J-S79041-14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
                    Appellee               :
                                           :
                    v.                     :
                                           :
WARREN W. RAY, JR.,                        :
                                           :
                     Appellant             :      No. 2076 EDA 2014

       Appeal from the Judgment of Sentence Entered June 16, 2014
            in the Court of Common Pleas of Delaware County,
           Criminal Division, at No(s): CP-23-CR-0002833-2014

BEFORE:    ALLEN, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:            FILED FEBRUARY 05, 2015

     Warren W. Ray, Jr. (Appellant), appeals from the judgment of

sentence which followed his conviction for possession with the intent to

deliver a controlled substance - heroin.       Also before us is the petition of

Appellant’s counsel to withdraw pursuant to Anders v. California, 386 U.S.

738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).

We affirm the judgment of sentence and grant the petition to withdraw.

     The background underlying this matter can be summarized as follows.

Appellant was arrested and charged with, inter alia, possession with the

intent to deliver heroin.   He entered into a negotiated guilty plea to this

charge; that negotiated plea included an agreement that Appellant would be

sentenced to one to two years in prison. The trial court accepted the plea

and sentenced Appellant accordingly.


*Retired Senior Judge assigned to the Superior Court.
J-S79041-14


      Appellant timely filed a notice of appeal, and the trial court directed

him to comply with Pa.R.A.P. 1925(b). Appellant’s counsel filed a statement

pursuant to Pa.R.A.P. 1925(c)(4), stating that counsel intended to withdraw

his representation of Appellant.

      Counsel then filed with this Court a petition to withdraw and an

Anders brief.   Thus, before we consider the substance of this appeal, we

must address counsel’s compliance with Anders:

      Direct appeal counsel seeking to withdraw under Anders must
      file a petition averring that, after a conscientious examination of
      the record, counsel finds the appeal to be wholly frivolous.
      Counsel must also file an Anders brief setting forth issues that
      might arguably support the appeal along with any other issues
      necessary for the effective appellate presentation thereof….

             Anders counsel must also provide a copy of the Anders
      petition and brief to the appellant, advising the appellant of the
      right to retain new counsel, proceed pro se or raise any
      additional points worthy of this Court’s attention.

             If counsel does not fulfill the aforesaid technical
      requirements of Anders, this Court will deny the petition to
      withdraw and remand the case with appropriate instructions
      (e.g., directing counsel either to comply with Anders or file an
      advocate’s brief on Appellant's behalf). By contrast, if counsel’s
      petition and brief satisfy Anders, we will then undertake our
      own review of the appeal to determine if it is wholly frivolous. If
      the appeal is frivolous, we will grant the withdrawal petition and
      affirm the judgment of sentence. However, if there are non-
      frivolous issues, we will deny the petition and remand for the
      filing of an advocate’s brief.

Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)

(citations omitted).   Our Supreme Court has expounded further upon the

requirements of Anders:


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      in the Anders brief that accompanies court-appointed counsel’s
      petition to withdraw, counsel 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, 978 A.2d at 361.

      Based upon our examination of counsel’s petition to withdraw and

Anders brief, we conclude that counsel has substantially complied with the

above requirements.1        “We, therefore, turn to the issue presented in

counsel’s Anders brief to make an independent judgment as to whether the

appeal is, in fact, wholly frivolous.”       Commonwealth v. Martuscelli, 54

A.3d 940, 947 (Pa. Super. 2012).

      Counsel essentially contends that a challenge to the discretionary

aspects of Appellant’s sentence is the only issue that arguably supports this

appeal. However, Appellant was sentenced pursuant to a negotiated plea

agreement. This Court has long recognized that the entry of a negotiated

guilty plea “constitutes a waiver of all nonjurisdictional defects and defenses.

When a defendant pleads guilty, he waives the right to challenge anything

but   the   legality   of   his   sentence    and   the   validity   of   his   plea.”

Commonwealth v. Jones, 929 A.2d 205, 212 (Pa. 2007). Further, “[o]ne

1
 Appellant has not filed a pro se response raising any additional points for
our consideration.


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who pleads guilty and receives a negotiated sentence may not then seek

discretionary review of that sentence.” Commonwealth v. O'Malley, 957

A.2d 1265, 1267 (Pa. Super. 2008).             Thus, any challenge to the

discretionary aspects of Appellant’s sentence is wholly frivolous.

      Because we agree with counsel that Appellant’s appeal is wholly

frivolous, we grant counsel’s petition to withdraw and affirm Appellant’s

judgment of sentence.

      Judgment of sentence affirmed.        Petition to withdraw as counsel

granted.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 2/5/2015




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