J-S63038-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    HENRY CLAY CRAWFORD                        :
                                               :
                       Appellant               :   No. 639 WDA 2018

         Appeal from the Judgment of Sentence Entered March 7, 2016
      In the Court of Common Pleas of Fayette County Criminal Division at
                        No(s): CP-26-CR-0000305-2013


BEFORE:      OTT, J., MURRAY, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                      FILED NOVEMBER 20, 2018

        Appellant, Henry Clay Crawford, appeals nunc pro tunc from the

judgment of sentence entered in the Court of Common Pleas of Fayette

County. Appellant asserts evidence was insufficient to support his convictions

of Murder in the Third-Degree and Burglary1 respectively.             Additionally,

Appellant’s court-appointed counsel, James V. Natale, Esq., seeks permission

to withdraw as counsel pursuant to Anders v California, 336 U.S. 738 (1967)

and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We affirm and

grant Attorney Natale leave to withdraw.

         On March 2, 2016, Appellant entered a guilty plea to charges of third-

degree murder and burglary filed in connection with his fatal stabbing of victim

Lisa Tupta. On March 7, 2016, the trial court sentenced Appellant to 25 to 50

____________________________________________


1   18 Pa.C.S.A. §§ 2502 and 2709(a)(1), respectively.
____________________________________
* Former Justice specially assigned to the Superior Court.
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years’ incarceration pursuant to the parties’ plea bargain. Appellant did not

file a direct appeal from his judgment of sentence.

       On October 12, 2016, Appellant filed his first petition under the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. The PCRA court

appointed counsel, who sought reinstatement of Appellant’s direct appeal

rights.   On November 21, 2017, the PCRA court granted permission to

Appellant to file a direct appeal nunc pro tunc. Appellant thereafter filed a

counseled direct appeal to this Court, but on February 2, 2018, we dismissed

the appeal for counsel’s failure to complete and return a docketing statement

form to the Prothonotary, pursuant to Pa.R.A.P. 3517.

       On April 20, 2018, Appellant filed a timely PCRA petition2 seeking

another nunc pro tunc reinstatement of his direct appeal rights. The PCRA

granted the requested relief, appointed Attorney Natale as new counsel, and

directed him to file a direct appeal on Appellant’s behalf. Counsel filed a direct

appeal nunc pro tunc on May 1, 2018, with this Court.          On July 1, 2018,


____________________________________________


2 We note that “when a PCRA petitioner's direct appeal rights are reinstated
nunc pro tunc in his first PCRA petition, a subsequent PCRA petition will be
considered a first PCRA petition for timeliness purposes.” Commonwealth
v. Turner, 73 A.3d 1283, 1286 (Pa. Super. 2013). Here, Appellant’s
judgment of sentence had become final on or about March 6, 2018, when he
allowed the 30-day period in which to file a petition for allowance of appeal
with the Supreme Court to lapse. Appellant, therefore, had until March 6,
2019, to file his PCRA Petition. See 42 Pa.C.S.A. § 9545(b) (providing PCRA
Petition must be filed within one year of date judgment becomes final).
Because Appellant filed his PCRA Petition on April 20, 2018, his petition was
timely.


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however, counsel filed a petition to withdraw, attached to which was a July

30, 2018, notice of rights letter that he had sent to Appellant.

      Before reaching the merits of the appeal, we must first address the

propriety of counsel's petition to withdraw and Anders brief. We previously

determined:

      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 the
      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.

      Our Supreme Court has clarified portions of the Anders
      procedure:

            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


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            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.

Commonwealth v. Cook, 175 A.3d 345, 348 (Pa. Super. 2017) (some

citations omitted).

      Our review confirms counsel has complied with all of the foregoing

requirements pursuant to Anders and Santiago and Appellant has not filed

a response.   Thus, we proceed to review the issues set forth in counsel’s

Anders brief before conducting an independent review of the proceedings

pursuant to Anders to discern if there are non-frivolous issues overlooked by

counsel. Commonwealth v. Dempster, 187 A.3d 266 (Pa.Super. 2018) (en

banc).

      On appeal, counsel for Appellant presents the following issues:

      I.    [WAS THERE] SUFFICIENT EVIDENCE PRESENTED BY
            THE COMMONWEALTH TO SUPPORT CHARGES OF
            THIRD DEGREE MURDER AND BURGLARY AGAINST
            [APPELLANT]?

      II.   [WAS APPELLANT’S GUILTY PLEA] KNOWING,
            VOLUNTARY, AND INTELLIGENT WHEN [APPELLANT]
            CLAIMS THAT HIS COUNSEL FAILED TO CONSULT HIM
            REGARDING HIS CASE TO DEVELOP A STRATEGY FOR
            THE DEFENSE?

Anders Brief at 3.

      The Anders brief first identifies Appellant’s assertion that insufficient

evidence supported the charges of third-degree murder and burglary. Our



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decisions hold, however, 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) (citation omitted). It follows that

pleading guilty waives a future challenge to the sufficiency of the evidence.

See Commonwealth v. Robinson, 970 A.2d 455 (Pa.Super.2009) (en banc)

(challenge to sufficiency of evidence waived by pleading guilty). Appellant,

therefore, waived his sufficiency of the evidence claim when he pleaded guilty

to third-degree murder and burglary.

      Regarding Appellant’s ineffective assistance of counsel claim inducing

him to enter an unknowing, unintelligent, and involuntary guilty plea, this

claim must be deferred to collateral review pursuant to the dictates of our

Supreme Court’s decision in Commonwealth v. Grant, 813 A.2d 726 (Pa.

2002) (holding ineffective assistance of counsel claims cannot be entertained

on appeal). See Commonwealth v. Barnett, 25 A.3d 371, 377 (Pa.Super.

2011) (en banc) (pursuant to Grant's refinement in Commonwealth v.

Liston, 977 A.2d 1089 (Pa. 2009), and Commonwealth v. Wright, 961 A.2d

119, 148 n.22 (Pa. 2008), Pennsylvania Superior Court not permitted to

review ineffective assistance of counsel claims on direct appeal, unless

defendant has expressly, knowingly, and voluntarily waived any further PCRA

review).   See also Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013)

(holding trial court retained discretion to entertain ineffectiveness claims on

post-verdict motions and direct appeal where: (1) the claim of ineffectiveness

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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).

      Here, because the present case involves neither exception to the general

rule of deferral expressed in Grant and its progeny, we must defer resolution

of his ineffective assistance of counsel claim to collateral review.

     Counsel’s petition to withdraw granted. Judgment of Sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/20/2018




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