J-S06030-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANDREW BOODOO                              :
                                               :
                       Appellant               :   No. 950 EDA 2018

             Appeal from the Judgment of Sentence March 1, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0009940-2016


BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.:                                   FILED MAY 21, 2019

       Appellant, Andrew Boodoo, appeals from the Judgment of Sentence of

six to twelve years of incarceration followed by five years of probation, entered

March 1, 2018, following his open guilty plea to Criminal Attempt (Murder),

Firearms Not to be Carried without a License, and Carrying Firearms on Public

Streets or Public Property in Philadelphia.1 Appointed counsel, James Lloyd,

Esq., seeks to withdraw his representation of Appellant pursuant to Anders

v. California, 386 U.S. 738 (1967). We affirm the Judgment of Sentence and

grant counsel’s Application to Withdraw as Counsel.

       On May 22, 2016, while a passenger in a black Nissan, Appellant drove

to the one hundred block of East Wishart Street in Philadelphia. N.T. Guilty

____________________________________________


1 See 18 Pa.C.S. §§ 901(a) (Murder, 18 Pa.C.S. § 2502), 6106(a)(1), 6108,
respectively
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Plea, 12/11/17, at 11. Appellant leaned out of the vehicle, drew a firearm,

and fired several shots at the victim, Dana McKleany. Id.2 Thereafter, police

arrested Appellant, charged him, and he pleaded guilty. Id. at 11-13.

       Following a pre-sentence investigation, the trial court sentenced

Appellant as stated above. N.T. Sentencing, 3/11/18, at 21-22. Appellant did

not file a post-sentence motion, nor did he otherwise challenge the validity of

his plea or the discretionary aspects of his sentence.

       Appellant timely filed a Notice of Appeal. The trial court granted former

counsel, Carmen Nasuti, Esq., leave to withdraw and appointed current

counsel for appellate purposes. Trial Ct. Order, 3/28/18. Thereafter, counsel

filed a Statement indicating his intent to file an Anders brief. See Pa.R.A.P.

1925(c)(4). The trial court did not file an opinion in response.

       In this Court, counsel has filed an Anders Brief purporting to challenge

discretionary aspects of Appellant’s sentence and the validity of his plea.

Anders Br. at 6. In addition, counsel has filed an Application to Withdraw as

Counsel.

       “When 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.” Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.

Super. 2007) (en banc).         Prior to withdrawing as counsel on direct appeal

____________________________________________


2 The Notes of Testimony contain a stenographical error, suggesting the
victim’s name is “Damon McClinning.” Id.; see Information, 10/27/16
(providing victim’s proper name).

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under Anders, counsel must file a brief that meets the requirements

established by the Pennsylvania Supreme Court in Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009), namely:

      (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.

      In addition, counsel must provide a copy of the Anders brief to his

client. “Attending the brief must be a letter that advises the client of his 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 the court[’]s

attention in addition to the points raised by counsel in the Anders brief.’”

Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (quoting

Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007).

      Counsel has complied with the requirements of Anders as articulated in

Santiago.     Namely, he includes a summary of the relevant factual and

procedural history; he refers to the portions of the record that could arguably

support Appellant’s claims; and he sets forth his conclusion that Appellant’s




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appeal is frivolous.3 He explains his reasoning and supports his rationale with

citations to the record as well as pertinent legal authority.       Counsel has

supplied Appellant with a copy of his Anders Brief and a letter explaining the

rights enumerated in Nischan. See Application to Withdraw, Exh. A, (Letter,

dated August 31, 2018). Accordingly, counsel has complied with the technical

requirements for withdrawal.4

        Having addressed counsel’s technical compliance with Anders, we will

address the substantive issues raised by counsel.         In addition, we must

conduct “a simple review of the record to ascertain if there appear on its face

to be arguably meritorious issues that counsel, intentionally or not, missed or

misstated.” Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super.

2018) (en banc).

        In his first issue, Appellant purports to challenge discretionary aspects

of his sentence. See Anders Br. at 20 (suggesting Appellant’s sentence is

“manifestly excessive”).



____________________________________________


3 In his Brief, counsel does not conclude specifically that Appellant’s appeal is
“frivolous.”    See generally Anders Br.          Rather, counsel states that
Appellant’s “claim[s] cannot be ethically advanced in this direct appeal.”
Anders Br. at 20, 24; but see Application to Withdraw at ¶¶ 5 (“[A]ll possible
issues to be raised in this direct appeal [are] frivolous.”), 7 (“I ultimately
determined [Appellant’s issues] to be frivolous under controlling law in light
of the existing record.”). In light of counsel’s otherwise strictly compliant
Brief, which demonstrates a comprehensive understanding of the record and
controlling law, we deem counsel’s Anders Brief compliant.

4   Appellant has offered no response to counsel’s Anders Brief.

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      A challenge to discretionary aspects of a sentence is not reviewable as

a matter of right.   Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa.

Super. 2015). Rather, an appellant must invoke this Court’s jurisdiction by,

inter alia, preserving a challenge at sentencing or in a post-sentence motion.

Id.   “Objections to the discretionary aspects of a sentence are generally

waived if they are not raised at the sentencing hearing or in a motion to modify

the sentence imposed.” Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.

Super. 2013).

      Here, Appellant did not preserve this challenge at his sentencing hearing

or thereafter in a post-sentence motion.     Accordingly, he has waived any

challenge to discretionary aspects of his sentence. See Leatherby, supra;

Griffin, supra.

      In his second issue, Appellant purports to challenge the validity of his

plea. Anders Br. at 24.

      “A defendant wishing to challenge the voluntariness of a guilty plea on

direct appeal must either object during the plea colloquy or file a motion to

withdraw the plea within ten days of sentencing.”         Commonwealth v.

Lincoln, 72 A.3d 606, 609-10 (Pa. Super. 2013) (citing Pa.R.Crim.P. 720).

Failure to do so results in waiver. Id.; Commonwealth v. Tareila, 895 A.2d

1266, 1270 n.3 (Pa. Super. 2006).      “Moreover, a party cannot rectify the

failure to preserve an issue by proffering it in response to a Rule 1925(b)

order.”   Commonwealth v. Monjaras-Amaya, 163 A.3d 466, 469 (Pa.

Super. 2017) (quotation marks and citation omitted; emphasis removed).

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      Here, Appellant did not preserve this challenge at his plea colloquy or

thereafter by motion.      Accordingly, he has waived any challenge to the

voluntariness of his plea. See Lincoln, supra; Monjaras-Amaya, supra.

      Appellant has waived both issues he purports to raise on appeal. “An

issue that is waived is frivolous.” Commonwealth v. Tukhi, 149 A.3d 881,

888–89 (Pa. Super. 2016); see also Commonwealth v. Kalichak, 943 A.2d

285, 291 (Pa. Super. 2008) (“Having been waived, pursuing this matter on

direct appeal is frivolous.”).

      Following our review of the issues purportedly raised by Appellant in

counsel’s Anders Brief, we agree with counsel and conclude that this appeal

is wholly frivolous. In addition, following an independent review of the record,

we discern no arguably meritorious issues that warrant further consideration.

See Dempster, supra at 272. Accordingly, we grant counsel’s Application

to Withdraw as Counsel and affirm Appellant’s Judgment of Sentence.

      Application to Withdraw as Counsel granted; Judgment of Sentence

affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/21/19




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