J-S19042-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

  COMMONWEALTH OF                        : IN THE SUPERIOR COURT
  PENNSYLVANIA,                          : OF PENNSYLVANIA
                                         :
                         Appellee        :
                                         :
                    v.                   :
                                         :
  MICHAEL ROJAS,                         :
                                         :
                         Appellant       : No. 286 EDA 2018


        Appeal from the Judgment of Sentence September 18, 2015
           in the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0013142-2013
                                       CP-51-CR-0013145-2013

BEFORE:    LAZARUS, J., KUNSELMAN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                       FILED JUNE 25, 2019

       Michael Rojas (Appellant) appeals nunc pro tunc from his judgment of

sentence imposed on September 18, 2015, after pleading guilty to numerous

charges related to shooting three people in Philadelphia.        In addition,

Appellant’s counsel has filed a petition to withdraw and a brief 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 counsel’s petition to withdraw.

       The trial court summarized the facts of this case as follows.

            On September 1, 2013, Appellant was at a family gathering
      on the 700 block of Russell Street in Philadelphia, when he and
      one of the guests got into an argument. Appellant pulled out a
      handgun and began shooting into the air. Maurine Cancel,
      Appellant’s cousin, approached [] Appellant and asked, “What are

* Retired Senior Judge assigned to the Superior Court.
J-S19042-19


       you doing? My kids are around and there are kids in this
       neighborhood and why are you shooting the gun in the air?”
       Appellant briefly stopped firing the gun but started shooting again
       a few minutes later. As Appellant was shooting, he struck Victor
       Lopez, Ms. Cancel’s husband, four times in the chest and
       abdomen. Odalys Melendez, the second victim and Appellant’s
       girlfriend at the time, was shot in the left arm. The third victim,
       Appellant’s uncle, Gilberto Hernandez, was shot in his left hand.

              Appellant was not arrested until September 11, 2013. At
       the time of his arrest, Appellant was in possession of a firearm. A
       cross-check was done on the fired cartridge casings recovered
       from the 700 block of Russell Street. It was later determined that
       the firearm in Appellant’s possession at the time of his arrest was
       the same firearm that was discharged at the 700 block of Russell
       Street shooting on September 1, 2013.

Trial Court Opinion, 6/19/2018, at 2 (citations to notes of testimony omitted).

         Appellant was charged at three separate docket numbers with

numerous charges related to the aforementioned incident. On July 14, 2015,

Appellant entered into an open guilty plea to certain charges at all three docket

numbers.1 On September 18, 2015, Appellant was sentenced to an aggregate

term of 20 to 40 years of incarceration to be followed by 15 years of probation.

         On October 5, 2015, Appellant pro se filed a motion to withdraw his

guilty plea, and on October 29, 2015, Appellant filed a motion for appointment

of counsel. No action was taken on Appellant’s motion for appointment of

counsel, and on March 9, 2016, the clerk of courts entered an order denying

by operation of law Appellant’s motion to withdraw his guilty plea.

____________________________________________
1  Appellant pleaded guilty to possessing a firearm with the manufacturer’s
number altered (CP-51-CR-0013142-2013), aggravated assault with respect
to Hernandez (CP-51-CR-0013144-2013), and carrying a firearm without a
license and attempted murder with respect to Lopez (CP-51-CR-0013145-
2013).

                                           -2-
J-S19042-19



         On August 26, 2016, Appellant pro se filed a timely petition pursuant

to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Counsel

was appointed, and on March 12, 2017, counsel filed an amended petition

requesting the reinstatement of Appellant’s right to file post-sentence motions

and direct appeal nunc pro tunc.               On January 19, 2018, the PCRA court

granted in part and denied in part Appellant’s PCRA petition. Specifically, the

PCRA court permitted Appellant to file a direct appeal nunc pro tunc, but

denied Appellant the right to file a post-sentence motion.2

         Appellant timely filed a notice of appeal.3         The trial court ordered

Appellant to file a concise statement of errors complained of on appeal, and

counsel for Appellant filed a statement of intent to file an Anders brief. See

Pa.R.A.P. 1925(c)(4). The trial court filed a responsive opinion.

         On appeal, Appellant’s counsel filed both an Anders brief and a

petition to withdraw as counsel. Accordingly, the following principles guide

our review of this matter.

              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
____________________________________________
2This order is not included in the certified record; however, the text appears
on the docket sheet.

3This appeal was filed prior to the Supreme Court’s June 1, 2018 decision in
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018) (holding that this Court
must quash an appeal where a single order disposes of multiple cases and an
appellant has filed only one notice of appeal instead of separate notices of
appeal for each case).

                                           -3-
J-S19042-19


     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 clarified portions of the Anders

procedure:

     [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 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 complied substantially with the




                                     -4-
J-S19042-19


technical requirements set forth above.4         Therefore, we now have the

responsibility “to conduct a simple review of the record to ascertain if there

appear on its face to be arguably meritorious issues that counsel, intentionally

or not, missed or misstated.” Commonwealth v. Dempster, 187 A.3d 266,

272 (Pa. Super. 2018) (en banc).

       On appeal, counsel presents two questions which arguably support

Appellant’s appeal: 1) whether “the sentence imposed upon [Appellant] by the

[trial] court [was] manifestly excessive,” and 2) whether Appellant should “be

permitted to withdraw his guilty plea.” Anders Brief at 6.

       Appellant’s first claim involves a challenge to the discretionary aspects

of his sentence, and we bear in mind the following.

       An appellant is not entitled to the review of challenges to the
       discretionary aspects of a sentence as of right. Rather, an
       appellant challenging the discretionary aspects of his sentence
       must invoke this Court’s jurisdiction. We determine whether the
       appellant has invoked our jurisdiction by considering the following
       four factors:

              (1) whether appellant has filed a timely notice of
              appeal, see Pa.R.A.P. 902 and 903; (2) whether the
              issue was properly preserved at sentencing or in a
              motion to reconsider and modify sentence, see
              Pa.R.Crim.P. 720; (3) whether appellant’s brief has a
              fatal defect, Pa.R.A.P. 2119(f); and (4) whether there
              is a substantial question that the sentence appealed
              from is not appropriate under the Sentencing Code,
              42 Pa.C.S.[] § 9781(b).


____________________________________________
4Appellant has not filed a response to counsel’s petition. In addition, despite
being granted an extension of time to do so, the Commonwealth has not filed
a brief on appeal.

                                           -5-
J-S19042-19


Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)

(some citations omitted).

       Here, Appellant timely a filed notice of appeal. However, our review of

the record reveals that Appellant did not properly preserve this issue at

sentencing or by filing a post-sentence motion.5 Accordingly, Appellant has

not preserved this issue for our review. See Commonwealth v. Rhoades, 8

A.3d 912, 915 (Pa. Super. 2010) (stating that an appellant waives for appeal

issues challenging the discretionary aspects of his sentence where he does not

raise them at sentencing or in a post-sentence motion).

       Based upon the foregoing, we agree with counsel that a challenge to the

discretionary     aspects      of   Appellant’s   sentence   is   frivolous.   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”). Thus, Appellant is not entitled to relief.

       We now turn to Appellant’s second issue regarding the validity of his

guilty plea. As with a challenge to the discretionary aspects of his sentence,

Appellant was required to file a motion to withdraw his guilty plea within ten

days after his judgment of sentence was imposed. See Commonwealth v.

Lincoln, 72 A.3d 606, 609-10 (Pa. Super. 2013) (“A defendant wishing to



____________________________________________
5 In his amended PCRA petition, counsel specifically requested that the PCRA
court permit him to file a post-sentence motion, but the PCRA court denied
that request.


                                           -6-
J-S19042-19


challenge the voluntariness of a guilty plea on direct appeal must either object

during the plea colloquy or file a motion to withdraw the plea within ten days

of sentencing.”).

       Because Appellant’s judgment of sentence was imposed on September

18, 2015, he had until September 28, 2015, to file timely a post-sentence

motion. Here, Appellant filed pro se a motion to withdraw his guilty plea on

October 5, 2018,6 which was one week late.7 Because Appellant did not timely

file a post-sentence motion challenging the validity of his guilty plea, he has

____________________________________________
6 Appellant dated his pro se motion September 30, 2015. Thus, even if we
were to conclude that this date was sufficient to establish the date Appellant
delivered this motion to prison authorities under the prisoner-mailbox rule,
Appellant’s motion was still two days late. See Commonwealth v. Jones,
700 A.2d 423 (Pa. 1997) (holding that a document is deemed to be filed on
the date an incarcerated prisoner deposits the document with prison
authorities or places it in the prison mailbox).

7 At the time Appellant filed this post-sentence motion, he appears to have
still been represented by counsel.        To the extent Appellant was still
represented by counsel at this juncture, this late-filed motion was a nullity.
See Commonwealth v. Nischan, 928 A.2d 349, 355 (pointing out that a
defendant has “no right to file a pro se motion” where “he [or she] was
represented by counsel” and any pro se post-sentence motion that was filed
was a “nullity”). Accordingly, the clerk of courts should have forwarded this
motion to counsel pursuant to Pa.R.Crim.P. 576(A)(4) (“In any case in which
a defendant is represented by an attorney, if the defendant submits for filing
a written motion, notice, or document that has not been signed by the
defendant’s attorney, the clerk of courts shall accept it for filing, time stamp
it with the date of receipt and make a docket entry reflecting the date of
receipt, and place the document in the criminal case file. A copy of the time
stamped document shall be forwarded to the defendant’s attorney and the
attorney for the Commonwealth within 10 days of receipt.”). It is not clear
whether the clerk of courts complied with this mandate. In any event, at that
juncture, even if the clerk of courts did comply, the procedure for
reinstatement of Appellant’s right to file a post-sentence motion was to file
timely a PCRA petition. Appellant did that on August 26, 2016.

                                           -7-
J-S19042-19


waived this issue for our review, and we agree with counsel that it is frivolous.

Commonwealth v. Kinney, 157 A.3d 968 (Pa. Super. 2017) (holding

challenges to plea agreement are waived on appeal where Kinney failed to file

a post-sentence motion); Kalichak, supra.

      Moreover, we have conducted “a simple review of the record” and have

found no “arguably meritorious issues that counsel, intentionally or not,

missed or misstated.” Dempster, 187 A.3d at 272. Accordingly, we affirm

the judgment of sentence and grant counsel’s petition to withdraw.

      Judgment of sentence affirmed. Petition to withdraw granted.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/25/19




                                      -8-
