the jury determined the weight of the heroin for delivery was

between ten and 50 grams.            The trial court sentenced Appellant on

December 3, 2013.         Pursuant to Section 7508(a)(7)(ii), the trial court

imposed      a   mandatory   minimum     sentence   of   five   to   ten   years   of

imprisonment for PWID.        It further imposed consecutive sentences of six

months to one year of incarceration for each of Appellant’s convictions for

simple possession of marijuana, oxycodone, methamphetamine, and drug

paraphernalia.     Appellant’s simple possession of heroin sentence merged

with his sentence for PWID.         The trial court sentenced Appellant to a

concurrent term of 60 days of incarceration for the summary offense of

driving while operating privilege is suspended. In total, Appellant received

an aggregate sentence of seven to 14 years of imprisonment. This timely

appeal resulted.

     On appeal, counsel for Appellant presents the following issues for

review that she deems frivolous under Anders:

        I.       Whether the trial court erred in allowing the trial to
                 proceed prior to the prosecution presenting
                 [Appellant] with all the discovery.     In fact, the
                 prosecution still has not provided all the discovery
                 material to [Appellant].

        II.      Whether the trial court erred in allowing the jury trial
                 to proceed despite [Appellant’s] Rule 600 [rights]
                 being violated. Rule 600 [begins] to run on the date
                 on which the complaint is filed.




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        III.   Whether the trial court erred in disallowing counsel to
               withdraw despite counsel submitting a proper[ly] filed
               motion to withdraw[]that Appellant agreed to.

        IV.    Whether the trial court erred in denying Appellant’s
               request for a mistrial. Upon [the Assistant District
               Attorney’s] request to testify on the stand against []
               Appellant in the presence of the jury, Appellant
               requested a mistrial which was denied by the court.

        V.     Whether the trial court erred in excessively sentencing
               [] Appellant to 7-14 years of imprisonment whereas
               the minimum guidelines indicate 5 years as the
               minimum.

        VI.    Whether the trial court erred in denying [] Appellant
               credit for [the Recidivism Risk Reduction Incentive]
               program as he was not involved in a crime of violence
               nor has a history of crimes of violence.

        VII.   Whether the trial court erred in allowing trial to
               proceed despite the arresting documents being filed
               under an alias not known to [] Appellant.

        VIII. Whether the trial court erred in allowing the trial to
              take place in a venue that had no jurisdiction.
              Although Appellant was arrested in Blair County,
              authorities (prior to obtaining a search warrant) towed
              Appellant’s car to Centre County.

        IX.    Whether the trial court erred in allowing trial to take
               place despite authority’s probable cause affidavit
               being made null and void.

Anders Brief at 7-9.

     Before reviewing the merits of this appeal, however, this Court must

first determine whether counsel has fulfilled the necessary procedural

requirements for withdrawing as counsel. Commonwealth v. Miller, 715

A.2d 1203, 1207 (Pa. Super. 1998).



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      To withdraw under Anders, court-appointed counsel must satisfy

certain technical requirements.    First, counsel must “petition the court for

leave to withdraw stating that, after making a conscientious examination of

the record, counsel has determined that the appeal would be frivolous.”

Miller, 715 A.2d at 1207.     Second, counsel must file an Anders brief, in

which counsel:

        (1) provide[s] a summary of the procedural history and
        facts, with citations to the record; (2) refer[s] to anything in
        the record that counsel believes arguably supports the
        appeal; (3) set[s] forth counsel’s conclusion that the appeal
        is frivolous; and (4) state[s] 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, 978 A.2d at 361.        Finally, counsel must furnish a copy of the

Anders brief to her client and advise the client “of [the client’s] right to

retain new counsel, proceed pro se or raise any additional points worthy of

this Court’s attention.” Commonwealth v. Woods, 939 A.2d 896, 898 (Pa.

Super. 2007).    If counsel meets all of the above obligations, “it then

becomes the responsibility of the reviewing court to make a full examination

of the proceedings and make an independent judgment to decide whether

the appeal is in fact wholly frivolous.”    Santiago, 978 A.2d at 355 n.5,

quoting Commonwealth v. McClendon, 434 A.2d 1185, 1187 (Pa. 1981).

It is only when both the procedural and substantive requirements are

satisfied that counsel will be permitted to withdraw.



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        In the case at bar, counsel has met all of the above procedural

obligations, although it took court orders for her to meet said obligations.2

We must, therefore, review the entire record and analyze whether this

appeal is, in fact, wholly frivolous.

        Upon independent review, we conclude that all of Appellant’s claims,

except for his fifth issue as presented, are frivolous. The trial court correctly

determined that Appellant waived his first, fourth, and seventh issues on

appeal for failing to object contemporaneously at trial. See Pa.R.A.P. 302.

Regarding his second issue, there was no violation of Pa.R.Crim.P. 600

because the trial court granted Appellant’s motion for postponement

excluding 46 days from the computation of the 365 day requirement of Rule

600(A)(2)(a), as well as the 180 day requirement of Rule 600(B)(1).3 In his
____________________________________________


2
    Appellant has not responded to counsel’s petition to withdraw.
3
     Rule 600 provides, in pertinent part:

          (A) Commencement of Trial; Time for Trial
                             *        *            *
          (2) Trial shall commence within the following time periods.

              (a) Trial in a court case in which a written complaint
              is filed against the defendant shall commence within
              365 days from the date on which the complaint is
              filed.
                               *        *           *
          (B) Pretrial Incarceration

          Except in cases in which the defendant is not entitled to
          release on bail as provided by law, no defendant shall be
          held in pretrial incarceration in excess of
(Footnote Continued Next Page)


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third issue, Appellant maintains that the trial court erred in denying

counsel’s request to withdraw. This issue lacks merit because “an appellant

cannot prevail on a preserved conflict of interest claim absent a showing of

actual prejudice” and must show “that trial counsel was burdened by an

‘actual’—rather than mere ‘potential’—conflict of interest” by demonstrating

“(1) counsel ‘actively represented conflicting interests’; and (2) those

conflicting   interests      ‘adversely     affected   his   lawyer's   performance.’”

Commonwealth v. Sepulveda, 55 A.3d 1108, 1147 (Pa. 2012).                       Here,

Appellant did not allege an actual conflict of interest or show he was actually

prejudiced by counsel’s representation.            In his sixth allegation of error,

Appellant avers that he was denied admission to the Recidivism Risk

Reduction Incentive (RRRI) program; however, this claim fails since

Appellant was ineligible because he had been convicted previously of

resisting arrest. See Commonwealth v. Chester, 101 A.3d 56 (Pa. 2014)

(RRRI Act excludes from eligibility defendants with a history of violent

behavior which covers violent behaviors not otherwise specifically identified

in the Act's definition of “eligible offender”); see also 61 Pa.C.S.A. § 4503.

In his eighth issue, Appellant contends that the trial was held in a county
                       _______________________
(Footnote Continued)


         (1) 180 days from the date on which the complaint is
         filed[.]

Pa.R.Crim.P. 600.




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without jurisdiction; however, Appellant was arrested while driving in Centre

County, which is where the trial took place.        See Commonwealth v.

Sestina, 546 A.2d 109, 112 (Pa. Super. 1988) (a court has no jurisdiction

over an offense unless the offense occurred within the county in which the

trial takes place.) Finally, Appellant asserts that the vehicular stop by police

was illegal because his license was not suspended.      This claim is frivolous

because, at trial, the Commonwealth presented Appellant’s certified driving

record and the testimony of the arresting officer to prove that at the time of

the stop, Appellant’s license was suspended for driving under the influence.

      We turn now to Appellant’s sentencing claim. Appellant contends that

the application of a mandatory minimum sentence under 18 Pa.C.S.A.

§ 7508, based upon the weight of the heroin recovered, was illegal. Anders

Brief at 19-20.   We agree.    In Commonwealth v. Fennell, 105 A.3d 13

(Pa. Super. 2014), our Court determined that 18 Pa.C.S.A. § 7508 is

unconstitutional regardless of whether the weight of the drugs was

determined beyond a reasonable doubt by a factfinder or even if the

defendant stipulated to the weight of the drugs at trial. The Fennell Court

determined that the fact-finding procedures of Section 7508 are not

severable from the remainder of the statute, and thus, the entire statute is

unconstitutional under Alleyne v. United States, 133 S. Ct. 2151 (2013),

Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc), and

Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super. 2014). Because

the trial court imposed a mandatory minimum term of imprisonment under

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18 Pa.C.S.A. § 7508, Appellant’s sentence was illegal.     Having determined

that Appellant is not entitled to relief on the remaining claims, we affirm his

convictions, vacate his sentence, and remand for resentencing. As Appellant

is entitled to counsel upon remand, we deny counsel’s petition to withdraw

without prejudice.   Upon remand, the trial court may consider counsel’s

request to withdraw and appoint new counsel as it deems fit.

      Convictions affirmed. Judgment of sentence vacated. Case remanded

for resentencing.    Petition to withdraw as counsel denied.       Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/23/2015




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