J-S69033-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

UBALDO DAMIAN NOLASCO,

                            Appellant                 No. 538 MDA 2016


           Appeal from the Judgment of Sentence February 26, 2016
               in the Court of Common Pleas of Franklin County
              Criminal Division at Nos.: CP-28-CR-0001028-2015
                           CP-28-CR-0001039-2015


COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

UBALDO DAMIAN NOLASCO,

                            Appellant                 No. 539 MDA 2016


           Appeal from the Judgment of Sentence February 26, 2016
               in the Court of Common Pleas of Franklin County
              Criminal Division at Nos.: CP-28-CR-0001028-2015
                           CP-28-CR-0001039-2015


BEFORE: STABILE, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                          FILED OCTOBER 06, 2016




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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        In these consolidated cases,1 Appellant, Ubaldo Damian Nolasko,

appeals from the judgment of sentence imposed following his entry of nolo

contendere pleas to one count each of rape of a child and involuntary

deviate sexual intercourse with a child (IDSI),2 at the above-referenced

docket numbers. On appeal, Appellant challenges the trial court’s imposition

of consecutive, rather than concurrent, sentences. Counsel for Appellant has

petitioned to withdraw on the ground that his issue on appeal is wholly

frivolous.3 We grant counsel’s petition to withdraw and affirm the judgment

of sentence.

        The relevant facts and procedural history of this case are as follows.

On October 29, 2015, Appellant entered negotiated nolo contendere pleas to

rape of a child at Docket No. 1028-2015 and IDSI at Docket No. 1039-2015.

The charges stem from Appellant’s rape and sexual abuse of his then-

paramour’s two daughters over a two and one-half year period while they

were between the ages of seven and nine, and eight and ten, years old. In

exchange for the plea, the Commonwealth agreed to dismiss the remaining

charges against him. At the February 26, 2016 sentencing hearing, the trial

court determined that Appellant met the criteria for classification as a
____________________________________________


1
    This Court consolidated the appeals sua sponte on April 22, 2016.
2
    18 Pa.C.S.A. §§ 3121(c) and 3123(b), respectively.
3
  See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).



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sexually violent predator (SVP), and noted that it had considered the

information contained in a pre-sentence investigation report (PSI).        In

accordance with the plea agreement, the court sentenced Appellant to the

agreed-upon term of incarceration of not less than five nor more than ten

years’ on the rape count, followed by a consecutive term of not less than

five nor more than ten years’ on the IDSI count.

       On March 1, 2016, Appellant filed a timely post-sentence motion

acknowledging that the plea agreement provided for consecutive sentences,

but nonetheless requesting that the court modify the aggregate sentence to

run the individual sentences concurrently. See Pa.R.Crim.P. 720(A)(1). On

March 3, 2016, the court entered an order denying the motion. Appellant

filed a timely notice of appeal on April 1, 2016.4 On April 4, 2016, the trial

court ordered Appellant to file a concise statement of errors complained of

on appeal. See Pa.R.A.P. 1925(b). On April 27, 2016, the court entered an

opinion noting that Appellant had not filed a Rule 1925(b) statement as

ordered, and addressing the sentencing issue Appellant raised in his post-

sentence motion.        See Pa.R.A.P. 1925(a).     The next day, counsel for

Appellant filed a Rule 1925(b) statement raising the same sentencing issue,


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4
 We note that although Appellant purports to appeal from the court’s order
denying his post-sentence motion, “a direct appeal in a criminal case can
only lie from the judgment of sentence.” Commonwealth v. Lawrence, 99
A.3d 116, 117 n.1 (Pa. Super. 2014), appeal denied, 114 A.3d 416 (Pa.
2015) (citation omitted).



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and stating his intention to file an Anders brief.        See Pa.R.A.P. 1925(b),

(c)(4).5

       On June 24, 2016, counsel for Appellant filed an Anders brief and a

petition to withdraw as counsel stating his belief that this appeal is wholly

frivolous.   (See Petition to Withdraw as Counsel, 6/24/16, at unnumbered

page 1). Appellant has not responded.

       As a preliminary matter, appellate counsel seeks to withdraw his

representation     pursuant      to   Anders,    supra   and   Santiago,   supra.

Therefore,

       counsel must: (1) petition the court for leave to withdraw stating
       that after making a conscientious examination of the record it
       has been determined that the appeal would be frivolous; (2) file
       a brief referring to anything that might arguably support the
       appeal, but which does not resemble a “no-merit” letter or
       amicus curiae brief; and (3) furnish a copy of the brief to the
       defendant and advise him of his right to retain new counsel or
       raise any additional points that he deems worthy of the court’s
       attention.




____________________________________________


5
  Appellant’s Rule 1925(b) statement was untimely. However, this Court
may address the merits of a criminal appeal where an appellant files an
untimely concise statement if the trial court prepared an opinion addressing
the issue(s) raised on appeal. See Commonwealth v. Thompson, 39 A.3d
335, 340 (Pa. Super. 2012) (“[w]hen counsel has filed an untimely Rule
1925(b) statement and the trial court has addressed those issues we . . .
may address the merits of the issues presented.”) (citation omitted); see
also Commonwealth v. Veon, 109 A.3d 754, 762 (Pa. Super. 2015),
appeal granted in part, 121 A.3d 954 (Pa. 2015).




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

(citations omitted).   “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.”     Id.

(citation omitted).

      [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
      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, supra at 361.

      Here, counsel’s petition to withdraw states that he conducted a

conscientious review of the certified record and determined the appeal is

wholly frivolous. Counsel provided copies of the Anders brief and petition to

withdraw to Appellant. Counsel also sent Appellant a letter explaining

Appellant’s right to obtain new counsel, or to proceed pro se to raise any

additional issues for this Court’s consideration, and has attached a copy of

this letter to the petition to withdraw. See Commonwealth v. Millisock,

873 A.2d 748, 752 (Pa. Super. 2005). In the Anders brief, counsel provides

a statement of the case and refers to relevant law and evidence of record

that might arguably support Appellant’s discretionary aspects of sentencing

claim on appeal. Counsel further states his reasons for his conclusion that


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the appeal is wholly frivolous.         Therefore, counsel has complied with the

requirements of Anders and Santiago. Accordingly, we will proceed to an

independent review of the issue raised in the Anders brief.          See Palm,

supra at 1246.

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

trial court abuse its discretion when it imposed consecutive, rather than

concurrent, sentences and did not modify [Appellant’s] consecutive [five to

ten] year [State Correctional Institution] sentences to concurrent [five to

ten] year [State Correctional Institution] sentences?”        (Anders Brief, at

10).6 Appellant claims that the consecutive sentences are unduly harsh and

excessive. (See id. at 12). This claim merits no relief.

       It is well established “that in terms of its effect upon a case, a plea of

nolo contendere is treated the same as a guilty plea.” Commonwealth v.

Leidig, 850 A.2d 743, 745 (Pa. Super. 2004), affirmed, 956 A.2d 399 (Pa.

2008) (citation omitted). “One 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)

(citation omitted). Therefore, where the trial court imposed a sentence the

defendant negotiated with the Commonwealth, there is no authority to

permit an excessiveness challenge.             See Commonwealth v. Reid, 117

____________________________________________


6
  The Commonwealth has advised this Court of its intention not to file a
brief. (See Commonwealth’s Letter, 7/25/16).



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A.3d 777, 784 (Pa. Super. 2015) (stating claim raising challenge to

discretionary aspects of appellant’s negotiated sentence is unreviewable).

     Here, Appellant’s claim that his consecutive sentences are harsh and

excessive presents a challenge to the discretionary aspects of his negotiated

sentence, which he waived upon the entry of his nolo contendere plea. See

id. Thus, Appellant’s claim is unreviewable. See id. Accordingly, the issue

raised in the Anders brief is frivolous.     Furthermore, after independent

review, we determine that there are no other non-frivolous bases for appeal,

and this appeal is “wholly frivolous.” Palm, supra at 1246.

     Judgment of sentence affirmed.        Petition for leave to withdraw as

counsel granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/6/2016




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