J-S61034-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :       IN THE SUPERIOR COURT OF
                                           :             PENNSYLVANIA
             v.                            :
                                           :
KHAMAL FOOKS,                              :
                                           :
                   Appellant               :           No. 251 WDA 2016

            Appeal from the Judgment of Sentence October 5, 2015
              in the Court of Common Pleas of Allegheny County,
               Criminal Division, No(s): CP-02-CR-0008254-2013

BEFORE: PANELLA, LAZARUS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                         FILED AUGUST 16, 2016

        Khamal Fooks (“Fooks”) appeals from the judgment of sentence

imposed following his guilty plea to third-degree murder, conspiracy, and

firearms not to be carried without a license.1        Additionally, Thomas N.

Farrell, Esquire (“Attorney Farrell”), Fooks’s 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 Attorney Farrell’s Petition

to Withdraw and dismiss the appeal.

        Fooks and Rayshon Shields intended to sell drugs to people in a home.

However, once inside, Fooks and Shields decided to rob the people. Fooks

shot and killed Roger Griffin (“Griffin”) as Griffin attempted to run out of the

house. Fooks and Shields then took money and cell phones from the home.




1
    18 Pa.C.S.A. §§ 2502(c); 903(c); 6106(a)(1).
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Fooks was subsequently arrested and charged with criminal homicide,

robbery, conspiracy, and firearms not to be carried without a license.

        On October 5, 2015, Fooks and the Commonwealth agreed to the

following guilty plea regarding the above-referenced charges: (1) the degree

of guilt for the homicide charge would be third-degree murder; (2) the

Commonwealth would withdraw the robbery charge; (3) Fooks would plead

guilty to the remaining charges (conspiracy and firearms not to be carried

without a license); and (4) Fooks would receive a sentence of twenty to forty

years in prison for third-degree murder, and no further sentence on the

remaining crimes.      The trial court accepted the negotiated plea after

conducting an oral colloquy. On that same date, in accordance with the plea

agreement, the trial court sentenced Fooks to an aggregate term of twenty

to forty years in prison for third-degree murder, with no further penalty for

the remaining charges. On October 30, 2015, trial counsel filed a Motion to

Withdraw as Counsel, which the trial court granted and subsequently

appointed Attorney Farrell.

        On January 8, 2016, Fooks timely filed a Petition pursuant to the Post

Conviction Relief Act (“PCRA”)2 requesting that his appeal rights be

reinstated from the point of the post-sentencing motions stage, which the

PCRA court granted.       On January 19, 2016, Fooks filed a Motion to

Reconsider Sentence, Nunc Pro Tunc, which the trial court denied.


2
    42 Pa.C.S.A. §§ 9541-9546.

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Thereafter, Fooks filed a timely Notice of Appeal of his judgment of

sentence. Attorney Farrell subsequently filed a Pa.R.A.P. 1925(c)(4) Notice

of Intent to file an Anders brief.

      On appeal, Attorney Farrell has filed an Anders Brief, raising the

following question for our review:

      Whether the trial court erred and/or abused its discretion by
      imposing a harsh sentence and not granting Fooks’s [M]otion to
      [R]econsider [S]entence, when Fooks and the Commonwealth[,]
      after a negotiation session[,] asked the trial court to sentence
      Fooks to twenty (20) to forty (40) years of incarceration for
      third-degree murder with no further penalty as to the non-
      homicide charges, when the facts of the case overwhelmingly
      support a conviction of second-degree murder which, alone,
      would have resulted in a life sentence without the possibility of
      parole and the trial court actually accepted the guilty plea and
      sentenced Fooks to the negotiated sentence?

Anders Brief at 5.     Attorney Farrell also filed a Petition to Withdraw as

Counsel with this Court on May 16, 2016. Fooks filed neither a pro se brief,

nor retained alternate counsel.

      We must first determine whether Attorney Farrell has complied with

the dictates of Anders in petitioning to withdraw from representation. See

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007)

(stating that “[w]hen faced with a purported Anders brief, this Court may

not review the merits of any possible underlying issues without first

examining counsel’s request to withdraw.”). Pursuant to Anders, when an

attorney believes that an appeal is frivolous and wishes to withdraw as

counsel, he or she must



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      (1) [p]etition the court for leave to withdraw stating that after
      making a conscientious examination of the record, counsel has
      determined the appeal would be frivolous; (2) file a brief
      referring to any issues that might arguably support the appeal,
      but which does not resemble a no-merit letter; and (3) furnish a
      copy of the brief to the defendant and advise him of his right to
      retain new counsel, proceed pro se, or raise any additional points
      he deems worthy of this Court’s attention.

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

(citation omitted).

      Additionally, the Pennsylvania Supreme Court has determined that a

proper 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 the record,
      controlling case law, and/or statutes on point that have led to
      the conclusion that the appeal is frivolous.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

      Here, Attorney Farrell has complied with the requirements set forth in

Anders by indicating that he conscientiously examined the record and

determined that an appeal would be frivolous.        Further, Attorney Farrell

provided a letter to Fooks, informing him of Attorney Farrell’s intention to

withdraw as counsel and advising Fooks of his rights to retain new counsel,

proceed pro se, and file additional claims. Finally, Attorney Farrell’s Anders

Brief meets the standards set forth in Santiago, by setting forth his

conclusion that the trial court did not err or abuse its discretion in imposing



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Fooks’s sentence, rendering Fooks’s appeal wholly frivolous.              Because

Attorney    Farrell   has   complied    with   the   procedural   requirements   for

withdrawing from representation, we will independently review the record to

determine whether Fooks’s appeal is, in fact, wholly frivolous.

      Fooks contends that the sentencing judge abused his discretion in

imposing a manifestly excessive sentence of twenty to forty years in prison

for third-degree murder. Anders Brief at 13.

      Fooks challenges the discretionary aspects of his sentence.

      Prior to reaching the merits of a discretionary sentencing issue,
      an appellate court conducts a four-part analysis to determine:
      (1) whether appellant has filed a timely notice of appeal, see
      Pa.R.A.P. 902 and 903; (2) whether the issue was properly
      preserved at sentencing or in a motion to reconsider and modify
      sentence, see [Pa.R.Crim.P. 720]; (3) whether appellant’s brief
      has a fatal defect, see Pa.R.A.P. 2119(f); and (4) whether there
      is substantial question that the sentence appealed from is not
      appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Phillips, 946 A.2d 103, 112 (Pa. Super. 2008) (citation

omitted).

      Here, Fooks entered into a negotiated guilty plea which provided that

he would receive a sentence of twenty to forty years in prison. See, e.g.,

N.T., 10/5/15, at 5-6.       Fooks is not entitled to discretionary review of his

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

1267 (Pa. Super. 2008) (stating that “an appellant who pleads guilty and

receives a negotiated sentence may not then seek discretionary review of

that sentence.”). Thus, we may not review Fooks’s sentence. See id.



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      Further, our independent examination of the record indicates that

there are no other claims of arguable merit. See Anders, 386 U.S. at 744-

45.   Accordingly, we conclude that Fooks’s appeal is wholly frivolous, and

Attorney Farrell is entitled to withdraw as counsel.

      Petition to Withdraw as Counsel granted; appeal dismissed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/16/2016




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