J-S62004-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                             Appellee

                        v.

KYLE WALTER JONES

                             Appellant             No. 449 MDA 2016


             Appeal from the Judgment of Sentence March 2, 2016
               in the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0004127-2015


BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                     FILED SEPTEMBER 28, 2016

        Kyle Walter Jones (“Appellant”) appeals from the March 2, 2016

judgment of sentence entered in the Lancaster County Court of Common

Pleas following his guilty plea convictions for one count of burglary,1 one

count of conspiracy to commit burglary,2 two counts of robbery,3 one count

of conspiracy to commit robbery,4 two counts of unlawful restraint,5 one



____________________________________________


1
    18 Pa.C.S. § 3502.
2
    18 Pa.C.S. § 903.
3
    18 Pa.C.S. § 3701.
4
    18 Pa.C.S. § 903.
5
    18 Pa.C.S. § 2902.
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count of unlawful restraint of a minor,6 and three counts of terroristic

threats.7   Appellant’s counsel has filed an Anders8 brief, together with a

petition to withdraw as counsel. We affirm the judgment of sentence and

grant counsel’s petition to withdraw.

        On March 2, 2016, Appellant entered a negotiated guilty plea to the

above-referenced charges.          On the same day, the trial court sentenced

Appellant pursuant to the negotiated plea to an aggregate sentence of 7 to

20 years’ incarceration.9 On March 4, 2016, Appellant filed a pro se post-

sentence motion for modification of the sentence imposed seeking to have

his sentenced reduced to an aggregate sentence of two to ten years’

incarceration. The trial court did not rule on Appellant’s motion. Instead,

the Prothonotary forwarded the motion to counsel on March 15, 2016, who

filed a notice of appeal on March 17, 2016 in lieu of litigating Appellant’s pro
____________________________________________


6
    18 Pa.C.S. § 2902.
7
    18 Pa.C.S. § 2706.
8
    Anders v. California, 386 U.S. 738 (1967).
9
  Specifically, Appellant received three to eight years’ incarceration on the
burglary conviction; three to eight years’ incarceration on the first robbery
conviction, to be served consecutively to the burglary conviction; one to four
years’ incarceration for the unlawful restraint of a minor conviction, to be
served consecutively to the burglary and robbery convictions; three to six
years’ concurrent incarceration on the second robbery conviction; two to
four years’ concurrent incarceration on the conspiracy to commit burglary
conviction; and six to twenty-four months’ concurrent incarceration for each
of the unlawful restraint convictions.




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se motion for modification. Counsel filed a Pa.R.A.P. 1925(b) statement of

matters complained of on appeal on April 6, 2016.10 The trial court filed its

Pa.R.A.P. 1925(a) Opinion on April 19, 2016.        On May 25, 2016, counsel

filed the Anders brief together with a motion to withdraw as counsel with

this Court. Appellant filed no further submissions either pro se or through

privately-retained counsel.

        As previously noted, Appellant’s counsel has filed an application

seeking to withdraw from representation pursuant to Anders v. California

and its Pennsylvania counterpart, Commonwealth v. Santiago.11             Before

addressing the merits of Appellant’s underlying issues presented, we must

first pass on counsel’s petition to withdraw. Commonwealth v. Goodwin,

928 A.2d 287, 290 (Pa.Super.2007) (en banc).

        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 Santiago. 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 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

____________________________________________


10
   Counsel’s Pa.R.A.P. 1925 filing stated that Appellant had no issues of
arguable merit to raise on direct appeal. See Pa.R.A.P. 1925(c)(4).
11
     978 A.2d 349 (Pa.2009).



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      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 must also provide the appellant with a

copy of the Anders brief, together with a letter that advises the appellant of

his or her 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. Nischan, 928         A.2d 349, 353

(Pa.Super.2007).        Substantial compliance with these requirements is

sufficient.        Commonwealth    v.   Wrecks,    934   A.2d   1287,   1290

(Pa.Super.2007). “After establishing that the antecedent requirements have

been met, this Court must then make an independent evaluation of the

record to determine whether the appeal is, in fact, wholly frivolous.”

Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super.2006).

      Instantly, counsel contemporaneously filed a petition to withdraw as

counsel with the Anders brief. The petition states counsel’s determination

that no non-frivolous appellate issues exist.   See Petition to Withdraw As

Counsel, ¶ 1. Further, counsel’s letter to Appellant illustrates that counsel

notified Appellant of his withdrawal request, forwarded a copy of the brief to

Appellant, and explained Appellant’s right to proceed pro se or with new,

privately-retained counsel to raise any additional points or arguments that




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Appellant believed had merit.12 See Letter to Appellant, May 27, 2016.13 In

the Anders brief, counsel provides a summary of the facts and procedural

history of the case with citations to the record, refers to evidence of record

that might arguably support the issue raised on appeal, provides citations to

relevant case law, and states his conclusion that the appeal is wholly

frivolous   and    his   reasons    therefor.    See   Anders   Brief,   pp.   5-11.

Accordingly, counsel has substantially complied with the requirements of

Anders and Santiago.

       As Appellant filed neither a pro se brief nor a counseled brief with new,

privately-retained counsel, we review this appeal based on the discussion

contained within the Anders brief, which relates to Appellant’s pro se

motion for modification.


____________________________________________


12
   The proofs of service attached to the Anders brief and counsel’s Motion to
Withdraw indicated counsel served the Lancaster County District Attorney’s
Office with these documents, but not Appellant. Accordingly, on August 11,
2016, we ordered counsel to produce and file with this Court evidence of
service of the Anders brief and Motion to Withdraw upon Appellant. On
August 12, 2016, counsel filed Counsel’s Verification of Prior Service to
Appellant, verifying counsel had indeed mailed Appellant copies of the
Anders brief and Motion to Withdraw. We would have accepted counsel’s
assertion that he sent Appellant copies of these documents had he made
such an assertion in his original certificate of service. Therefore, we now
accept counsel’s verification, made as an officer of the Court, that he served
Appellant with copies of the Anders brief and Motion to Withdraw as
indicated in his May 27, 2016 letter.
13
  In our August 11, 2016 judgment order, this Court improperly identified
counsel’s May 27, 2016 letter as counsel’s March 27, 2016 letter.



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      Initially, because he was represented by counsel at the time he filed it,

Appellant’s post-sentence motion for modification was a nullity.           See

Commonwealth       v.   Nischan,    928     A.2d   349,   355   (Pa.Super.2007)

(describing counseled defendant’s pro se post-sentence motion as “a nullity,

having no legal effect.”).   Additionally, Appellant waived any discretionary

aspects of sentence claim by entering into a negotiated guilty plea in this

matter.   Generally, a plea of guilty constitutes a waiver of all defects and

defenses excepting the voluntariness of the plea, the jurisdiction of the court

and the legality of the sentence.   Commonwealth v. Stewart, 867 A.2d

589, 591 (Pa.Super.2005). While this Court has ruled that an appellant may

challenge the discretionary aspects of sentence after pleading guilty without

an agreement to the terms of the sentence, appellants may not raise a

discretionary aspects of sentence claim regarding a negotiated sentence.

Id. As the trial court further explained:

      [Appellant] would not have been entitled to any relief [on his
      motion to modify sentence] because the length of [Appellant’s]
      sentence    was   specifically agreed   upon     between   the
      Commonwealth and [Appellant] as part of his plea agreement.

                                     ...

             In this case, this [c]ourt thoroughly reviewed the terms of
      the plea agreement with [Appellant]. The charges [Appellant]
      was pleading guilty to and the sentence he would be receiving
      were clearly and unambiguously stated on the plea agreement
      form [Appellant] signed. Moreover, [Appellant] acknowledged
      on the record that he understood the terms of his plea. Because
      [Appellant’s] plea contained a negotiated term of confinement,
      this [c]ourt did not have authority to later modify that sentence,
      absent consent from the Commonwealth. The Commonwealth
      clearly did not consent to a reduction in [Appellant’s] sentence.

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      Consequently, reducing [Appellant’s] sentence would have
      impermissibly deprived the Commonwealth of the full benefit of
      the agreement it reached with [Appellant] and would have
      allowed [Appellant], in turn, to receive a windfall. Therefore,
      even if [Appellant] had properly filed a counseled post-sentence
      motion, his request to modify sentence would have been
      unsuccessful.

Trial Court Pa.R.A.P. 1925(a) Opinion, filed April 19, 2016, p. 4.

      We agree with counsel that Appellant’s claim is wholly frivolous.

Moreover, our independent review of the record has revealed no other

preserved issues of arguable merit. Accordingly, we affirm the judgment of

sentence.

      Judgment of sentence affirmed.         Counsel’s petition to withdraw

granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/28/2016




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