J-S50013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA


                     v.

TRACY R. MARTIN

                          Appellant                       No. 3864 EDA 2016


           Appeal from the Judgment of Sentence November 17, 2016
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0006054-2016


BEFORE: PANELLA, J., MOULTON, J., and RANSOM, J.

MEMORANDUM BY PANELLA, J.                               FILED OCTOBER 12, 2017

      Appellant, Tracy Martin, pled guilty to one count of failing to stop after

an accident causing damage to an attended vehicle, 75 Pa.C.S.A. § 3743.

The trial court proceeded to impose the negotiated sentence of time served

– approximately 3 months – to 12 months’ imprisonment. In this appeal,

Martin’s    court-appointed   counsel,   Patrick   J.    Connors,   Esquire,   seeks

permission to withdraw as counsel. As such, he has filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009). After careful review, we affirm the

judgment of sentence and grant Attorney Connors permission to withdraw.

      Attorney Connors has complied with the mandated procedure for

withdrawing as counsel. See Santiago, 978 A.2d at 361 (articulating

Anders requirements); Commonwealth v. Daniels, 999 A.2d 590, 594
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(Pa. Super. 2010) (providing that counsel must inform client by letter of

rights to proceed once counsel moves to withdraw and append a copy of the

letter to the petition). Martin has not filed a response to counsel’s petition to

withdraw.1

       Counsel has identified one issue that Martin believes entitles him to

relief. Martin wishes to challenge the sentence imposed by the trial court.

We begin by observing that the maximum sentence imposed was not above

the statutory maximum. See 75 Pa.C.S.A. § 3743(b) (“Any person violating

this section commits a misdemeanor of the third degree, punishable by …

imprisonment for not more than one year ….”) Nor is there any indication

the court imposed a mandatory minimum sentence. Martin has not identified

any other possible issue with the legality of his sentence.

       We therefore turn to the discretionary aspects of his sentence. As

Martin negotiated this sentence as part of his guilty plea agreement, he is

precluded from challenging the discretionary aspects of his sentence. See

Commonwealth v. O’Malley, 957 A.2d 1265, 1267 (Pa. Super. 2008).

Thus, we agree with Attorney Connor’s assessment that any challenge to

Martin’s sentence is frivolous.

____________________________________________


1 Martin did file a response when Attorney Connors filed his notice of intent
to file an Anders brief in lieu of a statement of matters complained of on
appeal. In that response, Martin identified two issues he wished to raise on
appeal: the legality of the sentence imposed and ineffective assistance of
counsel. We address both issues in this memorandum.



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      Next, we address the issue raised by Martin in his pro se response to

Attorney Connors’s notice of intent to file an Anders brief. Martin argues

that both Attorney Connors and another member of the Delaware County

Public Defender’s Office rendered ineffective assistance of counsel.

      Generally, claims of ineffectiveness of counsel are not ripe until

collateral review. See Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa.

2013). However, in extraordinary cases where the trial court determines that

the claim of ineffectiveness is “both meritorious and apparent from the

record,” it may exercise its discretion to consider the claim in a post-

sentence motion. Id., at 577.

      In Holmes, the Supreme Court of Pennsylvania explicitly identified

ineffectiveness claims as “presumptively reserved for collateral attack[.]”

Id., at 577 n.10. The Court warned against trial courts appointing “new

counsel post-verdict to search for ineffectiveness claims.” Id. Thus, while

the trial court retains discretion in addressing such claims, the presumption

weighs heavily in favor of deferring such claims to collateral review.

      Further, the Court justified the creation of the “meritorious and

apparent from the record” exception by explaining that “[t]he administration

of criminal justice is better served by allowing trial judges to retain the

discretion to consider and vindicate such distinct claims of ineffectiveness[.]”

Id., at 577 (emphasis added). Most importantly, the Court required an




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express waiver of the right to file a first, timely PCRA petition. See id., at

579.

       Martin failed to expressly forgo his right to file a timely, first PCRA

petition. Furthermore, this issue was never presented to the trial court in

any filing. It is not even clear, from Martin’s handwritten filing, what he

believes was ineffective about the Public Defender’s office’s representation.

For all these reasons, we conclude that Martin’s claim that counsel was

ineffective would be frivolous in this direct appeal.

       As a result, we agree with Attorney Connors’s assessment that this

appeal is wholly frivolous. We therefore grant his petition to withdraw, and

affirm the judgment of sentence.

       Judgment of sentence affirmed. Permission to withdraw as counsel

granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/12/2017




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