J-S30015-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KRISTOPHER G. LAFFREDO                     :
                                               :
                       Appellant               :   No. 2772 EDA 2018

         Appeal from the Judgment of Sentence Entered August 2, 2018
                In the Court of Common Pleas of Chester County
             Criminal Division at No(s): CP-15-CR-0002059-2018


BEFORE: PANELLA, P.J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, P.J.:                          FILED OCTOBER 02, 2019

        Kristopher G. Laffredo appeals from the judgment of sentence entered

following his negotiated guilty plea to Driving Under the Influence1 (“DUI”),

and Driving with a Suspended License2. Additionally, Laffredo’s court

appointed counsel3, Joshua H. Camson, seeks to withdraw pursuant to Anders

v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

____________________________________________


1   75 Pa.C.S.A. 3802(B)

2   75 Pa.C.S.A. 1543(B)(1.1)(ii)

3 It appears from the record before us that on May 7, 2019, the lower court
issued an order attempting to appoint new counsel, Joseph C. Flanagan, Jr.,
Esquire, to represent Laffredo. See Order, 5/7/2019. As this appeal was
already before us, including Joshua H. Camson’s application to withdraw as
counsel, which we had yet to rule on, we find the lower court’s May 7, 2019
order without effect. See Pa.R.A.P. 1701(a) (“Except as otherwise prescribed
by these rules, after an appeal is taken or review of a quasijudicial order is
sought, the trial court or other government unit may no longer proceed further
in the matter”).
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A.2d 349 (Pa. 2009). We affirm the judgment of sentence and grant counsel’s

petition to withdraw.

      On August 2, 2018, Laffredo entered a negotiated guilty plea to one

count of DUI and one count of driving with a suspended license. He was

sentenced the same day pursuant to the terms of his negotiated plea

agreement, to twelve to forty-eight months’ incarceration for DUI and a

concurrent term of six to twelve months’ incarceration for driving with a

suspended license.

      At the guilty plea colloquy, Laffredo did not object to the plea

agreement, or suggest in any way that his agreement to the guilty plea was

not knowing, intelligent, or voluntary.

      THE COURT: All right. Do you understand that by pleading guilty
      and admitting to what the facts were here, that I can then treat
      you as having committed the crimes that are the subject of this
      guilty plea?

      KRISTOPHER LAFREDO: I do, your Honor.

      THE COURT: Have you had enough time to discuss your case and
      go over all aspects of it with Ms. Koopman, your lawyer?

      KRISTOPHER LAFREDO: Yes.

      THE COURT: Are you satisfied with her services?

      KRISTOPHER LAFREDO: Yes, your Honor.

      THE COURT: Did you sign and initial this guilty plea colloquy?

      KRISTOPHER LAFREDO: I did.

      THE COURT: Did you review it with her before you signed and
      initialed it?

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       KRISTOPHER LAFREDO: Yes.

       THE COURT: Do you understand everything?

       KRISTOPHER LAFREDO: Yes, sir.

       THE COURT: Do you have any questions at all?

       KRISTOPHER LAFREDO: No, your Honor.

       THE COURT: Has anyone threatened or forced you to plead guilty?

       KRISTOPHER LAFREDO: No.

       THE COURT: And other than the promise contained within the plea
       agreement, has anyone promised you anything else to induce you
       to plead guilty?

       KRISTOPHER LAFREDO: No, your Honor.

N.T., Guilty Plea, 8/2/2018, at 5-6. In addition, Laffredo confirmed the same

averments in his written Guilty Plea Colloquy. See Guilty Plea Colloquy, at 6-

7. No post sentence motions were filed.

       On September 12, 2018 and September 14, 2018,4 letters from Laffredo

addressed to the trial judge were docketed. On September 18, 2018, the trial

____________________________________________


4 The September 14 letter is hand dated August 29, 2018. The September 12
letter is undated, but refers to a previous letter, likely the September 14 letter,
that Laffredo had sent to the trial court. Pursuant to the prisoner mailbox rule,
the timeliness of a filing from an incarcerated pro se party is measured from
the date the prisoner places the filing in the institution’s mailbox. See Smith
v. Pa. Bd. Of Prob. and Parole, 683 A.2d 278, 281 (Pa. 1996). The letters
arrived postmarked September 10, 2018. Although, this appeal seems to be
facially untimely, the trial court states in its opinion that the Pennsylvania
Department of Corrections advised the court in writing that all institutions
were placed on lockdown between August 29, 2018 through September 11,



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court issued an order directing the Clerk of Courts to forward these two letters

to this Court as a notice of appeal from the judgment of sentence.

       On September 24, 2018, Laffredo’s court appointed counsel was

terminated and the court issued an order appointing Joshua H. Camsom,

Esquire to represent Laffredo. We turn first to counsel’s petition to withdraw.

To withdraw pursuant to Anders, 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) furnish a copy
       of the [Anders] brief to the [appellant]; and 3) advise the
       [appellant] that he or she has the right to retain private counsel
       or raise additional arguments that the [appellant] deems worthy
       of the court’s attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en

banc) (citation omitted). With respect to the third requirement of Anders,

that counsel inform the appellant of his or her rights in light of counsel’s

withdrawal, this Court has held that counsel must “attach to their petition to

withdraw a copy of the letter sent to their client advising him or her of their

rights.” Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).

An Anders brief must comply with the following requirements:

       (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
____________________________________________


2018, which included restrictions on inmates’ ability to send and receive mail.
Therefore, we will deem his appeal timely filed.

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      case law, and/or statutes on point that have led to the conclusion
      that the appeal is frivolous.

Santiago, 978 A.2d at 361.

      “[I]f counsel’s petition and brief satisfy Anders, we will then undertake

our own review of the appeal to determine if it is wholly frivolous.”

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (brackets

added, citation omitted).

      Counsel filed a petition to withdraw, certifying he has reviewed the case

and determined that Laffredo’s appeal is frivolous. Counsel attached to his

petition a copy of his letter to Laffredo, advising that he may retain new

counsel, raise additional issues pro se, or discontinue his appeal. Counsel also

filed a brief, which includes a summary of the history and facts of the case,

potential issues that Laffredo could raise, and counsel’s assessment of why

those issues are meritless, with citations to relevant legal authority. Counsel

has thus complied with the requirements of Anders and Santiago. Laffredo

did not file a response. We may proceed to review the issues outlined in the

Anders brief.

      First, Counsel raises, “out of an abundance of caution”, a potential issue

regarding the voluntariness of Laffredo’s guilty plea. See Anders Brief for

Appellant, at 11. Counsel notes that although Laffredo did not raise this issue

himself, he could possibly contend the trial court erred by accepting his guilty

plea by alleging the plea was not knowingly, voluntarily, and intelligently

entered.

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

      A defendant wishing to challenge the 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.
      Failure to employ either measure results in waiver. Historically,
      Pennsylvania courts adhere to this waiver principle because [i]t is
      for the court which accepted the plea to consider and correct, in
      the first instance, any error which may have been committed.

Id., at 609-610 (citations and internal quotation marks omitted).

      Instantly, Laffredo cannot obtain review of a claim challenging his guilty

plea on direct appeal because he failed to preserve it properly by either

objecting during the plea colloquy or filing a post-sentence motion to withdraw

the plea. See Pa.R.Crim.P. 720(B)(1)(a)(i). Accordingly, we agree with

Counsel that this issue is frivolous.

      Next, Counsel refers to Laffredo’s claims of trial counsel ineffectiveness

included in his notice of appeal. Laffredo argues trial counsel was ineffective

for failing to raise alleged after-discovered evidence in this matter in a PCRA

petition.

      “Our Supreme Court has made clear that ineffectiveness claims are not

to be raised in the first instance on direct appeal but must await collateral

review.” Commonwealth v. Crosby, 844 A.2d 1271, 1271-1272 (Pa. Super.

2004) (citation omitted). An exception is made where the trial court has held


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a hearing on a claim of trial counsel ineffectiveness and the record has been

fully developed on that issue. In that case, the Supreme Court has held it is

appropriate for this Court to review an ineffectiveness claim on direct appeal.

See id., at 1272.

       Instantly, Laffredo’s ineffectiveness claims were first raised in his pro se

notice of appeal. The trial court has not held a hearing on the issue and the

record has not been developed. Therefore, we do not have a record from which

we can review an ineffectiveness claim. We therefore agree with counsel that

this claim, at this time, is frivolous. Laffredo can raise these claims on

collateral review where the PCRA court will be in a position to ensure an

evidentiary hearing on the claims, if necessary.

       Having reviewed the issues raised in counsel’s Anders brief, which

included the issues raised by Laffredo in his pro se notice of appeal, we agree

with counsel that the within appeal is wholly frivolous.5 As such, we affirm the

judgment of sentence and grant counsel leave to withdraw.

       Judgement of sentence affirmed. Petition for leave to withdraw granted.




____________________________________________


5We note our independent review of the record did not reveal any additional,
non-frivolous issues for appeal.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/2/19




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