J-S58020-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA


                   v.

ROBERT JOHN JAMES, SR.

                        Appellant                 No. 2188 MDA 2015


          Appeal from the Judgment of Sentence October 3, 2013
              In the Court of Common Pleas of Perry County
           Criminal Division at No(s): CP-50-CR-0000055-2013
                         CP-50-CR-0000242-2013
                         CP-50-CR-0000243-2013
                         CP-50-CR-0000500-2012


BEFORE: GANTMAN, P.J., BOWES AND PLATT,* JJ.

MEMORANDUM BY Bowes, J.:                     FILED SEPTEMBER 09, 2016

     Robert John James, Sr. appeals nunc pro tunc from the judgment of

sentence imposed after he pled guilty in four criminal cases. Counsel has

filed a petition to withdraw from representation and a brief pursuant to

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

Santiago, 978 A.2d 349 (Pa. 2009).         We grant counsel’s petition to

withdraw and affirm.

     At criminal action number 500 of 2012, Appellant was charged with

simple assault and harassment based upon the following. At approximately




* Retired Senior Judge assigned to the Superior Court.
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11:30 p.m. on September 29, 2012, Pennsylvania State Trooper Kyle

Milliron was dispatched to investigate a report of a disturbance. Candi Yost 1

told the officer that Appellant arrived at her residence to see his children.

Ms. Yost also told Trooper Milliron that Appellant pounded on the door, and,

when Ms. Yost opened it, Appellant grabbed the children and left. One of

Appellant’s sons attempted to exit Appellant’s vehicle, and Appellant

repeatedly pulled him back inside.             When Ms. Yost intervened, Appellant

“pulled out a knife and told everyone to get away or he would cut them.”

Affidavit of Probable Cause, 10/9/12, at 1.             Appellant thereafter chased

another child “onto the porch of the house with the knife.” Id.

       At case number 55 of 2013, the charges against Appellant included

attempted robbery, conspiracy to commit robbery, attempted theft, simple

assault, and tampering with evidence.            On January 7, 2013, Sherry Sears

reported to police that the following occurred on the 200 block of Market

Street, Newport, Pennsylvania.           Appellant “attacked [Ms. Sears] with a

handgun and demanded money.” Affidavit of Probable Cause, 1/9/13, at 1.

At the time, Ms. Sears had thousands of dollars in cash belonging to her

employer, and she was walking to a bank to deposit the funds. Even though

he pointed a gun at her head, Ms. Sears fought Appellant, and Appellant ran
____________________________________________


1
  Ms. Yost’s relationship to Appellant is not revealed by the affidavit of
probable cause, but, at sentencing, Appellant indicated that on the day in
question, he retrieved his children from his brother-in-law’s house.



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away and entered a car being driven by James Ride, Jr. The two men fled

the scene. The incident was witnessed by several people and was captured

on videotape surveillance from businesses in the area.            The ensuing

investigation revealed that Appellant and Rider had planned the robbery and

were aware of the times that the victim carried cash for deposit. Appellant

and Rider thereafter burned the clothing that they were wearing during the

attempted robbery and threw the handgun into a river.

      At criminal action numbers 242 of 2013 and 243 of 2013, Appellant

was charged with conspiracy to commit the crimes of burglary, trespass,

theft, and receiving stolen property. As to case number 242 of 2013, the

allegations were as follows. On December 12, 2012, police received a report

that a burglary was committed at the Mountain Top Fellowship Church,

Newport. Appellant’s accomplice, Jeremy Lilly, sold some of the stolen items

to a business, and provided his driver’s license at the time of the sale. The

investigation into the burglary led police to Appellant, who admitted that he

was with Lilly when Lilly entered the church. Appellant said that the church

was burglarized so that they could sell its contents for drugs.

      At case number 243 of 2013, the allegations were that Lilly forcibly

entered the business establishment of Harrisburg Electricians JACT, on 42

Loshes Run Road, Wheatfield.     Lilly stole nineteen laptop computers, tools

and other items with a value of approximately $19,500. Appellant admitted




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his involvement in this crime, and was observed by witnesses in possession

of items taken from the business.

      On August 15, 2013, Appellant tendered a guilty plea to simple assault

at 500 of 2012, attempted robbery at 55 of 2013, and conspiracy to commit

burglary at 242 of 2013 and 243 of 2013. There was an agreement as to

certain aspects of the sentence. The sentences at 500 of 2012 and 55 of

2013 were to be concurrent as were the sentences at 242 of 2013 and 243

of 2013. However, there was “no agreement as to concurrency as to 500 &

55 versus 242 and 243.”      Written Plea Agreement, 8/15/13, at 1.      After

conducting an oral colloquy, the trial court accepted the guilty plea.

      The matter proceeded to sentencing on October 3, 2013, where the

sentencing court had the benefit of a presentence report indicating that

Appellant’s prior record score was three. The Commonwealth did not seek

the deadly weapon enhancement for the attempted robbery so that the

standard range of the sentencing guidelines for the offenses, other than the

simple assault, called for thirty to forty-two months.      Appellant received

forty-two months to ten years imprisonment for the attempted robbery with

a concurrent sentence of one to two years on the simple assault.          The

sentences at number 242 and 243 of 2013, sixteen months to five years in

jail, were imposed concurrently to each other but consecutively to the

sentences handed down in the other two cases. Thus, Appellant’s aggregate




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sentence was fifty eight months to fifteen years incarceration. Appellant was

informed of his post-sentencing rights. N.T. Sentencing, 10/3/13, at 18.

     Appellant did not file a motion to withdraw his guilty plea but did

present a timely motion to modify his sentence, wherein his sole claim was

that he was entitled to additional credit for time served. That request was

denied since Appellant received credit for the time at issue in another

criminal case.   Appellant did not file a direct appeal.   On September 23,

2014, Appellant filed a timely pro se motion for post-conviction relief at all

cases.   Counsel was appointed and filed a motion for reinstatement of

Appellant’s direct appeal rights. In an order entered on November 16, 2015,

the court granted Appellant reinstatement of his appellate rights, and this

timely appeal was filed on December 7, 2015.

     As noted, counsel has moved to withdraw. Since we do not consider

the merits of an issue raised in an Anders brief without first reviewing a

request to withdraw, we now address counsel’s petition to withdraw.

Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.Super. 2013) (en banc).

In order to be permitted to withdraw, counsel must meet three procedural

requirements: 1) file a petition for leave to withdraw and state that, after

making a conscientious examination of the record, counsel has concluded

that the appeal is frivolous; 2) provide a copy of the Anders brief to the

defendant; and 3) inform the defendant that he has the right to retain




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private counsel or raise, pro se, additional arguments that the defendant

deems worthy of the court’s attention. Id.

        Counsel’s petition to withdraw states that he reviewed the record and

seeks to withdraw since it establishes that this appeal is wholly frivolous.

The petition also outlines why Appellant’s averment as to why he should be

able to withdraw his guilty plea, under the law, is frivolous.           Counsel

indicates that he notified Appellant that he was seeking to withdraw,

furnished him a copy of the brief filed on appeal, and informed Appellant of

his right to retain new counsel or raise his own averments. A copy of the

letter is attached to the petition to withdraw, and it confirms that counsel

sent Appellant a copy of his petition to withdraw and the brief. In the letter,

counsel told Appellant that he could retain private counsel or proceed pro se.

Accordingly, counsel has complied with the procedural aspects of Anders.

        We   next   examine   whether    counsel’s   Anders   brief   meets   the

substantive elements of Santiago. Pursuant to Santiago, an Anders 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
        case law, and/or statutes on point that have led to the
        conclusion that the appeal is frivolous.

Santiago, supra at 361.



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        Counsel’s brief is compliant with Santiago. It contains a summary of

the procedure and facts and presents an issue that Appellant sought to raise.

Counsel references case law indicating why he arrived at the conclusion that

the issue is frivolous. We now examine the issue: “Should Appellant be able

to withdraw his guilty plea due to statements made by the Judge, and Victim

[of the attempted robbery] at his sentencing proceedings.” Appellant’s brief

at 6.

        We conclude that this averment is waived.             Our decision in

Commonwealth v. Lincoln, 72 A.3d 606 (Pa.Super. 2013), is dispositive.

Lincoln involved an appeal nunc pro tunc from a judgment of sentence

imposed by a trial court after the defendant entered a guilty plea.          On

appeal, the defendant sought to withdraw his guilty plea. The defendant in

Lincoln, like Appellant, had obtained reinstatement of his appellate rights

pursuant to a PCRA petition, but, also like Appellant, Lincoln had not filed a

post-sentence motion seeking to withdraw that plea.

        In Lincoln, this Court held that we could not review the validity of the

guilty plea since the case was on direct appeal, and there was no preserved

challenge to its validity. The panel observed that, “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.” Id. at 609. The Lincoln Court

reiterated established law that “a defendant wishing to challenge the

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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.”      Id. at 609-10.      Such waiver flows from

application of Pa.R.A.P. 302, which provides that issues not raised in the trial

court are waived for purposes of appeal.

      In the present matter, Appellant waived all challenges to the validity of

his guilty plea for purposes of direct appeal by neglecting to object to its

validity at the plea proceeding or in a post-sentence motion.

      We have conducted an independent review of the record, as required

by Commonwealth v. Flowers, 113 A.3d 1246, 1249 (Pa.Super. 2015),

and have concluded that there are no preserved issues of arguable merit

that can be raised in this appeal.         Hence, we concur with counsel’s

assessment and allow him to withdraw.

      Petition of William M. Shreve, Esquire, to withdraw is granted.

Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/2016

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