J-S09017-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

CHELCIE DARDER

                            Appellant                      No. 2628 EDA 2016


              Appeal from the Judgment of Sentence July 22, 2016
                 In the Court of Common Pleas of Pike County
               Criminal Division at No: CP-52-CR-0000543-2013


BEFORE: SHOGAN, STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                                 FILED APRIL 19, 2017

        Appellant, Chelcie Darder, appeals from the July 22, 2016 judgment of

sentence entered in the Court of Common Pleas of Pike County (“trial court”)

following a negotiated guilty plea to retail theft and possession of drug

paraphernalia.1     Counsel for Appellant has filed a brief in accordance with

Anders v. California, 368 U.S. 738 (1969), concurrently with an

application to withdraw as counsel.            Following review, we grant counsel’s

application for leave to withdraw and affirm the judgment of sentence.

        The factual and procedural history is undisputed and the trial court

summarized it as follows.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 3929, and 35 P.S. § 780-113, respectively.
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     On January 6, 2014, the Commonwealth filed its Criminal
     Information charging [Appellant] with one count of Retail Theft
     (M-1) and one count of Possession of Drug Paraphernalia (M).
     On January 23, 2015, [Appellant] executed a written Guilty Plea
     Colloquy whereby she entered a plea of guilty to each of the
     aforementioned criminal charges.       The written Guilty Plea
     Colloquy    included   a   negotiated   agreement     with    the
     Commonwealth that the sentence to be imposed on the Retail
     Theft charge would be “time served to 1 year.” Guilty Plea
     Colloquy, p. 1 (emphasis added). The negotiated, recommended
     sentence on the Possession charge was 1 year of Probation to
     run consecutive to the sentence imposed on the Retail Theft
     charge. The determination of the costs and fines to be imposed
     on both charges was left to the discretion of the [trial court].
     [Appellant] subsequently appeared before the [trial court] with
     her counsel and acknowledged, under oath, the entry of her
     guilty plea. The [trial court] accepted [Appellant’s] guilty plea
     having found it to have been entered knowingly, intelligently[,]
     and voluntarily.

           On July 22, 2016, after [Appellant] had failed to appear for
     a previously scheduled Sentencing Hearing, the [trial court] held
     a Sentencing Hearing at which time [Appellant] was present with
     counsel. [Appellant] appeared by video-conferencing from the
     Pike County Correctional Facility since she was initially being
     arraigned on a bench warrant for failing to appear at the
     previously scheduled sentencing hearing.        The [trial court]
     vacated the bench warrant and [Appellant] and her attorney
     agreed to proceed with sentencing.          [Appellant’s] counsel
     conducted an oral colloquy of his client’s sentence, post-
     sentence[,] and appellate rights prior to imposition of sentence.
     The [trial court] also questioned [Appellant] as to her right to be
     present in court for her sentencing hearing after which she
     voluntarily waived her right to be present in court.           See
     Pa.R.Crim.P. 119(B).

           After affording counsel and [Appellant] an opportunity to
     be heard and noting the review of a pre-sentence investigative
     report, the [trial court] proceeded to enter a sentence in the
     matter as follows. The [trial court] sentenced [Appellant] on
     Retail Theft to a period of incarceration in the Pike County Jail of
     not less than 31 days to no more than 12 months. The [trial
     court] also sentenced [Appellant] on the Possession charge to a
     period of 12 months of probation supervision to run consecutive


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      to the sentence imposed on the Retail Theft charge. The [trial
      court] also granted [Appellant] credit for 31 days’ time served
      and thus immediate parole subject to her signing of her parole
      conditions with the Pike County Probation Department and
      submission of a suitable home plan.

            On August 22, 2016, [Appellant] filed her timely Notice of
      Appeal to the Pennsylvania Superior Court from the July 22,
      2016 Sentencing Order. On August 26, 2016, [the trial court]
      entered an Order directing [Appellant] to file a Concise
      Statement of Matters Complained of on Appeal within 21 days
      thereof. On September 16, 2016, [Appellant] filed a Concise
      Statement of Matters Complained of on Appeal.


Trial Court Opinion, 9/23/2016, at 1-3.    The trial court issued a Pa.R.A.P.

1925(a) opinion on September 23, 2016. Appellant’s counsel filed, in this

Court, an application to withdraw as counsel and an Anders brief on

November 8, 2016, wherein counsel raises one issue which counsel deems

frivolous:   “Whether the [trial court] abused its discretion by imposing a

sentence in this matter that is harsh and excessive based on the

circumstances.” Anders Brief at 6.

      Before this Court can review the merits of the underlying issues, we

must first address counsel’s application to withdraw.   Commonwealth v.

Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc).         In order for

court-appointed counsel to withdraw, counsel must

      (1) petition the court for leave to withdraw stating that, after
      making a conscientious examination of the record, counsel has
      determined that the appeal would be frivolous; (2) file a brief
      referring to anything that arguably might 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 the defendant of his or her right to retain new counsel or



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      raise any additional points that he or she deems worthy of the
      court’s attention.

Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super. 2009) (quoting

Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005)).

      Upon review, we conclude counsel has satisfied the procedural

requirements set forth in Anders.            In the brief, counsel explains her

conclusion that the issue sought to be raised by Appellant is wholly frivolous.

Further, Counsel sent Appellant a letter, along with a copy of the Anders

brief, dated November 4, 2016, advising Appellant of her right to retain new

counsel or act on her own behalf.

      After    finding   that   counsel    has   complied   with   the   procedural

requirements of Anders, this Court must address whether counsel’s brief

satisfied the following substantive requirements:

      (1)     provide a summary of the procedural history and facts,
              with citations to the record;
      (2)     refer to anything in the record 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.

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

      In the Anders brief, counsel has included a statement of the case

which includes the procedural history of the case.           Anders Brief at 7.

Therefore, counsel has complied with the first requirement.



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       The second requirement is to reference anything in the record that

counsel believes arguably supports the appeal. See Santiago, 978 A.2d at

361.    Here, counsel raises one issue: whether the trial court abused its

discretion by imposing a sentence in the aggravated range that is harsh and

excessive based on the circumstances.            Anders Brief at 10.   Counsel,

therefore, has satisfied the second Anders requirement.

       The third substantive requirement of Anders is for counsel to state

her conclusion that the appeal is frivolous, which counsel complied with in

her brief.    Id. at 9.      The final element requires counsel to provide her

reasons for concluding that the appeal is frivolous.     Santiago, 978 A.2d at

361. Counsel complied with this requirement and satisfied the final prong of

the Anders test. 2 Anders Brief at 9-10.

       We find counsel has satisfied the requirements for a petition to

withdraw.       She complied with the procedural requirements, advised

Appellant of her right to retain substitute counsel or to proceed pro se to

bring any additional points to this Court's attention. Thus, we must address

the substantive issues raised by Appellant.

       Appellant’s sole claim is a challenge to the discretionary aspects of

sentencing. Anders Brief at 6. “Generally, a plea of guilty amounts to a

waiver of all defects and defenses except those concerning the jurisdiction of

____________________________________________


2
  Counsel’s brief addresses the issue raised by Appellant; however, the
analysis by counsel was inartful, sloppy, and scarcely addresses the issue.



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the court, the legality of the sentence, and the validity of the guilty plea.”

Commonwealth v. Reichle, 589 A.2d 1140, 1141 (Pa. Super. 1991)

(citations omitted).    Moreover, “[w]here 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.”   Id.     As Appellant pled guilty and was sentenced to an

agreed upon sentence, she cannot challenge the discretionary aspects of

sentencing. Appellant’s claim is meritless.

      As counsel has complied with the technical requirements of Anders

and Santiago, this Court must “conduct an independent review of the

record to discern if there are any additional non-frivolous issues overlooked

by counsel.”   Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa.

Super. 2015). Upon review, we do not discern any non-frivolous issues that

Appellant could have raised.     We therefore grant counsel’s application to

withdraw and affirm the judgment of sentence.

      Judgment of sentence affirmed. Application to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/19/2017




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/19/2017




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