J-S50014-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA


                   v.

TRACY MARTIN

                        Appellant                  No. 3789 EDA 2016


        Appeal from the Judgment of Sentence September 13, 2016
            In the Court of Common Pleas of Delaware County
           Criminal Division at No(s): CP-23-CR-0007347-2015


BEFORE: PANELLA, J., MOULTON, J., and RANSOM, J.

MEMORANDUM BY PANELLA, J.                       FILED OCTOBER 27, 2017

     Appellant, Tracy Martin, pled guilty to one count each of insurance

fraud and receiving stolen property. The trial court proceeded to impose the

negotiated sentence of 9 to 23 months of intermediate punishment. In this

appeal, Martin’s court-appointed counsel, Patrick J. Connors, Esquire, seeks

permission to withdraw as counsel. As such, he has filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009). After careful review, we affirm the

judgment of sentence and grant Attorney Connors permission to withdraw.

     Attorney Connors has complied with the mandated procedure for

withdrawing as counsel. See Santiago, 978 A.2d at 361 (articulating

Anders requirements); Commonwealth v. Daniels, 999 A.2d 590, 594

(Pa. Super. 2010) (providing that counsel must inform client by letter of
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rights to proceed once counsel moves to withdraw and append a copy of the

letter to the petition). Martin has not filed a response to counsel’s petition to

withdraw.1

       Counsel has identified one issue that Martin believes entitles him to

relief. Martin wishes to challenge the sentence imposed by the trial court.

We begin by observing that the maximum sentence imposed was not above

the statutory maximum for his conviction for insurance fraud under 18

Pa.C.S.A. § 4117(a)(2). See 18 Pa.C.S.A. § 4117(d) (“An offense under

subsection (a)(1) through (8) is a felony of the third degree.”); 18 Pa.C.S.A.

§ 1103(3) (setting maximum sentence for felony of the third degree at

seven years). Nor is there any indication that a mandatory minimum

sentence was imposed. Martin has not identified any other possible issue

with the legality of his sentence.

       We therefore turn to the discretionary aspects of his sentence. Here,

we note that since Martin negotiated this sentence as part of his guilty plea

agreement, he is precluded from challenging the discretionary aspects of his

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

Super. 2008). Furthermore, this challenge is waived, see Commonwealth
____________________________________________


1 Martin did file a response when Attorney Connors filed his notice of intent
to file an Anders brief in lieu of a statement of matters complained of on
appeal in a related appeal, docketed at 3864 EDA 2016. In that response,
Martin identified two issues he wished to raise on appeal: the legality of the
sentence imposed and ineffective assistance of counsel. We will address both
issues in this memorandum.



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v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010), as Martin did not challenge

anything other than credit for time served in his post-sentence motion, and

requested that “all other aspects of the sentence to remain the same.” Post-

Sentence Motion, 9/22/16, at ¶6. Thus, we agree with Attorney Connor’s

assessment that any challenge to Martin’s sentence is frivolous.

      Next, we address the issue raised by Martin in his pro se response to

Attorney Connors’s notice of intent to file an Anders brief. Martin argues

that both Attorney Connors and another member of the Delaware County

Public Defender’s Office rendered ineffective assistance of counsel.

      Generally, claims of ineffectiveness of counsel are not ripe until

collateral review. See Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa.

2013). However, in extraordinary cases where the trial court determines that

the claim of ineffectiveness is “both meritorious and apparent from the

record,” it may exercise its discretion to consider the claim in a post-

sentence motion. Id., at 577.

      In Holmes, the Supreme Court of Pennsylvania explicitly identified

ineffectiveness claims as “presumptively reserved for collateral attack[.]”

Id., at 577 n.10. The Court warned against trial courts appointing “new

counsel post-verdict to search for ineffectiveness claims.” Id. Thus, while

the trial court retains discretion in addressing such claims, the presumption

weighs heavily in favor of deferring such claims to collateral review.




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       Further, the Court justified the creation of the “meritorious and

apparent from the record” exception by explaining that “[t]he administration

of criminal justice is better served by allowing trial judges to retain the

discretion to consider and vindicate such distinct claims of ineffectiveness[.]”

Id., at 577 (emphasis added). Most importantly, the Court required an

express waiver of the right to file a first, timely PCRA petition. See id., at

579.

       Martin failed to expressly forgo his right to file a timely, first PCRA

petition. Furthermore, this issue was never presented to the trial court in

any filing. It is not even clear, from Martin’s handwritten filing, what Martin

believes was ineffective about the Public Defender’s office’s representation.

For all these reasons, we conclude that Martin’s claim that counsel was

ineffective would be frivolous in this appeal from his judgment of sentence.

       As a result, we agree with Attorney Connors’s assessment that this

appeal is wholly frivolous. We therefore grant his petition to withdraw, and

affirm the judgment of sentence.

       Judgment of sentence affirmed. Permission to withdraw as counsel

granted.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/27/2017




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