J-S74040-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                   Appellee               :
                                          :
             v.                           :
                                          :
RICHARD R. CARBONARA,                     :
                                          :
                   Appellant              : No. 1516 EDA 2014

            Appeal from the Judgment of Sentence April 10, 2014,
                 Court of Common Pleas, Delaware County,
              Criminal Division at No. CP-23-CR-0001864-2014

BEFORE: BENDER, P.J.E, DONOHUE and STRASSBURGER*, JJ.

MEMORANDUM BY DONOHUE, J.:                            FILED JUNE 23, 2015

       Appellant, Richard R. Carbonara (“Carbonara”), appeals from the

judgment of sentence entered on April 11, 2014 by the Court of Common

Pleas of Delaware County, Criminal Division, following his negotiated guilty

plea to possession of a controlled substance.1 Carbonara’s court-appointed

appellate counsel (“Counsel”) seeks to withdraw from representation

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

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we

grant Counsel’s petition to withdraw and affirm Carbonara’s judgment of

sentence.

       We summarize the relevant facts and procedural history of this case as

follows.    On April 10, 2014, Carbonara pled guilty to possession of a



1
    35 P.S. § 780-113(a)(16).


*Retired Senior Judge assigned to the Superior Court.
J-S74040-14


controlled substance and, pursuant to a negotiated plea agreement, the trial

court sentenced him to his negotiated sentence of time served (thirty-five

days) to twenty-three months of incarceration, with immediate parole upon

completion of drug and alcohol evaluation.    On April 21, 2014, Carbonara

wrote to the trial court, advising it of his desire to file an appeal, and the

trial court subsequently appointed Counsel to represent him.       On May 9,

2014, Counsel filed a timely notice of appeal. In his concise statement of

the errors complained of on appeal, Counsel informed the trial court,

pursuant to Rule 1925(c)(4) of the Pennsylvania Rules of Appellate

Procedure, that he intended to file an Anders brief with the Superior Court

in lieu of a Rule 1925(b) statement.

      On appeal, Counsel has filed a petition to withdraw and brief pursuant

to Anders and Santiago.        There are particular mandates that counsel

seeking to withdraw pursuant to Anders and Santiago must follow. These

mandates and the significant protection they provide to an appellant arise

because a criminal defendant has a constitutional right to a direct appeal

and to counsel on that appeal. Commonwealth v. Woods, 939 A.2d 896,

898 (Pa. Super. 2007).      We have summarized these requirements as

follows:

           Direct appeal counsel seeking to withdraw under
           Anders must file a petition averring that, after a
           conscientious examination of the record, counsel
           finds the appeal to be wholly frivolous. Counsel must
           also file an Anders brief setting forth issues that



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            might arguably support the appeal along with any
            other issues necessary for the effective appellate
            presentation thereof.

            Anders counsel must also provide a copy of the
            Anders petition and brief to the appellant, advising
            the appellant of the right to retain new counsel,
            proceed pro se or raise any additional points worthy
            of this Court’s attention.

            If counsel does not fulfill the aforesaid technical
            requirements of Anders, this Court will deny the
            petition to withdraw and remand the case with
            appropriate instructions (e.g., directing counsel
            either to comply with Anders or file an advocate’s
            brief on Appellant’s behalf).

Id. (citations omitted).

      Moreover, there are requirements as to precisely what an Anders

brief must contain:

            [T]he Anders brief that accompanies court-appointed
            counsel’s petition to withdraw … 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.     When faced with a petition to withdraw and

Anders brief, we may not review the merits of the underlying issues without

first deciding whether counsel has properly requested permission to

withdraw. Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa. Super.



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2008) (citation omitted).    If counsel has met these obligations, “it then

becomes the responsibility of the reviewing court to make a full examination

of the proceedings and make an independent judgment to decide whether

the appeal is in fact wholly frivolous.” Santiago, 978 A.2d at 354 n.5.

      We conclude that Counsel has complied with the requirements outlined

above.   Counsel has filed a petition with this Court stating that after

reviewing the record, he finds this appeal to be wholly frivolous. Petition to

Withdraw as Counsel, 8/20/14, ¶¶ 2-3.       Counsel has filed a brief setting

forth the issue that he believes might arguably support an appeal.        See

Anders Brief at 1-3.        In conformance with Santiago, Counsel’s brief

includes summaries of the facts and procedural history of the case and

discusses the issue he believes might support Carbonara’s appeal. See id.

Counsel’s brief sets forth his conclusion that the appeal is frivolous and

includes citation to relevant authority. See id. at 3-4. Finally, Counsel has

attached to his petition the letter that he sent to Carbonara, which enclosed

Counsel’s petition and Anders brief and advised Carbonara of his right to

proceed pro se or with private counsel and to raise any additional issues that

he deems worthy of this Court’s consideration.2      Petition to Withdraw as

Counsel, 8/20/14, at Appendix A. Accordingly, we turn our attention to the

issue raised by Counsel in his Anders brief.



2
  Carbonara did not file a pro se response raising any additional issues for
our consideration.


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      On appeal, Counsel raises the following issue as arguably supporting

an appeal:    “whether [Carbonara’s] maximum sentence of [twenty-three]

months    [of]    incarceration   was     harsh   and    excessive   under   the

circumstances.” Anders Brief at 1. Carbonara asserts that his twenty-three

month maximum sentence is excessive in light of the fact that he has a four-

year-old daughter to support. See id. at 3.

      We agree with Counsel that this issue is frivolous.       Here, Carbonara

pled guilty to possession of a controlled substance and the trial court

sentenced him pursuant to a negotiated plea agreement.               Trial Court

Opinion, 5/30/14, at 1; N.T., 4/10/14, at 3-12.         This Court has held that

“[o]ne who pleads guilty and receives a negotiated sentence may not then

seek discretionary review of that sentence.” Commonwealth v. O’Malley,

957 A.2d 1265, 1267 (Pa. Super. 2008). Moreover, our Supreme Court has

held that “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[.]”      Commonwealth v. Eisenberg, 98 A.3d 1268, 1275 (Pa.

2014).   Accordingly, Carbonara’s attempt to challenge the discretionary

aspects of his sentence is frivolous.3



3
   Moreover, we point out that even if Carbonara had the right to challenge
the discretionary aspects of his sentence in this case, he failed to object to
his sentence during sentencing and/or file a post-sentence motion.
Consequently, Carbonara did not preserve his discretionary aspects of


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     Finally, after conducting our own independent review of the record, we

conclude that there are no issues of merit and agree with Counsel’s

assessment that Carbonara’s direct appeal is frivolous. Accordingly, we find

this appeal wholly frivolous and permit Counsel to withdraw.

     Judgment of sentence affirmed. Petition to withdraw granted.

     Bender, P.J.E. joins the Memorandum.

     Strassburger, J. files a Concurring Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/23/2015




sentencing claim for review. O’Malley, 957 A.2d at 1267 n.3; see also
Commonwealth v. Shugars, 895 A.2d 1270, 1273-74 (Pa. Super. 2006)
(“Issues challenging the discretionary aspects of a sentence must be raised
in a post-sentence motion or by presenting the claim to the trial court during
the sentencing proceedings. Absent such efforts, an objection to a
discretionary aspect of a sentence is waived.”).


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