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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                    v.                 :
                                       :
CHRISTOPHER JOHN LUGOWSKI,             :         No. 3549 EDA 2016
                                       :
                          Appellant    :


           Appeal from the Judgment of Sentence, October 12, 2016,
              in the Court of Common Pleas of Delaware County
               Criminal Division at No. CP-23-CR-0007169-2015


BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED MAY 16, 2017

        Christopher John Lugowski appeals from the October 12, 2016

judgment of sentence after he pled guilty to conspiracy to commit murder

and conspiracy to commit aggravated assault.1     The trial court sentenced

him to an aggregate term of 10 to 20 years’ incarceration. Michael J. Harper

(“Attorney Harper”), appellant’s counsel, has filed a petition to withdraw,

alleging that the direct appeal is wholly frivolous, accompanied by an

Anders brief.2      We grant counsel’s withdrawal petition and affirm the

judgment of sentence.




1
    18 Pa.C.S.A. § 903.
2
 See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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      The trial court provided the following factual history set forth in the

affidavit of probable cause and stipulated to by the parties:

                  On October 16, 2016 [appellant], his
            co-defendant Wydell Bronson and a female
            companion were at the Waterford Inn in Upper
            Darby, PA. Four other individuals were also at the
            bar. One of these individuals advised the bartender
            that she had been in a physical altercation with
            [appellant] and Bronson previously. The bartender
            told [appellant] and his companions to leave the bar.
            They left at about 2:00 a.m. and returned at
            4:00 a.m. When two of the four individuals left the
            bar they were met by gunshots. They saw Bronson
            shooting from bushes that were near the bar . . . and
            ran back inside. Two of the four individuals were not
            harmed. One victim was shot in the abdomen as she
            stood inside the bar and another victim was shot in
            the left knee as he ran away from the bar and
            Bronson continued to fire.      [Appellant] gave a
            statement admitting his involvement in the shooting.

                  [Appellant] filed a post sentence motion
            pro se. On November 14, 2016, the motion was
            denied and on the same day counsel filed a Notice of
            Appeal.    Trial counsel moved to withdraw her
            representation.    That motion was granted and
            appellate counsel was appointed. On December 6,
            2016 appellate counsel filed a “Statement of Matters
            Complained of on Appeal,” wherein he stated his
            intention to file an Anders brief in the Superior
            Court.

Trial court opinion, 12/7/16 at 1-2.

      Appellant raises one issue for this court’s review:           “Whether

[appellant] entered a knowing, voluntary and intelligent guilty plea?”

(Appellant’s brief at 1.)




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     On January 13, 2017, Attorney Harper filed in this court a petition to

withdraw as counsel and an Anders brief, wherein Attorney Harper states

that there are no non-frivolous issues preserved for our review on direct

appeal.

           A request by appointed counsel to withdraw pursuant
           to Anders and Santiago gives rise to certain
           requirements and obligations, for both appointed
           counsel and this Court.        Commonwealth v.
           Flowers, 113 A.3d 1246, 1247-1248 (Pa.Super.
           2015).

                These requirements and the significant
                protection they provide to an Anders
                appellant arise because a criminal
                defendant has a constitutional right to a
                direct appeal and to counsel on that
                appeal.   Commonwealth v. Woods,
                939 A.2d 896, 898 (Pa.Super. 2007).
                This Court has summarized these
                requirements as follows:

                      Direct appeal counsel seeking
                      to withdraw under Anders
                      must file a petition averring
                      that, after a conscientious
                      examination of the record,
                      counsel finds the appeal to be
                      wholly frivolous.       Counsel
                      must also file an Anders brief
                      setting forth issues that might
                      arguably support the appeal
                      along with any other issues
                      necessary for the effective
                      appellate          presentation
                      thereof.

                      Anders counsel must also
                      provide a copy of the Anders
                      petition and brief to the
                      appellant,    advising   the


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                      appellant of the right to retain
                      new counsel, proceed pro se
                      or raise additional points
                      worthy     of    the     Court’s
                      attention.

                Woods, 939       A.2d   at   898   (citations
                omitted).

                There are also requirements as to the
                precise content of an Anders brief:

                      The     Anders       brief    that
                      accompanies court-appointed
                      counsel’s petition to withdraw
                      . . . 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, 978 A.2d at 361.

          Id. at 1248. If this Court determines that appointed
          counsel has met these obligations, it is then our
          responsibility “to make a full examination of the
          proceedings and make an independent judgment to
          decide whether the appeal is in fact wholly frivolous.”
          Id. at 1248. In so doing, we review not only the
          issues identified by appointed counsel in the Anders
          brief, but examine all of the proceedings to “make


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            certain that appointed counsel has not overlooked
            the existence of potentially non-frivolous issues.”
            Id.

Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).

     Our review of Attorney Harper’s application to withdraw, supporting

documentation, and Anders brief reveals that he has complied with all of

the foregoing requirements. We note that counsel also furnished a copy of

the brief to appellant; advised him of his right to retain new counsel,

proceed pro se, and/or raise any additional points that he deems worthy of

this court’s attention; and attached to the Anders petition a copy of the

letter sent to appellant as required under Commonwealth v. Millisock,

873 A.2d 748, 751 (Pa.Super. 2005).        See Commonwealth v. Daniels,

999 A.2d 590, 594 (Pa.Super. 2010) (“While the Supreme Court in

Santiago set forth the new requirements for an Anders brief, which are

quoted above, the holding did not abrogate the notice requirements set forth

in Millisock that remain binding legal precedent.”). As Attorney Harper has

complied with all of the requirements set forth above, we conclude that

counsel has satisfied the procedural requirements of Anders.

     Once    counsel   has   met   his   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. Thus,

we now turn to the merits of appellant’s appeal.



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        Appellant asserts that he did not enter a knowing, voluntary, and

intelligent guilty plea when he agreed to enter a negotiated plea of guilty.

        This court notes that appellant failed to raise the issue of the validity

of his plea either before the trial court in open court or in a post-sentence

motion. Appellant’s post-sentence motion did not address the issue of his

plea.    See Pa.R.Crim.P. 720(B); Commonwealth v. D’Collanfield, 805

A.2d 1244 (Pa.Super. 2002). Accordingly, this issue is waived for purposes

of appeal. This court agrees with Attorney Harper that this issue concerning

his plea is frivolous.3

        Additionally, our independent review of the entire record has not

disclosed any potentially non-frivolous issues.        Consequently, we grant

counsel’s petition to withdraw, and we affirm the judgment of sentence.

        Judgment of sentence affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/16/2017




3
  Even if appellant preserved this issue, this court would agree with
Attorney Harper that the appeal was frivolous because appellant indicated
through an oral and written plea colloquy that he made a knowing,
voluntary, and intelligent guilty plea.


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