J-S58019-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA


                   v.

LUIS RAMOS

                        Appellant                  No. 2138 MDA 2015


          Appeal from the Judgment of Sentence March 26, 2014
              In the Court of Common Pleas of Berks County
           Criminal Division at No(s): CP-06-CR-0001319-2013


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

MEMORANDUM BY BOWES, J.:                         FILED AUGUST 16, 2016

     Luis Ramos appeals nunc pro tunc from the March 26, 2014 sentence

of fifteen to forty years imprisonment that the trial court imposed after

Appellant entered a negotiated guilty plea to third-degree murder. 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.

     In this case, Appellant was charged with first-degree murder, third-

degree murder, two counts of aggravated assault, and possession of an

instrument of crime in connection with the December 29, 2012 shooting

death of Raymond Miranda.      At approximately 1:00 a.m. on the day in


* Retired Senior Judge assigned to the Superior Court.
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question, Mr. Miranda was attempting to refuel his black Cadillac, which had

run out of gas earlier that night, on the 100 block of South 4 th Street,

Reading.       A witness saw Appellant approach Mr. Miranda as he was

attending to his car. The victim tried to speak to Appellant, but Appellant

immediately pointed a silver handgun at him and shot him twice in the torso,

killing him.

       On March 26, 2014, Appellant tendered guilty pleas at three separate

criminal actions,1 including the one at issue herein. At the oral colloquy, the

trial court explained that the maximum sentence that Appellant faced for

third-degree murder was forty years in jail. The written colloquy indicated

that the plea was a negotiated plea and that Appellant would receive fifteen

to forty years imprisonment in return for his tender of the guilty plea. After

accepting the pleas, the court proceeded immediately to sentencing and was

in possession of a presentence report, to which there were no corrections.

Appellant had a prior record score of two and the sentencing guidelines

outlined a standard range sentence for third-degree murder of eight to

twenty years. Appellant was sentenced, in accordance with the negotiated



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1
  At case number 1845 of 2013, Appellant pled guilty to five counts of
aggravated assault because he stabbed five young women, seriously injuring
them. In criminal action number 4590 of 2012, Appellant entered a guilty
plea to possession of a controlled substance (cocaine) with intent to deliver.



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agreement, to fifteen to forty years for the third-degree murder offense.2

Appellant’s post-sentencing rights were explained to him in both English and

Spanish.       N.T.   Plea    and   Sentencing,   3/26/14,   at   20;   Defendant’s

Acknowledgement of Post Sentence Procedures following Guilty Plea,

3/26/14.

       Appellant did not file a timely post-sentence motion. On February 9,

2015, Appellant filed a timely PCRA petition, counsel was appointed, and

counsel filed an amended petition. Therein, Appellant claimed that he asked

counsel to file a direct appeal and that request was ignored. On November

9, 2015, the trial court issued an order granting Appellant the right to file an

appeal nunc pro tunc from the judgment of sentence. Appellant thereafter

filed this timely appeal.

       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

____________________________________________


2
   Accordingly, Appellant does not have the ability to challenge the
discretionary aspects of his sentence. Commonwealth v. Reichle, 589
A.2d 1140, 1141 (Pa.Super. 1991) (“Where 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.”)



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requirements: 1) 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.

        Counsel’s petition to withdraw states that she reviewed the complete

record and applicable law and researched all the issues. Counsel continues

that, after a conscientious examination of the record and consideration of

Appellant’s input, she concluded that the appeal is wholly frivolous.

Attached to the Anders/Santiago brief is a letter counsel sent to Appellant.

In the letter, counsel indicated that she was seeking to withdraw. Counsel

furnished Appellant a copy of the brief and petition to withdraw, and counsel

told Appellant that he had the right to retain new counsel or to proceed pro

se and raise any points the he deemed worthy of our attention. The address

of this Court’s prothonotary was provided.           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

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      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.

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

the procedure and facts and extensively delineates the applicable law.

Counsel establishes that the guilty plea proceedings and sentence were

proper under that precedent.

      Appellant raises two issues that could arguable support this appeal:

“A. Was Appellant's guilty plea valid? B. Was Appellant's sentence legal?”

Appellant’s brief at 5.   We conclude that the first issue 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 entered 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.

      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

the validity of the plea. The panel observed that, “Settled Pennsylvania law

makes clear that by entering a guilty plea, the defendant waives his right to

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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

also reiterated precedent providing that 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. 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 by neglecting to object

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

      On the other hand, Appellant’s second issue, which questions whether

his sentence is legal, cannot be waived. Commonwealth v. Infante, 63

A.3d 358 (Pa.Super. 2013).      Herein, Appellant pled guilty to third-degree

murder, which carries a maximum sentence of forty years.          18 Pa.C.S. §

1102(d). Hence, Appellant’s fifteen to forty year term of imprisonment was

within the statutory maximum and minimum, and there is no question that

his sentence, which involved no mandatory minimum and was the only

offense for which he was sentenced, was legal. Hence, the second issue on

appeal is wholly frivolous.

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

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

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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 her to withdraw.

     Petition of Lara Glenn Hoffert, Esquire, to withdraw is granted.

     Judgment of sentence affirmed.

     Judge Platt joins the memorandum.

     President Judge Gantman concurs in the result.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/16/2016




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