J-S08024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

CHARLES JORDAN,

                            Appellant                No. 990 WDA 2017


        Appeal from the Judgment of Sentence entered April 13, 2017,
                 in the Court of Common Pleas of Erie County,
            Criminal Division, at No(s): CP-25-CR-0003263-2016.


BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E,*

MEMORANDUM BY KUNSELMAN, J.:                       FILED MARCH 27, 2018

       Charles Jordan appeals from the judgment of sentence imposed after

he pled guilty to possession with intent to deliver (cocaine), a firearm

violation, and receiving stolen property.1     Jordan’s counsel has filed a

petition to withdraw, in which she alleges that this direct appeal is wholly

frivolous.   Agreeing with counsel’s assessment, we grant her petition to

withdraw and affirm Jordan’s judgment of sentence.

       The Commonwealth originally charged Jordan with multiple drug,

firearm, and receiving stolen property charges following the execution of a



____________________________________________


135 P.S. § 780-113(a)(30), and 18 Pa.C.S.A. §§ 6105(a)(1), and 3925(a),
respectively.




*Former Justice specially assigned to the Superior Court.
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search warrant at his residence. Prior to trial, he filed a motion to suppress,

which the trial court denied after an evidentiary hearing.

       On February 27, 2017, Jordan entered a guilty plea to one count of

each charge as part of a negotiated guilty plea, in which the Commonwealth

agreed to withdraw the remaining charges. There was no agreement as to

the sentence to be imposed, although Jordan acknowledged he was facing

and aggregate maximum term of thirty years of imprisonment.

       On April 13, 2017, the trial court imposed an aggregate sentence of

eight to sixteen years of imprisonment. Jordan filed a timely post-sentence

motion in which he raised challenges to his sentence. The trial court denied

Jordan’s post-sentence motion on May 5, 2017. Jordan filed a pro se notice

of appeal, and the trial court appointed counsel following this Court’s remand

for a Grazier hearing.2          Thereafter, Jordan’s counsel filed a Pa.R.A.P.

1925(b) statement in which she stated her intention to file an Anders3 brief

with this Court.

       “When presented with an Anders brief, this Court may not review the

merits of the underlying issues without first passing on the request to

withdraw.”     Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.

2010).    In Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), the

____________________________________________


2Commonwealth         v. Grazier, 713 A.2d 81 (Pa. 1998).

3Anders    v. California, 368 U.S. 738 (1967).




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Pennsylvania Supreme Court explained what is required to be contained

within an Anders brief:

         [T]he Anders brief that accompanies court-appointed
         counsel’s petition to withdraw . . . 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.

      “While    the   Supreme   Court   in   Santiago,   set   forth   the   new

requirements for an Anders brief, which are quoted above, the holding did

not abrogate the notice requirements set forth in [Commonwealth v.

Millisock, 873 A.2d 748, 751 (Pa. Super. 2005)] that remain binding

precedent.     Daniels, 999 A.2d at 594. Thus, counsel seeking to withdraw

on direct appeal must meet the following obligations to his or her client:

         Counsel also must provide a copy of the Anders brief to
         his client. Attending the brief must be a letter that advises
         the client of his right to: (1) retain new counsel to pursue
         the appeal; (2) proceed pro se on appeal; or (3) raise any
         points that the appellant deems worthy of the court[’]s
         attention in addition to the points raised by counsel in the
         Anders brief.

Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (citation

omitted). Jordan has not filed a response.




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      Our review reveals that Jordan’s counsel substantially complied with

the requirements of Anders and Santiago. “Once counsel has satisfied the

above requirements, it is then this Court’s duty to conduct its own review of

the trial court’s proceedings and render an independent judgment as to

whether the appeal is, in fact, wholly frivolous.”       Commonwealth v.

Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc) (citation

omitted). Stated differently, this Court must conduct an independent review

of the record to discern if there are any additional, non-frivolous issues

overlooked by counsel. Commonwealth v. Flowers, 113 A.3d 1246, 1250

(Pa. Super. 2015).

      Counsel identified the following claims that Jordan indicated he wished

to raise on appeal:

         1. Did [Jordan] enter a knowing, voluntary and intelligent
            plea?

         2. Did the trial court commit an abuse of discretion when it
            imposed consecutive sentences for possession with
            intent to deliver and persons not to possess firearms?

         3. Did the trial court impose an illegal sentence?

         4. Did the trial court err in denying [Jordan’s] motion to
            suppress?

Jordan’s Brief at 8.

      Jordan first asserts that his entry of the negotiated plea was not

knowing, voluntary and intelligent.    As noted by counsel, Jordan failed to

challenge the validity of his plea before the trial court in open court or in a

post-sentence motion. See Pa.R.Crim.P. 720(B). Accordingly this issue is

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waived for purposes of appellate review.       Commonwealth v. Lincoln, 72

A.3d 606, 610 (Pa. Super. 2013). Absent waiver, we would find any such

challenge refuted by our review of Jordan’s written and oral plea colloquies.

Thus, we agree that this issue is meritless.

      In his second issue, Jordan claims that the trial court abused its

discretion when it imposed consecutive sentences for possession with intent

to deliver and the firearms violation. This claim challenges the discretionary

aspects of sentence.      There is no absolute right to an appeal when

challenging the discretionary aspects of a sentence. Appellant must satisfy a

four-part test to invoke this Court’s jurisdiction.   See Commonwealth v.

Griffin, 65 A.3d 932, 935 (Pa. Super. 2013). An appeal is permitted only

after this Court determines that there is a substantial question that the

sentence was not appropriate under the Sentencing Code. Commonwealth

v. Tobin, 89 A.3d 663, 666 (Pa. Super. 2014) (citations omitted). Further,

in order to properly preserve such a claim for appellate review, the

defendant must present the issue in either a post-sentence motion or raise

the claim during the sentencing proceedings, and preserve the issue in a

Pa.R.A.P. 2119(f) statement. Id.

      “Sentencing is a matter vested in the sound discretion of the

sentencing court, and a sentence will not be disturbed on appeal absent a

manifest abuse of discretion, which in this context, is not shown merely to

be an error in judgment; rather the appellant must establish by reference to

the record, that the sentencing court ignored or misapplied the law,

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exercised its judgment for reasons of partiality, prejudice, bias or ill will, or

arrived at a manifestly unreasonable decision.” Commonwealth v. Shull,

148 A.3d 820 (Pa. Super. 2016) (citation omitted).

       Even if Jordan met all of the above requirements, his claim is refuted

by our review of the record.          In his post-sentence motion, Jordan cited to

the court’s statement during the sentencing hearing, that the sentences it

imposed for these charges “are separate and distinct crimes, I have to make

them consecutive.” N.T., 4/13/17, at 12. Jordan then reminded the court

that   it   had   the   option   of    running   the   sentences   concurrently   or

consecutively.     At argument on the post-sentence motion, the trial court

explained:

              THE COURT: Okay. All right.

               You know, your second point in here, when I said they
            must be run consecutive, I didn’t mean that in a legal
            sense that they were required, that was my feeling about
            the - -

                                          ***

               THE COURT: [T]hat’s just a question of semantics, that
            was my opinion that they had to be run consecutively
            because of the nature of the charges, the fact that they
            were separate, distinct crimes, not because they had to be
            run consecutive, you know. I know that much.

N.T., 5/5/17, at 5-6.

       With these comments, the trial court clearly explained that, even

though it was aware of its sentencing options, the sentences were imposed

consecutively because it believed the separate crimes deserved separate


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punishments. Moreover, although the trial court did impose these sentences

consecutively, it specifically told Jordan that each sentence it imposed fell

within the mitigated range of the Sentencing Guidelines. See N.T., 4/13/17,

at 12.   Once again, we agree with appellate counsel that this issue is

meritless.

      In his third issue, Jordan challenges the legality of his sentence. We

agree with appellate counsel’s determination that this issue is meritless

because, at the time of entering his plea, Jordan acknowledged that he was

facing a maximum aggregate sentence of thirty years. See N.T., 2/17/17 at

8. The aggregate maximum sixteen-year sentence he actually received fell

within the applicable statutory maximum for each charge.

      Finally, in his fourth issue, Jordan claims that the trial court erred in

denying his suppression motion. We agree with appellate counsel that this

claim is meritless.    “A plea of guilty constitutes a waiver of all non-

jurisdictional defects and defenses, and waives the right to challenge

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

Commonwealth v. Dixon, 161 A.3d 949, 951 (Pa. Super. 2017) (citation

omitted).

      In sum, we agree with counsel’s assessment that each issue Jordan

wished to raise is meritless.    Furthermore, our independent review of the

record reveals no other non-frivolous bases for appeal.      Flowers, supra.

Thus, this appeal is “wholly frivolous.”

      Petition to withdraw granted. Judgment of sentence affirmed.

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     Judge Lazarus joins the Memorandum.

     P.J.E. Stevens concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/27/2018




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