J-S21017-15


                                  2015 PA Super 135

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

ANTHONY REID

                             Appellant                No. 1968 EDA 2014


            Appeal from the Judgment of Sentence January 16, 2014
              in the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0003040-2010


BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*

OPINION BY JENKINS, J.:                                FILED JUNE 09, 2015

        Appellant Anthony Reid (“Appellant”) appeals from the January 16,

2014 judgment of sentence in the Philadelphia County Court of Common

Pleas following his guilty plea convictions for attempted murder,1 assault of a

law enforcement officer in the first degree,2 and aggravated assault.3

Appellant’s counsel has filed an Anders4 brief, together with a petition to



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 901.
2
    18 Pa.C.S. § 2702.1.
3
    18 Pa.C.S. § 2702.
4
    Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967).
J-S21017-15



withdraw as counsel.          We affirm the judgment of sentence and grant

counsel’s petition to withdraw.

       The    trial   court   summarized       the   events   underlying   Appellant’s

convictions as follows:

       On the morning of September 4, 2009, Appellant and his co-
       defendant, Brian Williams (“Williams”), ran out of the Sunoco
       gas station at 52nd and Spruce Streets in Philadelphia. Officer
       Julius Cesar observed that the men were armed and carrying a
       bag of money. Both men jumped into a get-away car and fled
       the scene. Officer Cesar engaged in a high-speed pursuit of the
       two defendants through the city. As Appellant was driving,
       Williams leaned out the passenger window and fired at Officer
       Cesar’s vehicle, which struck the car’s front grille – the officer
       was not injured. Both men continued to elude police until
       crashing into a parked car at 63rd and Grays Avenue. At that
       time, multiple officers converged on the scene.         Appellant
       opened the driver’s door and opened fire at the officers. The
       police returned fire, and during the exchange of bullets, Officer
       Adrian Hospetale was struck in the mouth. Both Appellant and
       Williams were immediately apprehended. A search of the vehicle
       revealed two (2) loaded firearms and $100,000 in cash.

Trial Court Pa.R.A.P. 1925(a) Opinion, filed November 24, 2014 (“1925(a)

Opinion”), p. 2.

       On March 21, 2011, Appellant pleaded guilty to the aforementioned

charges.     Pursuant to a negotiated plea agreement, on January 16, 2014,

the trial court sentenced Appellant to 10 to 20 years’ incarceration on the

attempted murder conviction,5 20 to 40 years’ incarceration on the assault
____________________________________________


5
  The trial court sentenced Appellant – who had five prior robbery
convictions – pursuant to 42 Pa.C.S. § 9714, which provides mandatory
sentences for second and subsequent crimes of violence.



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of a law enforcement officer in the first degree conviction6 concurrent to the

attempted murder conviction, and 5 to 10 years’ incarceration for the

aggravated assault conviction to be served consecutive to the attempted

murder and assault of a law enforcement officer in the first degree

convictions, for an aggregate total of 25 to 50 years’ incarceration. 7      On

January 24, 2014, Appellant filed a pro se post-trial motion to reconsider

sentence that was denied by operation of law on June 11, 2014. Appellant

filed a notice of appeal on July 2, 2014.8 On August 18, 2014, Appellant’s

____________________________________________


6
  The trial court sentenced Appellant pursuant to 42 Pa.C.S. § 9719.1, which
requires a mandatory 20-year minimum sentence for convictions for assault
of a law enforcement officer in the first degree.
7
  The trial court imposed no further penalty for six other charges of
aggravated assault to which Appellant pleaded guilty and was convicted.
The court nolle prossed the remaining charges as part of the guilty plea
agreement.
8
  Appellant was represented by counsel at the time he filed his pro se motion
for reconsideration. Accordingly, his pro se motion for reconsideration was a
nullity. See Commonwealth v. Ellis, 626 A.2d 1137, 1139 (Pa.1993)
(“[T]here is no constitutional right to hybrid representation either at trial or
on appeal.”); Commonwealth v. Nischan, 928 A.2d 349, 355
(Pa.Super.2007) (pro se post-sentence motion filed while represented was a
nullity, having no legal effect). Therefore, Appellant’s counsel actually
properly filed the notice of appeal on Appellant’s behalf on February 11,
2014, despite the pending pro se motion for reconsideration. Despite this,
this Court quashed the appeal as interlocutory on May 15, 2014. See
Commonwealth v. Reid, 553 EDA 2014. Following the denial of the pro se
motion for reconsideration by operation of law on June 11, 2014, Appellant’s
counsel once again filed a timely notice of appeal. We find this procedural
posture, while flawed, presents no jurisdictional impediment to the instant
appeal.




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appointed counsel filed a statement of intent to file an Anders brief

pursuant to Pa.R.A.P. 1925(c)(4). The trial court filed its 1925(a) Opinion

on November 24, 2014.

        As previously noted, Appellant’s counsel has filed an application

seeking to withdraw from representation pursuant to Anders v. California

and its Pennsylvania counterpart, Commonwealth v. Santiago.9              Before

addressing the merits of Appellant’s underlying issue presented, we must

first pass on counsel’s petition to withdraw. Commonwealth v. Goodwin,

928 A.2d 287, 290 (Pa.Super.2007) (en banc).

        Prior to withdrawing as counsel on a direct appeal under Anders,

counsel must file a brief that meets the requirements established by our

Supreme Court in Santiago. The 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, 978 A.2d at 361. Counsel must also provide the appellant with a

copy of the Anders brief, together with a letter that advises the appellant of

his or her right to “(1) retain new counsel to pursue the appeal; (2) proceed

pro se on appeal; or (3) raise any points that the appellant deems worthy of
____________________________________________


9
    978 A.2d 349 (Pa.2009).



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the court’s attention in addition to the points raised by counsel in the

Anders        brief.”   Commonwealth v. Nischan, 928         A.2d 349, 353

(Pa.Super.2007).        Substantial compliance with these requirements is

sufficient.        Commonwealth      v.   Wrecks,   934   A.2d   1287,   1290

(Pa.Super.2007). “After establishing that the antecedent requirements have

been met, this Court must then make an independent evaluation of the

record to determine whether the appeal is, in fact, wholly frivolous.”

Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super.2006).

      Instantly, counsel contemporaneously filed a petition to withdraw as

counsel with the Anders brief. The petition states that counsel determined,

after communicating with Appellant about the appeal, independently and

conscientiously reviewing the record, and conducting appropriate legal

research into possible issues, that no non-frivolous issues exist to be raised

on appeal.        See Petition to Withdraw As Counsel, ¶¶ 8-9.    The petition

further explains that counsel drafted and filed an Anders brief that included

all issues Appellant wished raised on appeal as well as any issues counsel

felt were of arguable merit, all of which counsel ultimately concluded were

wholly frivolous. Id. at ¶ 11. Additionally, the petition explains that counsel

notified Appellant of the withdrawal request, furnished Appellant with a copy

of the Anders brief, and sent Appellant a letter explaining his right to

proceed pro se or with new, privately-retained counsel to raise any




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additional points or arguments that Appellant believed had merit. 10 See id.

at ¶¶ 12-13; see also Letter to Appellant, January 12, 2015. In the Anders

brief, counsel provides a summary of the facts and procedural history of the

case with citations to the record, refers to evidence of record that might

arguably support the issues raised on appeal, provides citations to relevant

case law, and states his conclusion that the appeal is wholly frivolous and his

reasons therefor. See Appellant’s Brief, pp. 7-33. Accordingly, counsel has

substantially complied with the requirements of Anders and Santiago.

       As Appellant filed neither a pro se brief nor a counseled brief with new,

privately-retained counsel, we review this appeal based on the issues of

arguable merit raised in the Anders brief:

       [1.]     Was [Appellant’s]         negotiated   guilty   plea   knowing,
       intelligent, and voluntary?

       [2.] Was the negotiated sentence imposed upon [Appellant] by
       the lower court pursuant to the terms of the negotiated guilty
       plea manifestly excessive?

       [3.] Was the sentence imposed upon [Appellant] illegal under
       Alleyne v. U.S., 133 S.Ct. 2151 (2013) insofar as it included
       mandatory minimum sentences imposed pursuant to 42
       Pa.C.S.[] §§ 9714 and 9719.1?


____________________________________________


10
     Appellant’s counsel originally filed his Anders brief and petition to
withdraw on January 12, 2015. On January 28, 2015, this Court entered a
per curiam order directing counsel to file, within 10 days, copies of the letter
he sent to Appellant with the Anders brief, which counsel had neglected to
attach to his petition to withdraw. See Order, January 28, 2015. Counsel
timely complied with this Court’s directive on February 3, 2015.




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        [4.] Is [Appellant] entitled to have his sentence vacated due to
        the fact that the District Attorney’s Office breached the terms of
        an agreement with [Appellant]?

        [5.] Was [Appellant] denied effective assistance of counsel due
        to the fact that his privately retained plea counsel failed to file a
        pre- or post-sentence motion to withdraw [Appellant’s]
        negotiated guilty plea?

        [6.] Was [Appellant] denied effective assistance of counsel due
        to the fact that his privately retained plea counsel advised him
        not to exercise his right of allocution at sentencing?

Appellant’s Brief, pp. 5-6.

1. Appellant entered a knowing, intelligent and voluntary guilty plea.

        Appellant’s first claim alleges that his plea of guilty was not knowing,

intelligent, and voluntary. See Appellant’s Brief, pp. 17-20. This claim lacks

merit.

        “A valid plea colloquy must delve into six areas: 1) the nature of the

charges, 2) the factual basis of the plea, 3) the right to a jury trial, 4) the

presumption of innocence, 5) the sentencing ranges, and 6) the plea court’s

power to deviate from any recommended sentence.”             Commonwealth v.

Morrison,      878   A.2d   102,   107    (Pa.Super.2005);    Pa.R.Crim.P.      590,

Comment. Additionally, a written plea colloquy that is read, completed and

signed by the defendant and made part of the record may serve as the

defendant’s plea colloquy when supplemented by an oral, on-the-record

examination. Morrison, 878 A.2d at 108 (citing Comment to Pa.R.Crim.P.

590).    “[A] plea of guilty will not be deemed invalid if the circumstances

surrounding the entry of the plea disclose that the defendant had a full



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J-S21017-15



understanding of the nature and consequences of his plea and that he

knowingly and voluntarily decided to enter the plea.”             Commonwealth v.

Fluharty, 632 A.2d 312, 315 (Pa.Super.1993). “Our law presumes that a

defendant who enters a guilty plea was aware of what he was doing.                 He

bears the burden of proving otherwise.” Commonwealth v. Pollard, 832

A.2d 517, 523 (Pa.Super.2003) (internal citation omitted). The entry of a

negotiated plea is a “strong indicator” of the voluntariness of the plea.

Commonwealth           v.   Myers,     642     A.2d    1103,   1106   (Pa.Super.1994).

Moreover, “[t]he law does not require that [the defendant] be pleased with

the outcome of his decision to enter a plea of guilty: All that is required is

that [his] decision to plead guilty be knowingly, voluntarily and intelligently

made.”        Commonwealth            v.     Anderson,      995   A.2d   1184,   1192

(Pa.Super.2010).

        The record reveals Appellant understood the nature of the charges

against him and the plea to which he was agreeing, and that he voluntarily

and intelligently entered his guilty plea.            At the outset of the guilty plea

hearing, the trial court placed the terms of the agreement on the record.11
____________________________________________


11
     The trial court summarized the plea agreement as follows:

        THE COURT: . . . It’s my understanding that on each of these
        transcripts in exchange for your pleas to Counts 1 and 2 of the
        first transcripts that I referred to which you’re charged with
        robbery and criminal conspiracy, and on the second transcript in
        exchange for your pleading guilty to Counts 2 and 3 on that
        transcript involving robbery and criminal conspiracy.
(Footnote Continued Next Page)


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J-S21017-15



See N.T. 3/21/2011, pp. 6-7. Appellant confirmed that he understood the

terms of the negotiated agreement.               Id. at 7.   Thereafter, the trial court

conducted a lengthy guilty plea colloquy in which Appellant fully participated.

See id. at 8-35. During the guilty plea colloquy, the trial court explained to

Appellant his right to a jury trial, his post-guilty plea appellate rights, and

the elements and statutory maximum penalty possible for the charges. Id.

at 9-21. Appellant indicated he understood. Id. at 10, 13, 21. Additionally,

the Commonwealth provided lengthy factual bases for the charges, after

which Appellant admitted he was guilty of each crime.                    Id. at 21-29.

Appellant is bound by his statements made during the colloquy.                     See

Commonwealth v. McCauley, 797 A.2d 920, 922 (Pa.Super.2001)

(defendant is bound by statements he makes during plea colloquy, and may
                       _______________________
(Footnote Continued)

      In exchange for your pleas to Counts 1, 4, 7, 10, 11, 12, 13, 16,
      21 and 24 of the third transcript in which you’re charged with six
      separate counts of attempted aggravated assault, one count of
      attempted murder, one count of criminal conspiracy, and one
      count of aggravated assault, causing serious bodily injury to a
      police officer, in exchange for those pleas the Commonwealth
      has agreed to nolle pros all other counts under each of the
      respective transcripts.

      And they have agreed to recommend a sentence which is to be
      deferred for a total period of 25 to 50 years of incarceration
      which the sentence is to be served concurrent to and as yet a
      federal sentence is to be imposed in the near future together
      with fines and costs, plus restitution.


N.T. 3/21/2011, pp. 6-7.




                                            -9-
J-S21017-15



not assert grounds for withdrawing plea that contradict statements made

when he pleaded guilty).

      Additionally, defense counsel and Appellant reviewed and completed a

written guilty plea colloquy for each docket on which he pleaded guilty,

which the trial court reviewed with Appellant and admitted into evidence

during the oral colloquy. See N.T. 3/21/2011, pp. 29-31; see also Written

Guilty Plea Colloquies.     The written colloquies outlined the plea agreement

and discussed the charges, the right to a jury trial, and the pre-trial rights

relinquished by pleading guilty.       See Written Guilty Plea Colloquies.       The

written colloquies further outlined the presumption of innocence and the trial

court’s power to deviate from the recommended sentence.               Id.   Appellant

further acknowledged in the written guilty plea colloquies that he had ample

opportunity to consult with counsel, and that he was satisfied with counsel’s

representation.      See id. at 3.         He is further bound by these written

statements. See McCauley, supra.

      Our review of the guilty plea hearing transcript and documents reveals

that the lower court did not abuse its discretion. The record supports the

trial court’s conclusion that Appellant entered his plea knowingly, voluntarily,

and intelligently.

2. Appellant waived his discretionary aspects of sentence claim.

      Appellant      next   claims   the     negotiated   sentence   imposed    upon

acceptance of his guilty plea was manifestly excessive.              See Appellant’s

Brief, pp. 29-33. This claim raises a challenge to the discretionary aspects

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J-S21017-15



of Appellant’s negotiated sentence, and is unreviewable.      The trial court

imposed the sentence Appellant negotiated with the Commonwealth.

Appellant may not now seek discretionary review of that negotiated

sentence.      See Commonwealth v. O’Malley, 957 A.2d 1265, 1267

(Pa.Super.2008) (“One who pleads guilty and receives a negotiated sentence

may not then seek discretionary review of that sentence.”). This claim fails.

3. The trial court did not impose an illegal sentence under Alleyne.

        Appellant next claims his sentence is illegal based on the Supreme

Court of the United States’ decision in Alleyne v. United States12 because

it includes certain mandatory minimum sentences.       See Appellant’s Brief,

pp. 25-28. Appellant is incorrect.

        First, Appellant challenges the application of the 10-year mandatory

minimum sentence imposed on his attempted murder conviction. Regarding

mandatory minimum sentences for second or subsequent convictions for

crimes of violence, the Sentencing Code provides, in relevant part:

        (a) Mandatory sentence.--

           (1) Any person who is convicted in any court of this
           Commonwealth of a crime of violence shall, if at the time
           of the commission of the current offense the person had
           previously been convicted of a crime of violence, be
           sentenced to a minimum sentence of at least ten years of
           total confinement, notwithstanding any other provision of
           this title or other statute to the contrary. Upon a second
____________________________________________


12
     __ U.S. __, 133 S. Ct. 2151 (2013).




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        conviction for a crime of violence, the court shall give the
        person oral and written notice of the penalties under this
        section for a third conviction for a crime of violence.
        Failure to provide such notice shall not render the offender
        ineligible to be sentenced under paragraph (2).

42 Pa.C.S. § 9714(a).

     In Alleyne, the Supreme Court of the United States held that the

Sixth Amendment requires that any fact – other than a prior conviction –

that increases a mandatory minimum sentence for an offense must be

submitted to the jury and proven beyond a reasonable doubt. Importantly,

Alleyne did not overturn prior precedent that prior convictions are

sentencing factors and not elements of offenses.       Alleyne, 133 S.Ct. at

1260 n.1; see also Almendarez-Torres v. United States, 523 U.S. 224,

243-44, 118 S.Ct. 1219, 1230-31 (1998).

     Section 9714 increases mandatory minimum sentences based on prior

convictions. See 42 Pa.C.S. § 9714(a)(1). Accordingly, this section is not

unconstitutional   under   Alleyne.       See   Alleyne,   supra;   see   also

Commonwealth v. Akbar, 91 A.3d 227, 239 n.9 (Pa.Super.2014), appeal

granted and order vacated on other grounds, No. 238 EAL 2014, 2015 WL

920472 (Pa. Mar. 4, 2015).

     Here, at his guilty plea hearing, Appellant acknowledged that his cases

involved “mandatory sentences [that would] be imposed by the [trial

c]ourt[.]” N.T. 3/21/2011, p. 8. At sentencing, the court characterized the




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J-S21017-15



instant matter      as   a “second strike          case[,]”   without objection   from

Appellant.13 See N.T. 1/16/2014, pp. 4-6. The trial court then imposed a

section 9714 mandatory minimum sentence on the attempted murder

conviction. This sentence was legal.

       Appellant also challenges the application of the 20-year mandatory

minimum sentence imposed on his conviction for assault of a law

enforcement officer in the first degree.           Regarding sentences for offenses

committed against law enforcement officers, the Sentencing Code provides,

in relevant part:

       (a) Mandatory sentence.--A person convicted of the following
       offense shall be sentenced to a mandatory term of imprisonment
       as follows:

             18 Pa.C.S. § 2702.1(a) (relating to assault of law
          enforcement officer)[14]--not less than 20 years.

42 Pa.C.S. § 9719.1.
____________________________________________


13
   Appellant concedes he had five prior convictions for robbery, a crime of
violence. See Appellant’s Brief, p. 27 n.9; see also 42 Pa.C.S. § 9714(g).
14
  Section 2702.1 defines the crime of assault of a law enforcement officer in
the first degree as follows:

       Assault of a law enforcement officer in the first degree.--A
       person commits a felony of the first degree who attempts to
       cause or intentionally or knowingly causes bodily injury to a law
       enforcement officer, while in the performance of duty and with
       knowledge that the victim is a law enforcement officer, by
       discharging a firearm.

18 Pa.C.S. § 2702.1(a).




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       This mandatory sentence provision does not implicate Alleyne.

Section 9719.1 does not require proof of any additional elements beyond

those already required to convict a defendant of assault of a law

enforcement officer in the first degree under 18 Pa.C.S. § 2702.1(a). Nor

does section 9719.1 follow the statutory scheme that allowed a trial court to

apply a mandatory minimum sentence if the Commonwealth established the

triggering fact for the mandatory minimum by a preponderance of the

evidence,15 which this Court found unconstitutional under Alleyne.          See,

i.e., 18 Pa.C.S. § 6317(b) (relating to sentencing for drug crimes committed

in school zones),16 18 Pa.C.S. § 7508(b) (relating to sentencing for drug




____________________________________________


15
   Since Alleyne, this Court has ruled unconstitutional multiple statutes
containing nearly identical “proof at sentencing” provisions.            These
provisions all included language essentially identical to the following:

       Proof at sentencing.--Provisions of this section shall not be an
       element of the crime and notice thereof to the defendant shall
       not be required prior to conviction, but reasonable notice of the
       Commonwealth’s intention to proceed under this section shall be
       provided after conviction and before sentencing. The applicability
       of this section shall be determined at sentencing. The court shall
       consider any evidence presented at trial and shall afford the
       Commonwealth and the defendant an opportunity to present any
       necessary additional evidence and shall determine, by a
       preponderance of the evidence, if this section is applicable.

42 Pa.C.S. § 9712(b).
16
  Held unconstitutional by Commonwealth v. Bizzel, 107 A.3d 102, 103
(Pa.Super.2014).



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trafficking);17 42 Pa.C.S. § 9712(b) (relating to sentences for offenses

committed with firearms),18 42 Pa.C.S. § 9712.1(c) (relating to sentences

for certain drug offenses committed with firearms),19 42 Pa.C.S. § 9713(c)

(relating to sentences for offenses committed on public transportation),20

and 42 Pa.C.S. § 9718(c) (relating to sentences for offenses against infant

persons).21     Instead, section 9719.1 simply describes the legislatively-

required sentence for an offender convicted of assaulting a law enforcement

officer pursuant to section 2702.1(a). Because it does not require proof of

facts that increase a mandatory minimum sentence, and does not follow the

statutory construction that allowed trial courts to find such facts by a

preponderance of the evidence at sentencing, section 9719.1 is not

unconstitutional under Alleyne or its Pennsylvania progeny.

       For these reasons, the trial court did not impose an illegal sentence.

____________________________________________


17
   Held unconstitutional by Commonwealth v. Cardwell, 105 A.3d 748
(Pa.Super.2014).
18
   Held unconstitutional by Commonwealth v. Valentine, 101 A.3d 801
(Pa.Super.2014).
19
   Held unconstitutional by Commonwealth v. Newman, 99 A.3d 86
(Pa.Super.2014).
20
   Held unconstitutional by Commonwealth v. Valentine, 101 A.3d 801
(Pa.Super.2014).
21
   Held unconstitutional by Commonwealth v. Wolfe, 106 A.3d 800
(Pa.Super.2014).




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4. No evidence exists              of    any   agreement   breached   by     the
   Commonwealth.

        Appellant next argues that the Commonwealth induced him to plead

guilty with the promise of an alleged, nebulous agreement between the

Commonwealth and Appellant, which the Commonwealth subsequently

breached. See Appellant’s Brief, pp. 24-25. This claim lacks merit.22

        Appellant appears to argue that he received no benefit for having

testified for the Commonwealth in other cases.23 However, nowhere in his

brief or filings does Appellant set forth when he made any agreement with

the Commonwealth to testify in other cases or the terms of the alleged

____________________________________________


22
    Appellant’s claim challenges the validity of his plea and is therefore
eligible for review on direct appeal. See Commonwealth v. Eisenberg, 98
A.3d 1268, 1275 (Pa.2014) (noting “upon entry of a guilty plea, a defendant
waives all claims and defenses other than those sounding in the jurisdiction
of the court, the validity of the plea, and what has been termed the
“legality” of the sentence imposed”). To the extent Appellant argues that his
counsel unlawfully induced his guilty plea with false promises, such a claim
must await collateral review. See Commonwealth v. Holmes, 79 A.3d
562, 576 (Pa.2013); 42 Pa.C.S. § 9543(a)(2)(iii).
23
     Appellant’s pro se post-sentence motion to modify contains the claim:

        F. I feel that there was a breach of contract on behalf of the
        District attorney office – ADA ODonnelly – where as I Fullfilled
        my part, after coming Forward and testifying, but no
        acknowledgement was acredited, Nor brought Forward to the
        commonwealth court. Now I are being left hung out to dry and
        Fend for my life. For the remainder days of my life through
        lengthy incarceration sentence.

Motion for Reconsideration/Modification of Sentence, filed January 24, 2014,
p. 2 (verbatim).




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J-S21017-15



agreement(s). In fact, Appellant does not even allege the existence of an

agreement in the first place.   Instead, he simply explains that he testified

and expresses his dissatisfaction that he did not receive some undefined

benefit      from   the   Commonwealth   in   return.      See    Motion   for

Reconsideration/Modification of Sentence, p. 2. Further, the record contains

no evidence of such an agreement. The only agreement that appears in the

record is the guilty plea agreement that the trial court summarized with

Appellant’s approval, as discussed supra. Accordingly, this claim fails.

5. Appellant’s ineffective assistance of counsel claims must await
   collateral review.

      Appellant’s final two claims allege trial counsel provided ineffective

assistance of counsel by (1) failing to file pre- or post-sentence motions to

withdraw Appellant’s guilty plea, and (2) advising Appellant not to exercise

his right of allocution at sentencing. See Appellant’s Brief, pp. 20-23. It is

well-settled that, absent circumstances not present in the case at bar,

“claims of ineffective assistance of counsel are to be deferred to PCRA

review[.]”     Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa.2013).

Accordingly, these claims are premature and we will not address them at

this time.

      For the aforementioned reasons, the claims raised in the Anders brief

lack merit. Additionally, our independent review of the record has revealed

no non-frivolous claims that Appellant could have raised, and we agree with




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J-S21017-15



counsel that this appeal is wholly frivolous. Accordingly, we affirm the

judgment of sentence.

     Judgment of sentence affirmed.       Counsel’s petition to withdraw is

granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/9/2015




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