J-A07027-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                                :        PENNSYLVANIA
                                                :
                v.                              :
                                                :
                                                :
    TIMOTHY SCHILLINGER                         :
                                                :
                       Appellant                :   No. 1987 EDA 2018

           Appeal from the Judgment of Sentence Entered May 2, 2018
       In the Court of Common Pleas of Bucks County Criminal Division at
                        No(s): CP-09-CR-0007531-2017


BEFORE:      OLSON, J., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY DUBOW, J.:                                    FILED MAY 06, 2019

        Appellant, Timothy Schillinger, appeals from the May 2, 2018 Judgment

of Sentence imposed after he entered an open guilty plea to one count each

of Stalking and Terroristic Threats.1          On appeal, Appellant challenges the

discretionary aspects of his sentence. With this appeal, Appellant’s counsel

has filed an Application for Leave to Withdraw as Counsel and an Anders2

brief. We affirm the Judgment of Sentence and grant counsel’s Application to

Withdraw.

        On February 16, 2018, the Appellant entered an open guilty plea to one

count each of Stalking and Terroristic Threats. On May 2, 2018, the court




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1   18 Pa.C.S. § 2709.1(a)(1), and 18 Pa.C.S. § 2706(a)(1), respectively.

2   Anders v. California, 386 U.S. 738 (1967).
____________________________________
* Former Justice specially assigned to the Superior Court.
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sentenced Appellant to two consecutive terms of two to five years’

incarceration. Appellant did not file a Post-Sentence Motion.

      On May 21, 2018, Appellant filed a timely pro se Notice for Appeal with

this Court.     After this Court sent Appellant’s trial counsel a Docketing

Statement to review and complete, trial counsel filed a Motion to Withdraw as

Counsel, explaining, inter alia, that the terms of his representation agreement

with Appellant terminated as of the sentencing date. This Court granted the

Motion to Withdraw, and ordered the trial court to appoint new counsel.

      On September 10, 2018, the trial court appointed new counsel

(“appellate counsel”) to represent Appellant. He subsequently filed an Anders

Brief and an Application for Leave to Withdraw as Counsel.        In response,

Appellant has filed numerous documents, raising additional claims and

requesting to withdraw his guilty plea and remove appellate counsel as his

representative.

      As a preliminary matter, we address appellate counsel’s Application to

Withdraw as Counsel. “When presented with an Anders Brief, this Court may

not review the merits of the underlying issues without first passing on the

request to withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa.

Super. 2010) (citation omitted). In order for counsel to withdraw from an

appeal pursuant to Anders, our Supreme Court has determined that counsel

must meet the following requirements:

      (1)     provide a summary of the procedural history and facts, with
              citations to the record;


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      (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.

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

      Appellate counsel has complied with the mandated procedure for

withdrawing as counsel. Additionally, appellate counsel confirms that he sent

Appellant a copy of the Anders Brief and petition to withdraw, as well as a

letter explaining to Appellant that he has the right to retain new counsel,

proceed pro se, or to raise any additional points. See Commonwealth v.

Millisock, 873 A.2d 748, 751 (Pa. Super. 2005) (describing notice

requirements).

      Because appellate counsel has satisfied the above requirements, it is

generally this Court’s duty to conduct an independent review of the record to

discern if there are any additional, non-frivolous issues overlooked by counsel

and render an independent judgment as to whether the appeal is, in fact,

wholly frivolous. Anders, 386 U.S. at 744. However, because Appellant filed

pro se responses to the Anders brief, our independent review is limited to

those issues raised in the Anders brief. Commonwealth v. Bennett, 124

A.3d 327, 333 (Pa. Super. 2015).       We then review the subsequent pro




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se responses and consider the merits of the issues contained therein and rule

upon them accordingly. Id. at 333-34.

      Counsel raised the following issue in the Anders Brief:

      Did the lower [c]ourt improperly fail to explain why it imposed a
      sentence above the aggravated range suggested by the
      Sentencing guidelines.

Anders Brief at 3.

      In his pro se responses, Appellant also challenges the discretionary

aspects of his sentence, in addition to asserting numerous claims of ineffective

assistance of counsel. See Appellant’s Pro Se Response, filed 2/3/19 at 5, 11,

13-15.

Discretionary Aspects of Sentencing

      Appellant challenges the discretionary aspects of his sentence,

contending that the trial court improperly imposed a sentence in excess of

that suggested by the sentencing guidelines without explaining the departure.

See Anders Brief at 8, 11-14.

      A challenge to the discretionary aspects of sentencing is not

automatically reviewable as a matter of right. Commonwealth v. Hunter,

768 A.2d 1136, 1144 (Pa. Super. 2001). Prior to reaching the merits of a

discretionary sentencing issue, we 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


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question that the sentence appealed from is not appropriate under the

Sentencing Code. Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.

2006).

     Appellant met the first element by filing a timely Notice of Appeal.

However, he fails to satisfy the second element, as the issue was not properly

preserved.     To preserve a challenge to the discretionary aspects of his

sentence, a defendant must raise the issue at sentencing or in a post-

sentence motion.     Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa.

Super. 2004); see Commonwealth v. Tejada, 107 A.3d 788, 798-99 (Pa.

Super. 2015) (noting that the trial court must be given the opportunity to

reconsider its sentence either at sentencing or in a post-sentence motion).

“Absent      such   efforts,   an   objection   to   a discretionary aspect   of

a sentence is waived.” McAfee, 849 A.2d at 275 (citation omitted). Here,

Appellant failed to raise his claim at the sentencing hearing or in a post-

sentence motion. Therefore, his challenge to the discretionary aspects of his

sentence is waived.

Ineffective Assistance of Counsel

     In his pro se responses to the Anders brief, Appellant raises various

ineffective assistance of trial counsel claims related to his guilty plea,

sentence, and counsel’s alleged failure to research and investigate. He also

claims that appellate counsel was ineffective because he failed to argue that

the sentencing transcript was altered, and avers that appellate counsel was


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working against him.3 See Resp. to Anders Br., filed 1/3/19; Resp. to Anders

Br., filed 1/4/19; Resp. to Anders Br., filed 1/18/19; Appellant’s Br., filed

2/14/19; Appellant’s Br., filed 2/25/19; Appellant’s Br., filed 3/5/19.   We

decline to address these challenges.

       Absent extraordinary circumstances, ineffective assistance of counsel

claims are to be deferred for review under the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546 review. Commonwealth v. Holmes, 79

A.3d 562, 576 (Pa. 2013); Commonwealth v. Devine, 26 A.3d 1139, 1143

(Pa. 2011). The Pennsylvania Supreme Court has limited those extraordinary

circumstances to: (1) where the claim of ineffectiveness is apparent from the

record and meritorious to the extent that immediate consideration best serves

the interests of justice; or (2) where there is good cause shown and the

defendant knowingly and expressly waives his entitlement to seek subsequent

PCRA review from his conviction and sentence. Holmes, 79 A.3d at 563-64.

       Here, Appellant’s claims do not fall under the limited circumstances in

which ineffective assistance of counsel claims may be reviewed on direct

appeal. Accordingly, we decline to review them at this juncture.




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3 We construe Appellant’s pro se filings liberally. Wilkins v. Marsico, 903
A.2d 1281, 1284-85 (Pa. Super. 2006). However, pro se status confers no
special benefit upon Appellant. Id. We will not act as counsel nor develop
arguments on behalf of Appellant. Coulter v. Ramsden, 94 A.3d 1080, 1088
(Pa. Super. 2014).


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       In sum, we find that Appellant has waived his challenge to the

discretionary aspect of his sentence and raised his ineffectiveness of counsel

claims prematurely. We, therefore, conclude that neither Appellant’s counsel

nor Appellant have identified any non-frivolous issues for us to address on

appeal.    We affirm Appellant’s Judgment of Sentence and grant appellate

counsel’s Application to Withdraw as Counsel.4

       Judgment of Sentence affirmed.            Appellate counsel’s Application for

Leave to Withdraw as Counsel granted.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/6/19




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4 Further, our independent review of the record does not reveal any non-
frivolous arguments available to Appellant. See Commonwealth v.
Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018).

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