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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE SUPERIOR COURT OF
PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA
Appe||ee

MICHAEL O. ROBERTS PALADINO

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Appellant No. 1468 WDA 2015

Appeal from the Judgment of Sentence July 29, 2015
In the Court of Common Pleas of Beaver County
Criminal Division at No(s): CP-O4-CR-OOOO437-2015

BEFORE: SHOGAN, J., O`|_|', J., and FITZGERALD, J.*
MEMORANDUM BY O`|_|', J.: FILED OCTOBER 24, 2016

Michael O. Roberts Paladino appeals from the judgment of sentence
imposed on July 29, 2015, in the Court of Common Pleas of Beaver County.1
This appeal returns to this Court following remand after Roberts Paladino's
counsel, Kevin A. Kindred, Esquire, filed an Anders2 brief without a petition

to withdraw and without proof that he had provided proper notice to Roberts

 

* Former Justice specially assigned to the Superior Court.

1 On November 4, 2015, this Court issued a per curiam order, directing
compliance with Pa.R.A.P. 3517 (filing of docketing statement). Thereafter,
on November 25, 2015, this Court dismissed this appeal for failure to file a
docketing statement. Counsel then sought reinstatement of the appeal,
which this Court granted on December 14, 2015.

2 see Anders v. california, 386 u.s. 738 (1967); commonwealth v.
Mcclendon, 434 A.2d 1185 (Pa. 1981).

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Paladino. We instructed counsel to file a Pa.R.A.P. 1925(b) statement or a
Pa.R.A.P. 1925(c)(4) statement of intent to file an Anders brief, and to file
either an advocate's brief or an Anders brief and a petition for leave to
withdraw. See Commonwealth v. Roberts Paladino, _ A.3d _ [1468
WDA 2015] (Pa. Super. June 9, 2016) (unpublished memorandum).
Presently, counsel, has filed a Rule 1925(c)(4) statement with the trial court,
and has filed an Anders brief and a petition for leave to withdraw from
representation in this Court.3 Based upon the following, we affirm the
judgment of sentence and grant the petition for leave to withdraw.

The charges against Roberts Paladino arose as a result of his computer
activity between December 24, 2014 and February 26, 2015. On April 15,
2015, Roberts Paladino entered an open guilty to charges of sexual abuse of
children - distribution of child pornography (3 counts), sexual abuse of
children - possession of child pornography (10 counts), and criminal use of

communication facility, all graded as felonies of the third degree.4 Following

 

3 We also instructed counsel to include a Pa.R.A.P. 2119(f) statement in the
brief because the sentencing issue discussed in the original Anders brief
implicated the discretionary aspects of the sentence. See Commonwealth
v. Roberts Paladino, _ A.3d _ [1468 WDA 2015] (Pa. Super. June 9,
2016) (unpublished memorandum). We note that while counsel filed a new
Anders brief, counsel did not include a Rule 2119(f) statement in the brief,
and continued to refer to the issue as “the legality of the sentence" under
the new heading “Discretionary Aspects of Sentence.” Anders brief at 10-
11.

4 18 Pa.c.s. §§ 6312(¢), 6312(<1), and 7512(a), respectively

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an assessment hearing, the trial court found Roberts Paladino to be a
Sexually Violent Predator (SVP). The trial court sentenced Roberts Paladino
to an aggregate term of 30 to 84 months' incarceration, and seven years'
probation. Specifically, the trial court sentenced Roberts Paladino to
concurrent terms of 30 to 84 months' imprisonment on Counts 1-3, and
concurrent terms of seven years' probation on Counts 4-14, to run
consecutive to the sentences imposed on Counts 1-3. On August 13, 2015,
Robert Paladino's counsel filed a post-sentence motion that challenged the
discretionary aspects of the sentence.5 The trial court denied the motion on
August 26, 2015, and this appeal followed.

When counsel files a petition to withdraw and an accompanying
Anders brief, we must examine the request to withdraw before addressing
any of the substantive issues raised on appeal. See Commonwealth v.

Bennett, 124 A.3d 327, 330 (Pa. Super. 2015). Therefore, we reiterate

 

5 Specifically, the post-sentence motion averred, in part:

The sentencing guidelines, which incorporated [Roberts
Paladino's] prior conviction, called for a standard sentencing
range of 6 months to 14 months on Counts 1-13 and 1 month to
12 months on Count14.

It is the position of [Roberts Paladino] that the Court's sentence
of 30 months to 84 months on Counts 1, 2, and 3 unlawfully
extended the minimum sentence beyond the standard and
[aggravated] range.

Roberts Paladino's Post-Sentence Motion, 8/13/2016, at 1]1]3-4.

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the principles set forth in our prior memorandum: Pursuant to Anders and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), the procedural
requirements counsel must satisfy in requesting to withdraw from

representation are, as follows:

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 brief to the defendant; and 3) advise the

defendant that he or she has the right to retain private counsel

or raise additional arguments that the defendant deems worthy

of the court's attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc) (citation omitted). Substantial compliance with these requirements is
sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa. Super.
2007).

Our review confirms counsel has technically complied with the
requirements for withdrawal outlined in Anders, supra, and its progeny.

Counsel has filed a petition for leave to withdraw and an Anders brief

pursuant to the dictates of Santiago, supra.6 We note the petition for

 

6 In Santiago, the Pennsylvania Supreme Court held:

[I]n 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
(Footnote Continuec/ Next Page)

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leave to withdraw contains no specific averments, but simply references the
Anders brief. In the Anders brief, counsel details his review of the record
and sets forth his conclusion that the appeal is frivolous.7 While counsel
does not specifically track the Anders language of “making a conscientious
examination of the record," his averment regarding his review substantially
complies with Anders. See Commonwealth v. Woods, 939 A.2d 896, 899
(Pa. Super. 2007) (finding Anders compliance where counsel indicated he
“made a thorough review of Appellant's case.”). Moreover, the petition for
leave to withdraw demonstrates that counsel has complied with the notice
requirements for withdrawal by serving Roberts Paladino with a copy of the
petition and Anders brief, and advising him by letter of his rights to retain

(Footnote Continuec/)

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).

7 Counsel states in the Anders brief that “[t]here are no issues of arguable
merit that could be raised on direct appeal presently before this Court.”
Anders Brief at 10. Further, regarding his review, counsel states:

Counsel has requested and reviewed the transcripts of [Roberts
Paladino's] guilty plea and sentencing. He has reviewed the
lower court file and the client case file which includes
correspondence from [Roberts Paladino]. Counsel has also met
personally with [Roberts Paladino] regarding the appeal.

Id.

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new counsel, proceed pro se, and raise any points in addition to those raised
in the Anders brief.8

Furthermore, on July 20, 2016, counsel complied with our directive to
file a Pa.R.A.P. 1925 statement, by filing in the trial court a Rule 1925(c)(4)
statement of intent to file an Anders brief. See Commonwealth v.
McBride, 957 A.2d 752, 758 (Pa. Super. 2008) (“[A]bsent the proper filing
of any [Rule 1925] statement of record by [Anders] counsel, this Court
cannot properly consider counsel's request to withdraw.”). Accordingly, we
will proceed to make an independent review of the record to determine
whether the appeal is wholly frivolous.

Here, the Anders brief addresses three issues: the jurisdiction of the
court, the discretionary aspects of the sentence, and the validity of the plea.

First, with regard to the jurisdiction of the court, counsel points out the
complaint and criminal information both recite the situs of the offense as
occurring in Beaver County, Pennsylvania. As such, counsel concludes there
is no basis upon which to find that the Beaver County Court of Common
Pleas lacked jurisdiction. See Commonwealth v. Bethea, 828 A.2d 1066,
1074 (Pa. 2003) (“[A]ll courts of common pleas have statewide subject
matter jurisdiction in cases arising under the Crimes Code.”). We agree with

counsel this issue is frivolous.

 

8 This Court has received no correspondence from Roberts Paladino.

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Next, the Anders brief discusses the discretionary aspects of Roberts
Paladino's sentence of three concurrent terms of 30 to 84 months'
imprisonment. In this regard, counsel asserts: “The issue of the legality
[sic] of the sentence imposed on [Roberts Paladino] is more problematic due
to the apparent deviation from the standard sentencing guidelines as to
counts one (1), two (2), and three (3). The court did not acknowledge on
the record any deviation from the standard sentencing range [of 6-14
months] or any reason for a deviation as to counts one (1), two (2), and
three (3) in their individual capacity." Anders Brief at 11. Counsel states:

In the aggregate, the court could have imposed a sentence as to

the first three counts of 42 to 252 months and been within the

standard sentencing range provided for those three counts. As

the aggregate sentence of 30 to 84 months as to counts one (1),

two (2), and three (3) is within the aggregate standard

sentencing range of 42 to 252 months, an argument that the

sentencing court arrived at a manifestly unreasonable decision is
without merit.
Id. at 12. As discussed below, we find this issue to be frivolous for reasons
other than the reasons set forth by counsel in the Anders brief.

A challenge to the discretionary aspects of a sentence is not absolute,
but rather “must be considered a petition for permission to appeal.”
Commonwealth v. Best, 120 A.3d 329, 348 (Pa. Super. 2015) (citations
omitted). To reach the merits of a discretionary issue, this Court must
determine:

(1) whether the appeal is timely; (2) whether Appellant

preserved [the] issue; (3) whether Appellant's brief includes a
concise statement of the reasons relied upon for allowance of

_7_

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appeal with respect to the discretionary aspects of sentence[g];
and (4) whether the concise statement raises a substantial
question that the sentence is appropriate under the sentencing
code.

Commonwealth v. Edwards, 71 A.3d 323, 329-330 (Pa. Super. 2013)
(citation omitted).

Here, the notice of appeal was filed on September 18, 2015,
purporting to appeal from the August 26, 2015 order, denying Roberts
Paladino's post-sentence motion. We stated in our prior memorandum that
the appeal properly lies from the judgment of sentence imposed on July 29,
2015. See Roberts Paladino, supra (unpublished memorandum, at 1
n.1). In addition, we noted the post-sentence motion was untimely filed on
August 13, 2015, more than 10 days after the July 29, 2015, sentence. See
id. at 3. We found a breakdown in the court's operation occurred because
the trial court's August 26, 2015, order “‘did not notify [a]ppellant that, due
to the late filing of his post-sentence motion, he had to file an appeal within

III

thirty days of the imposition of sentence. Roberts Paladino, supra
(unpublished memorandum, at 5), citing Commonwealth v. Patterson,
940 A.2d 493, 499 (Pa. Super. 2007). Therefore, we declined to quash this

appeal as untimely. See Roberts Paladino, id. Accordingly, we find the

first requirement for review has been met.

 

9 As noted earlier in this memorandum, Attorney Kindred failed to follow the
Court's directive to file the requisite Rule 2119(f) statement.

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Regarding the requirement of issue preservation, however, since the
post-sentence motion was untimely, Roberts Paladino failed to preserve a
challenge to the discretionary aspects of sentencing. See Pa.R.Crim.P.
720(A)(1) (providing that a written post-sentence motion “shall be filed no
later than ten days after the imposition of sentence”). Even in the context
of Anders, an appellant waives his challenge to the discretionary aspects of
sentencing when he fails to preserve the issue in a timely post-sentence
motion. Commonwealth v. Cartrette, supra, 83 A.3d at 1042 (“Absent [a
timely post-sentence motion or claim raised during sentencing], an objection
to a discretionary aspect of a sentence is waived.”). Consequently, this
sentencing issue is frivolous as it is not reviewable on direct appeal. See
Commonwealth v. Kalichak, 943 A.2d 285, 291 (Pa. Super. 2008)
(holding that when an issue has been waived, “pursuing th[e] matter on
direct appeal is frivolous").

With regard to the validity of the plea, counsel asserts that “[o]n its
face, there does not appear to be anything about the plea which would cause
it to be invalid.” Anders Brief at 12. We conclude this issue is frivolous, but
again our reasoning differs from Anders counsel. “In order to preserve an
issue related to the guilty plea, an appellant must either ‘object[] at the
sentence colloquy or otherwise raise the issue at the sentencing hearing or
through a post-sentence motion.'” Commonwealth v. Tareila, 895 A.2d

1266, 1270 n.3 (Pa. Super. 2006) (citation omitted). Here, as no challenge

_9_

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to the guilty plea was presented to the trial court, this issue is waived and,
therefore, is frivolous.

Lastly, while Roberts Paladino identified to counsel an issue regarding
counsel's advice to proceed to sentencing without testifying or offering
witnesses, see Anders Brief at 13-14, we agree with counsel's assessment
that such issue would not be an issue for direct appeal. See
Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013) (claims of
ineffectiveness of counsel are generally not ripe until collateral review.). In
this regard, since Roberts Paladino may yet elect to file a petition under the
Post Conviction Hearing Act (PCRA), 42 Pa.C.S. §§ 9541-9546, we have not
addressed the merits of the claims that are frivolous due to waiver.

In conclusion, the issues identified by counsel are waived and/or
frivolous, and our independent review of the record reveals no non-frivolous
claims that might arguably support this direct appeal.

Accordingly, we affirm the judgment of sentence and grant counsel's
petition to withdraw.

Judgment of sentence affirmed. Petition for leave to withdraw

granted.

_10_

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Judgment Entered.

 

J seph D. Seletyn, Es .
Prothonotary

Date: 10/24/2016

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