J-S36006-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CLAYTON MICHAEL SUDDUTH

                            Appellant                No. 1004 WDA 2014


             Appeal from the Judgment of Sentence May 27, 2014
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0017328-2013


BEFORE: PANELLA, J., JENKINS, J., and STRASSBURGER, J.*

MEMORANDUM BY PANELLA, J.                              FILED JULY 27, 2015


        Appellant, Clayton Michael Sudduth, appeals from the judgment of

sentence entered on May 27, 2014, after he pled guilty to multiple counts of

sexual abuse of children and other remaining charges. Additionally, his

court-appointed counsel, Brandon P. Ging, Esquire, and Elliott Howsie,

Esquire, have filed an application to withdraw as counsel pursuant to

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

Santiago, 978 A.2d 349 (Pa. 2009). We affirm the judgment of sentence

and grant counsels’ petition to withdraw.




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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       On November 13, 2013, Sudduth was charged with the following

crimes:    Count    1   —    criminal    solicitation   (involuntary   deviate   sexual

intercourse),1 Count 2 — unlawful contact with a minor,2 Count 3 — sexual

abuse of children (dissemination of photographs),3 Count 4 — sexual abuse

of children (dissemination of photographs),4 Count 5 — sexual abuse of

children (dissemination of photographs),5 Count 6 — sexual abuse of

children (child pornography),6 Count 7 — sexual abuse of children (child

pornography),7 Count 8 — sexual abuse of children (child pornography),8

Count 9 — criminal use of communication facility,9 and Count 10 — criminal

attempt (corruption of minors).10

       On May 27, 2014, Sudduth, represented by Owen M. Seman, Esquire,

appeared for a jury trial. Rather than proceed to trial, however, Sudduth and

the Commonwealth entered into a plea agreement. Specifically, the

Commonwealth agreed to withdraw Count 1, Count 2, Count 5, Count 8, and

Count 10. In exchange, Sudduth agreed to plead guilty to the remaining

charges. The parties also agreed to a sentence of imprisonment of not less
____________________________________________


1
  18 Pa.C.S.A. § 902(a).
2
  18 Pa.C.S.A. § 6318(a)(1).
3
  18 Pa.C.S.A. § 6312(c).
4
  18 Pa.C.S.A. § 6312(c).
5
  18 Pa.C.S.A. § 6312(c).
6
  18 Pa.C.S.A. § 6312(d).
7
  18 PA.C.S.A. § 6312(d).
8
  18 Pa.C.S.A. § 6312(d).
9
  18 Pa.C.S.A. § 7512(a).
10
   18 Pa.C.S.A. § 901(a).



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than two to four years and to a period of probation to be set by the trial

court.

         After conducting an extensive oral colloquy with Sudduth, the trial

court accepted the guilty plea. Sudduth waived his right to a pre-sentence

investigation report and the trial court immediately sentenced him as

follows: to a term of imprisonment of not less than two to four years at

Count 3; three years’ probation at Count 4; three years’ probation at Count

6; three years’ probation at Count 7; and to no further penalty at Count 9.

         Attorney Seman did not file a post-sentence motion on Sudduth’s

behalf. Attorney Ging and Attorney Howsie timely filed a notice of appeal on

Sudduth’s behalf.

         After   two   extensions,   due   to    the   unavailability   of   the   guilty

plea/sentencing transcript, and after a conscientious review of the record

and extensive legal research, appointed counsel concluded there were no

non-frivolous issues to raise on direct appeal. Accordingly, they filed a

motion to withdraw as counsel with this Court and submitted an Anders

brief in support thereof.

         When court-appointed counsel seek to withdraw from representation

on appeal, counsel must meet the following requirements.

         [I]n the Anders brief that accompanies court-appointed
         counsel’s petition to withdraw, counsel 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

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      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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Once counsel

have met their 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.” Id. at 355 n.5 (citation omitted).

      Counsel have substantially complied with the technical requirements of

Anders as articulated in Santiago. Additionally, counsel confirm that they

sent a copy of the Anders brief to Sudduth, as well as a letter explaining to

Sudduth that he has the right to proceed pro se or the right to retain new

counsel. Counsel have appropriately appended a copy of the letter to the

motion to withdraw. Sudduth has not filed a response to the petition.

      We will now proceed to examine the issues counsel have set forth in

the Anders brief. Counsel identifies three issues for our review.

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

the defendant waives his right to challenge on direct appeal all non-

jurisdictional defects except the legality of the sentence and the validity of

the plea.” Commonwealth v. Lincoln, 72 A.3d 606, 609 (Pa. Super. 2013),

appeal denied, 87 A.3d 319 (Pa. 2014) (citation omitted).

      Sudduth’s first issue challenges the validity of his guilty plea. In order

to preserve an issue related to the guilty plea, an appellant must either

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“object[ ] at the sentence colloquy or otherwise rais[e] the issue at the

sentencing hearing or through a post-sentence motion.” Commonwealth v.

Tareila, 895 A.2d 1266, 1270 n.3 (Pa. Super. 2006) (citation omitted;

brackets in original). Here, Sudduth did neither. Therefore, this issue is

waived. “Where an appellant fails to challenge his guilty plea in the trial

court, he may not do so on appeal.” Id. (citation omitted).

      Since Sudduth failed to preserve this issue prior to this appeal, he

cannot challenge for the first time on direct appeal the validity of his guilty

plea. See Pa.R.A.P. 302(a). Thus, we agree with counsels’ assessment that

this claim is frivolous. See Commonwealth v. Hankerson, ___ A.3d ___,

___, 2015 WL 3549969, *4 (Pa. Super., filed June 8, 2015) (waived claim is

frivolous).

      Next, Sudduth challenges the legality of his sentence. He somehow

believes that the sentence imposed on each count exceeds the applicable

statutory maximums. This claim is patently frivolous.

      “An illegal sentence is one that exceeds the statutory limits.”

Commonwealth v. Bradley, 834 A.2d 1127, 1131 (Pa. 2003) (citations

omitted).

      Sudduth was sentenced at five charges, each charge being graded as a

felony of the third degree. See N.T., Sentencing, 5/27/14, at 13-15. The

statutory maximum sentence for a third-degree felony is “a term which shall




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be fixed by the court at not more than seven years.” 18 Pa.C.S.A. §

1103(3).

     None of the sentences imposed runs afoul of Section 1103(3).

Therefore, we conclude there is no basis upon which to challenge the legality

of Sudduth’s sentence and we agree with counsel that this issue is frivolous.

     Finally, we consider a challenge to the discretionary aspects of

Sudduth’s sentence. This presents another waived claim. Sudduth never

preserved this issue in the lower court. See Commonwealth v. Shugars,

895 A.2d 1270, 1273-1274 (Pa. Super. 2006) (describing how discretionary

aspects of sentencing claim must be preserved). Therefore, this claim is

waived. See id., at 1274. See also Commonwealth v. LeBarre, 961 A.2d

176, 178 (Pa. Super. 2008) (“We find that because Appellant did not raise

his discretionary aspects claim below, it is waived.”). Thus, we agree with

counsels’ assessment that this claim is frivolous. See Hankerson, ___ A.3d

at ___, 2015 WL 3549969, *4.

     After examining the issues contained in the Anders brief and

undertaking our independent review of the record, we concur with counsel’s

assessment that the appeal is wholly frivolous.


Judgment of sentence affirmed. Petition to withdraw as counsel granted.
Judgment Entered.




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Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/27/2015




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