J-S46035-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
                   Appellee                 :
                                            :
              v.                            :
                                            :
TOBY L. OLIVER,                             :
                                            :
                   Appellant                :               No. 2210 MDA 2013

        Appeal from the Judgment of Sentence entered on June 19, 2012
             in the Court of Common Pleas of Lackawanna County,
                 Criminal Division, No. CP-35-CR-0001874-2011

BEFORE: SHOGAN, LAZARUS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                            FILED AUGUST 20, 2014



entered following his conviction of three counts each of possession of a



controlled    substance,   and   one   count    each   of    possession   of   drug

paraphernalia and possession of a small amount of marijuana.1 Additionally,

               -appointed counsel,                                                ,

has filed a Petition to Withdraw as counsel and an accompanying brief

pursuant to Anders v. California, 386 U.S. 738, 744 (1967).               We grant

                                       w, and affirm the judgment of sentence.

        In June 2011, a confidential police informant, cooperating with the

Lackawanna County United Drug Task Force, conducted four controlled buys

                                                                                 a.

1
    See 35 P.S. §§ 780-113(a)(30), (a)(16), (a)(32), (a)(31).
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residence   large   amounts    of   heroin   and   cocaine,   as   well   as   drug

paraphernalia and marijuana.        Oliver was arrested and charged with the

above-mentioned offenses in a multiple-count Criminal Complaint, after

which the matter proceeded to a jury trial. In March 2012, the jury found

Oliver guilty on all counts.

      Prior to sentencing, the Commonwealth gave Notice of its intent to

pursue a mandatory minimum sentence under two provisions of 18 Pa.C.S.A.

§ 7508, which provide for enhanced mandatory minimum sentences where

the offender possessed a certain amount of narcotics and had been

                                                                               See

id. § 7508(a)(3)(ii), and (a)(7)(i); see also Commonwealth v. Vasquez,

753 A.2d 807, 809 (Pa. 2000) (holding that that a conviction in a multiple-

count compl

triggering the enhancement provisions of 18 Pa.C.S.A. § 7508).



PWID convictions (counting one of these PWID convictions as a prior drug

trafficking conviction under Vasquez), and imposed an aggregate prison




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sentence of 172 months to 348 months, plus thirteen years of probation.2

Oliver filed a post-sentence Motion for Reconsideration of Sentence, arguing

that the trial court imposed an illegal sentence and inappropriately applied



        Approximately four months later, in October 2012, Oliver filed a

Petition under the Post Conviction Relief Act3 seeking reinstatement of his

direct appeal rights, nunc pro tunc. The trial court permitted Oliver to file an

appeal nunc pro tunc, and appointed Attorney Lynott to represent Oliver.

Attorney Lynott timely filed a Notice of Appeal. In response, the trial court




2
    In his Anders

enhancement provisions of section 7508, as follows:

             [Oliver] was found guilty of [three separate counts of
        PWID, concerning his possession of] 4.8 grams of heroin, 13.4
        grams of [powder] cocaine[,] and 13.4 grams of crack cocaine.

        h]eroin[, where the amount of heroin possessed is over one
        gram but less than five grams,] carries a mandatory minimum
        sentence of two [] years and[,] for a second offense[,] three []
        years. 18 Pa.C.S.A. [§] 7508(a)(7)(i). [Oliver] received a
        sentence of three [] to six [] years [in prison for his PWID
        (heroin) conviction]. For [PWID] cocaine, [where the amount of
        cocaine possessed is more than 10 grams but less than 100
        grams,] there is a mandatory sentence of three [] years for [a]
        first offense[,] and five [] years for [a] second offense[]. 18
        Pa.C.S.A. [§] 7508(a)(3)(ii). [Oliver] received a sentence of five
        [] to ten [] years [in prison] for each [of his two] count[s] of
        [PWID c]ocaine[.]

Anders Brief at 7.
3
    See 42 Pa.C.S.A. §§ 9541-9546.

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ordered Oliver to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal, and Oliver timely filed a Concise Statement.

        Subsequently, Attorney Lynott filed with this Court an Anders Brief

                                                 l, asserting that the claim that

Oliver wished to raise on appeal was wholly frivolous and that there are no

other meritorious issues to present on appeal. Oliver filed a pro se response

                                                      Petition to Withdraw and

Anders Brief.4



whether Attorney Lynott has complied with the dictates of Anders and its

progeny in petitioning to withdraw from representation.             Pursuant to

Anders, when counsel believes that an appeal is frivolous and wishes to

withdraw from representation, he must do the following:

        (1) petition the court for leave to withdraw stating that after
        making a conscientious examination of the record and
        interviewing the defendant, counsel has determined the appeal
        would be frivolous, (2) file a brief referring to any issues in the
        record of arguable merit, and (3) furnish a copy of the brief to
        defendant and advise him of his right to retain new counsel or to
        raise any additional points that he deem
        attention. The determination of whether the appeal is frivolous
        remains with the [appellate] court.

Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012)

(citations omitted).

        Additionally, the Pennsylvania Supreme Court has explained that a

proper Anders brief must

4
    Oliver did not retain alternate counsel for this appeal.

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J-S46035-14

     (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
                conclusion that the appeal is frivolous; and (4) state

     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. Santiago

counsel has satisfied the Anders



independent jud

Commonwealth v. Edwards, 906 A.2d 1225, 1228 (Pa. Super. 2006)

(citation and brackets omitted).

     Our review of Attorney              Anders Brief and Petition to Withdraw

reveals that he has substantially complied with the requirements of

Anders/Santiago.5                                           , 957 A.2d 1265,

1267 (Pa. Super. 2008) (stating that substantial compliance with the

requirements to withdraw as counsel will satisfy the Anders criteria).

Additionally, Attorney Lynott has properly (1) provided Oliver with a copy of

both the Anders Brief and Petition to Withdraw; and (2) appended to the

Anders Brief a copy of the letter that he sent to Oliver advising him of his

right to retain new counsel, proceed pro se, or raise any additional points


5
                                                            Anders Brief)
incorrectly states that counsel seeks to withdraw pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
This matter falls under Anders and its progeny, not Turner/Finley.

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J-S46035-14



examine the record to make an independent determination of whether



      In the Anders Brief, Attorney Lynott explains that Oliver wishes to



sentencing    enhancement      provisions    set   forth   in   18    Pa.C.S.A.

§ 7508(a)(7)(i) and (a)(3)(ii), which allegedly resulted in an illegal sentence.

See Anders Brief at 6.



convictions. See id. at 7-8.

                  pro se                                                iling an

Anders Brief, and contends that the sentencing court imposed an illegal

sentence by applying the enhancement provisions of section 7508(a)(3)(ii)



decision in Alleyne v. U.S., 133 S. Ct. 2151 (U.S. 2013) (holding that any



element of the crime that must be submitted to a jury and found beyond a

reasonable doubt).6 Response, 4/29/14, at 7. We disagree.

      This Court has explained the holding in Alleyne as follows:

           According to the Alleyne Court, a fact that increases the
      sentencing floor is an element of the crime. Thus, it ruled that

6

Alleyne decision, Alleyne applies retroactively. See Commonwealth v.
Thompson, 2014 PA Super 106, at **31-33 (Pa. Super. 2014);
Commonwealth v. Munday, 78 A.3d 661, 665-66 (Pa. Super. 2013).

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     facts that mandatorily increase the range of penalties for a
     defendant must be submitted to a fact-finder and proven beyond
     a reasonable doubt. The Alleyne decision, therefore, renders
     those Pennsylvania mandatory minimum sentencing statutes
     that do not pertain to prior convictions constitutionally
     infirm insofar as they permit a judge to automatically increase a

     standard.

Commonwealth v. Watley, 81 A.3d 108, 117-18 (Pa. Super. 2013) (en

banc) (emphasis added; footnotes omitted).

     In the instant case, the sentencing court applied the enhancement

provisions of section



                                                                  Alleyne.



no non-frivolous issues that Oliver could present on appeal. Accordingly, we

grant Attorney Lynott permission to withdraw under the precepts of Anders,

and affirm the judgment of sentence.

     Petition to Withdraw as counsel granted; judgment of sentence

affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/20/2014




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