J-S74003-16


NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

ROBERT LEE

                            Appellant                   No. 2948 EDA 2015


              Appeal from the Judgment of Sentence August 21, 2015
               In the Court of Common Pleas of Philadelphia County
                Criminal Division at No(s): CP- 51 -CR- 0000933 -2014

BEFORE:       OTT, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                       FILED OCTOBER 24, 2016

        Robert Lee    ( "Appellant ")   appeals from the judgment of sentence

entered in the Court of Common Pleas of Philadelphia entered after he pled

guilty to possession of        a   controlled substance with intent to deliver

( "PWID "),   criminal conspiracy, and possession of    a   handgun by   a   person

prohibited from having one ( "VUFA ").        Sentenced to downward departure,

concurrent terms of three -and -one -half to seven years' incarceration with      a

five -year probationary tail upon the court's order granting his motion for

reconsideration, Appellant challenges the sufficiency of the evidence offered

to support the charges, the discretionary aspects of his sentence, and the

adequacy of plea counsel's representation.         Appellate counsel has filed    a




*   Former Justice specially assigned to the Superior Court.
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petition to withdraw from                   representation and          an    accompanying 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.

      On August 30, 2013, Appellant sold Oxycodone and Xanax pills to a

confidential        informant      while      under      police      surveillance,     answered       a

subsequent drug- related phone call made by police, and was found in

possession of more pills,          a     large amount of currency, and the cellular phone

used to arrange the controlled buy during                  a   search incident to his arrest. A

subsequent search of the home he had exited prior to the controlled buy

disclosed loaded, operable firearms and                        a   cache of Oxycodone.             N.T.

6/10/15 at      6 -9.         On June 10, 2015, Appellant pled                guilty to the above

charges and acknowledged under oath that his plea was voluntary, informed,

and intelligent.         Id. at     8 -9.     The court initially sentenced Appellant to

concurrent, below- mitigated range sentences of four to ten year sentences

but, on September 18, 2015, granted Appellant's motion for reconsideration

and   reduced           his     sentence      to   three -and -one -half       to    seven       years'

incarceration.          Appellant filed no post- sentence motion to his revised

sentence but, instead, filed this timely direct appeal.

      On October 6, 2015, the court appointed present counsel to represent

Appellant on direct appeal. Appellant informed newly- appointed counsel that

he wished to challenge the sufficiency of the evidence offered to support the

weapons charge against him, for he neither owned nor resided in the home

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in which contraband was         recovered.        He also sought to advance the claim

that plea counsel rendered ineffective assistance of counsel            in advising him

to plead guilty and in failing to inform him that         a   new post- sentence motion

for reconsideration of sentence would be required to challenge the court's

revised     sentence.    On     November 2,          2015, however,    counsel filed   a

statement of intent to file an Anders brief, averring that his review of the

entire record and pertinent authority on relevant issues led him to conclude

there are no meritorious, non -frivolous issues to raise on appeal.

      By way of our March 29, 2016            per curiam order, we denied counsel's
initial petition to withdraw and accompanying Anders brief for non-

compliance with procedures set forth in Santiago.                On April 28, 2016, in

compliance with our order, counsel re- petitioned this Court to withdraw as

counsel and submitted     a    new   Anders brief.
      We do not consider the merits of an issue raised in an              Anders brief
without first reviewing         a    request 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 private counsel

or raise,   pro se, additional arguments that the defendant deems worthy of
the court's attention.   Id.
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      Counsel's     petition   to       withdraw     conforms    to   the   procedural

requirements of Anders. The petition indicates he reviewed the record and,

based on that review, determined that this appeal is totally frivolous.           It   also

indicates that counsel mailed       a   copy of the motion to withdraw and the brief

to Appellant and that he informed Appellant of his right to hire counsel,

represent himself in this appeal, or write to the court raising any additional

points which he believes are worthy of the court's attention.               A   letter to

Appellant   is   attached to the motion to withdraw, and it confirms that

Appellant received   a   copy of the documents in question and was told about

his right to proceed with private counsel or pro se.

      We now examine the briefing requirements when counsel seeks to

withdraw on direct appeal. 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.
      Appellant's brief satisfies the mandates of Santiago. It first sets forth

the procedural and factual history of this matter.           Counsel then addresses

each issue Appellant wishes to raise, acknowledges that Appellant denies

possession of weapons recovered in           a   home in which he did not reside, and

discusses   why under existing            authority Appellant's claims are either

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frivolous, waived, or must be deferred until collateral review.                   Thus, we

determine that counsel should be permitted to withdraw.

        Accordingly, we will proceed to examine the appeal and make an

independent determination of whether it is wholly frivolous.                The       Anders
brief first identifies Appellant's assertion that insufficient evidence supported

a   VUFA charge where he did          not reside at the house searched and,

therefore, could not have possessed the guns located therein.                     Relatedly,

Appellant also asserts that counsel was ineffective for advising him to plead

guilty on such charge. To the extent this issue presents           a     challenge to the

sufficiency of the evidence, our cases state 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." Commonwealth v. Lincoln, 72 A.3d 606, 609 (Pa. Super.

2013)    (citation omitted), appeal denied, 87 A.3d                 319        (Pa.    2014).

Appellant, therefore, waived his sufficiency of the evidence claim when he

pled guilty to VUFA.

        Regarding    Appellant's   ineffectiveness     claim      tied     to     counsel's

advisement that he should plead guilty to VUFA, this claim must be deferred

to collateral review pursuant to the dictates of our Supreme Court in

Commonwealth v. Grant, 813 A.2d 726              (Pa. 2002), wherein our Supreme

Court held that     a   claim of ineffective assistance of counsel cannot be

entertained on direct appeal.      See Commonwealth v. Barnett, 25 A.3d

371, 377 (Pa.Super. 2011) (en banc) (pursuant to Grant's refinement in

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Commonwealth               v.    Liston,        977       A.2d    1089     (Pa.   2009),   and

Commonwealth v. Wright, 961 A.2d 119, 148                             n. 22 (Pa.   2008), the

Superior Court       is   not permitted to review ineffective assistance of counsel

claims on direct appeal unless the defendant has expressly, knowingly, and

voluntarily waived        PCRA   review).

     Appellant also contends that his below- mitigated range, three -and-

one -half to seven -year sentence is excessive and reflects an abuse of the

sentencing court's discretion. "A challenge to the discretionary aspects of                  a

sentence must be considered           a   petition for permission to appeal, as the right

to pursue such        a   claim is not absolute."           Commonwealth v. Hoch, 936
A.2d 515, 518 (Pa.Super.2007) (citation omitted).                        In order to reach the

merits of such   a    claim, this Court must determine:

     (1) Whether appellant has filed a timely notice of appeal; (2)
     whether the issue was properly preserved at sentencing or in a
     motion to reconsider and modify sentence; (3) whether
     appellant's brief has a fatal defect; and (4) whether there is a
     substantial question that the sentence appealed from is not
     appropriate under the Sentencing Code.

Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa.Super. 2011)
(footnotes omitted).

      Here, Appellant failed to preserve this issue with either an objection

before the sentencing court or            a   timely post- sentence motion. Therefore, he
has waived this claim.           See Commonwealth v. Mann, 820 A.2d 788, 794

(Pa.Super. 2003) (citation omitted)               ( "[I]ssues    challenging the discretionary

aspects of sentencing must be raised in               a   post- sentence motion or by raising


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the claim during the sentencing proceedings.                 Absent such efforts, an

objection to   a   discretionary aspect of   a   sentence is waived. ").

         Appellant's remaining issue goes to plea counsel's failure to preserve

his challenge to the discretionary aspects of his sentence.            As noted above,

however, we must defer resolution of this ineffective assistance of counsel

claim to collateral review pursuant to the dictates of Grant and its progeny.

         Judgment of sentence    is   affirmed. Petition to withdraw representation

isgranted.
Judgment Entered.



     /
J    seph D. Seletyn,
Prothonotary


Date: 10/24/2016




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