J-S54036-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    TEONIA TERRI KIMBRO                        :
                                               :
                      Appellant                :   No. 326 WDA 2017

            Appeal from the Judgment of Sentence January 24, 2017
                 In the Court of Common Pleas of Erie County
             Criminal Division at No(s): CP-25-CR-0002723-2015


BEFORE:      OTT, MOULTON, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                       FILED SEPTEMBER 21, 2017

        Appellant, Teonia Terri Kimbro, appeals from the judgment of sentence

entered in the Erie County Court of Common Pleas. Her attorney, Jessica A.

Fiscus, Esq. (“Counsel”), has filed an Anders1 petition for leave to withdraw.

Counsel identifies the following issues on appeal: (1) whether Appellant

entered a knowing, voluntary and intelligent plea; and (2) whether the trial

court abused its discretion in its sentence. We grant Counsel’s petition to

withdraw and affirm.




____________________________________________
*
    Former Justice specially assigned to the Superior Court.
1
    Anders v. California, 386 U.S. 738 (1967).
J-S54036-17


        On January 24, 2017, Appellant entered a guilty plea to one count of

third degree murder2 and one count of burglary.3        N.T., 1/24/17, at 4. The

Commonwealth agreed to recommend a sentence of thirty to sixty years’

imprisonment. Id. The court imposed the agreed upon sentence. Id. at

12-13.    Appellant signed a “Statement of Understanding of Rights Prior to

Guilty/No Contest Plea” and an “Acknowledgement of Post Sentencing and

Appellate Rights.”       Appellant’s plea counsel did not file a post-sentence

motion.4 Present counsel filed a timely notice of appeal. Counsel filed an

Anders petition and brief with this Court.



____________________________________________
2
    18 Pa.C.S. § 2502(c).
3
    18 Pa.C.S. § 3502(a)(1).
4
  Appellant filed an untimely pro se post-sentence letter with the court on
February 8, 2017, which was forwarded to Counsel. We note that

           [p]ursuant to our Rules of Appellate procedure and
           decisional law, this Court will not review the pro se filings
           of a counseled appellant. Commonwealth v. Nischan,
           928 A.2d 349, 355 (Pa. Super. 2007) (noting that an
           appellant’s pro se filings while represented by counsel are
           legal nullities) [ ]; Commonwealth v. Ellis, [ ] 626 A.2d
           1137, 1140–41 ([Pa.] 1993) (same). Rule 3304 of the
           Pennsylvania Rules of Appellate procedure provides as
           follows:

              Rule 3304. Hybrid Representation

              Where a litigant is represented by an attorney before
              the Court and the litigant submits for filing a petition,
              motion, brief or any other type of pleading in the



                                           -2-
J-S54036-17


       Counsel identifies the following issues in the Anders brief:

          1. Did Appellant enter a knowing, voluntary and intelligent
          plea?

          2. Did the trial court commit an abuse of discretion when it
          imposed Appellant’s sentence?

Anders Brief at 8.5

       “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. Wimbush, 951 A.2d

379, 382 (Pa. Super. 2008) (citation omitted).

          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

____________________________________________

              matter, it shall not be docketed but forwarded to
              counsel of record.

          Pa.R.A.P. 3304.

          In Ellis, our Supreme Court wrote that “[a] represented
          appellant may petition to terminate his representation; he
          may, acting pursuant to the rules of criminal procedure,
          proceed on his own behalf. Conversely, he may elect to
          allow counsel to take his appeal[.]” Ellis, [ ] 626 A.2d at
          1141 [ ]. An appellant may not, however, offer pro se
          filings while he continues to be represented by counsel.
          Id.

Commonwealth v. Glacken, 32 A.3d 750, 752-53 (Pa. Super. 2011).
5
   Appellant was ordered to file a Pa.R.A.P. 1925(b) statement of errors
complained of on appeal. Counsel informed the court that she intended to
file an Anders brief with this Court, and therefore did not file a Rule 1925(b)
statement. See Pa.R.A.P. 1925(c)(4).



                                           -3-
J-S54036-17


         [Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009)].
         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 reasons for concluding 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 also 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, 879-80 (Pa. Super. 2014)

(some citations omitted). If counsel complies with these requirements, “we

will make a full examination of the proceedings in the lower court and render

an independent judgment [as to] whether the appeal is in fact ‘frivolous.’”

Id. at 882 n.7 (citation omitted).

      Instantly, Counsel provided a factual summary of the case with

citations to the record.    Anders Brief at 9-11.      Counsel explained the

relevant law and discussed why Appellant’s claims are meritless, and noted




                                     -4-
J-S54036-17


that she found nothing in the record that could arguably support the appeal.

Id. at 13-15. In conclusion, Counsel’s Anders brief stated:

             Appellant’s counsel did not object to any portion of the
         colloquy and/or file a post-sentence motion to withdraw
         the plea.     The Superior Court cannot review a claim
         challenging the validity of the plea on direct appeal where
         the defendant either did not object during the plea
         colloquy or in a timely-filed post-sentence motion to
         withdraw the plea. As this claim is waived, it is wholly
         frivolous.

                                 *    *    *

           Appellant now asserts that the trial court failed to
         adequately consider her age, her childhood history, her
         education, her employment history, her expression of
         remorse, and her cooperation.

             The undersigned asserts that Appellant’s claim is wholly
         frivolous because it was not raised at sentencing or in a
         timely, counseled post-sentence motion.

                                 *    *    *

            Additionally, Appellant does not have a viable challenge
         to the legality of her sentence. Appellant’s twenty to forty
         year sentence for third degree murder did not exceed the
         statutory maximum.        Appellant’s ten to twenty year
         sentence of [sic] burglary, graded as a first degree felony,
         does not exceed the statutory maximum.

Anders Brief at 13-15 (citations omitted). Counsel also provided Appellant

with a copy of the Anders brief and a letter advising Appellant of her rights.

Counsel’s Mot. to Withdraw, 12/15/16.      In light of the foregoing, we hold

Counsel has complied with the requirements of Santiago. See Orellana,

86 A.3d at 879-80. Appellant has not filed a pro se or counseled brief. We




                                     -5-
J-S54036-17


now examine the record to determine whether the issues on appeal are

wholly frivolous. See id. at 882 n.7.

      First, the Anders brief raises the following issue for our review: “Did

Appellant enter a knowing, voluntary and intelligent negotiated guilty plea?”

Anders Brief at 13.

      As a prefatory matter, we consider whether the issue is waived.

         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.   Pa.R.Crim.P.   720(A)(1),
         (B)(1)(a)(i). Failure to employ either measure results in
         waiver. Historically, Pennsylvania courts adhere to this
         waiver principle because [i]t is for the court which
         accepted the plea to consider and correct, in the first
         instance, any error which may have been committed.

Commonwealth v. Lincoln, 72 A.3d 606, 609–10 (Pa. Super. 2013) (some

citations and quotation marks omitted).

      Instantly, the court sentenced Appellant on January 24, 2017.

Appellant did not challenge the voluntariness of her guilty plea during the

guilty plea colloquy or file a motion to withdraw the plea within ten days

after sentencing. Therefore, Appellant waived her challenge to the validity

of her guilty plea. See id.

      Lastly, the Anders brief raises the issue of whether the trial court

abused its discretion when it imposed Appellant’s thirty to sixty year

sentence. Appellant avers “the trial court failed to adequately consider her




                                    -6-
J-S54036-17


age, her childhood history, her education, her employment history, her

expression of remorse, and her cooperation.” Anders Brief at 14.

      Initially, we consider whether Appellant has waived any challenge to

the discretionary aspect of her sentence.    In Lincoln, this Court opined:

“Settled Pennsylvania law makes clear that by entering a guilty plea, the

defendant waives his right to challenge on direct appeal all nonjurisdictional

defects except the legality of the sentence and the validity of the plea.”

Lincoln, 72 A.3d at 609. ”Where the plea agreement contains a negotiated

sentence which is accepted and imposed by the sentencing court, there is no

authority to permit a challenge to the discretionary aspects of that

sentence.” Commonwealth v. Reichle, 589 A.2d 1140, 1141 (Pa. Super.

1991); see also Commonwealth v. Baney, 860 A.2d 127, 131 (Pa. Super.

2004) (holding a defendant “having entered a valid negotiated guilty plea, . .

. cannot challenge the discretionary aspects of his sentence”). We have long

recognized

         [i]f either party to a negotiated plea agreement believed
         the other side could, at any time following entry of
         sentence, approach the judge and have the sentence
         unilaterally altered, neither the Commonwealth nor any
         defendant would be willing to enter into such an
         agreement. Permitting a discretionary appeal following the
         entry of a negotiated plea would undermine the designs
         and goals of plea bargaining, and would make a sham of
         the negotiated plea process.

Reichle, 589 A.2d at 1141 (citations and quotation marks omitted).




                                    -7-
J-S54036-17


      Appellant entered a negotiated guilty plea that included a negotiated

sentence, and the court accepted the plea and imposed the negotiated

sentence.    See Baney, 860 A.2d at 131; Reichle, 589 A.2d at 1141.

Therefore, she waived any challenge to the discretionary aspect of her

sentence and her challenge would not be cognizable in this appeal.     See

Lincoln, 72 A.3d at 609; Baney, 860 A.2d at 131.

      A review of the record reveals no other meritorious issue that could

provide relief.

      Judgment of sentence affirmed.      Counsel’s petition to withdraw

granted.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/21/2017




                                   -8-
