J-S12029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RAUL DOMINGO SOTO,

                            Appellant                 No. 1240 EDA 2014


        Appeal from the Judgment of Sentence Entered March 3, 2014,
               In the Court of Common Pleas of Lehigh County
            Criminal Division at No(s): CP-39-CR-0003672-2013


BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                            FILED MARCH 04, 2015

       Appellant, Raul Domingo Soto, appeals from the judgment of sentence

entered following his conviction of possession with intent to deliver cocaine.

Appellate counsel has filed a petition to withdraw his representation and a

brief pursuant to Anders v. California, 386 U.S. 738 (1967), and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), which govern a

withdrawal from representation on direct appeal.          We grant counsel’s

petition to withdraw and affirm the judgment of sentence.

       The trial court summarized the procedural history of this case as

follows:


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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             The terms of the plea agreement required this Court to
      impose a minimum sentence of five (5) years imprisonment.
      Prior to the guilty plea, [A]ppellant sought an evaluation by the
      T-Cap Program, which is a drug treatment program.            The
      evaluator recommended [A]ppellant for treatment in their
      program.       However, the T-Cap Program is a residential
      substance abuse treatment program which could only be part of
      a county sentence. In light of the required minimum sentence of
      five (5) years, which would be served in a state correctional
      institution, the intermediate punishment sentence of T-Cap could
      not be part of [A]ppellant’s possible sentence.

            On March 3, 2014, this Court complied with the terms of
      the plea agreement and imposed a minimum sentence of sixty
      (60) months and a maximum sentence of one hundred and
      twenty (120) months.         It was also recommended that
      [A]ppellant be sent to a state correctional institution that could
      address his substance abuse issues.

            On March 12, 2014, defense counsel filed a “Post Sentence
      Motion — Motion To Reconsider” requesting placement in the T-
      Cap Program. The motion was denied because placement in the
      T-Cap Program would violate the terms of the plea agreement.
      A Notice of Appeal was filed on April 11, 2014,2 and pursuant to
      this Court’s Order, a “1925b Statement Of Matters Complained
      Of On Appeal” was timely filed by counsel. It is alleged that this
      Court abused its discretion by refusing to “consider” [A]ppellant
      for the T-Cap Program.
            2
              Prior to the Notice of Appeal, [A]ppellant filed a pro
            se “Post-Sentence Motion To Withdraw And
            Challenge Guilty Plea” on March 21, 2014. Due to
            the untimeliness of the motion, counsel was
            appointed to represent [A]ppellant and to proceed
            under the Post-Conviction Relief Act. This Court has
            issued a stay of that motion pending the resolution
            of this direct appeal.

Trial Court Opinion, 5/13/14, at 1-2.

      As noted, counsel has filed a petition to withdraw from representation.

Before we address the questions raised on appeal, we first must resolve


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appellate counsel’s request to withdraw. Commonwealth v. Cartrette, 83

A.3d 1030 (Pa. Super. 2013) (en banc). There are procedural and briefing

requirements imposed upon an attorney who seeks to withdraw on appeal.

The procedural mandates are that 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.

Id. at 1032 (citation omitted).

      In this case, counsel has satisfied those directives. Within his petition

to withdraw, counsel averred that he conducted an examination of the

record. Following that review, counsel concluded that the present appeal is

frivolous. Counsel sent to Appellant a copy of the Anders brief and petition

to withdraw, as well as a letter, a copy of which is attached to the petition to

withdraw. In the letter, counsel advised Appellant that he could represent

himself or that he could retain private counsel to represent him.

      We now examine whether the brief satisfies the Supreme Court’s

dictates in Santiago, which provide that

      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 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

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      on point that have led to the conclusion that the appeal is
      frivolous.

Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361).

      Counsel’s brief is compliant with Santiago. It sets forth the history of

this case and outlines pertinent case authority. We thus conclude that the

procedural and briefing requirements for withdrawal have been met.

      Counsel presents the following issue for our review:

      A. Whether an appeal alleging that the “[trial c]ourt erred in
      refusing to consider [Appellant] for an Intermediate Punishment
      program as part of its discretion at sentencing” is frivolous
      where the plea agreement reached by the parties required
      [Appellant] to accept and the court to impose a minimum
      sentence of five years?

Appellant’s Brief at 5.

      This attempts to raise a challenge to the discretionary aspects of his

sentence.    However, where a defendant pleads guilty pursuant to a plea

agreement specifying particular penalties, he may not seek a discretionary

appeal challenging those agreed-upon penalties.               Commonwealth v.

Brown,      982   A.2d    1017,   1018-1019   (Pa.   Super.    2009);   see   also

Commonwealth v. Dalberto, 648 A.2d 16 (Pa. Super. 1994) (holding that

a defendant who has pled guilty may challenge the discretionary aspects of

his sentence as long as the defendant did not agree to a negotiated sentence

as part of a plea agreement).

      The trial court offered the following background of this case, which we

find pertinent:


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            During the guilty plea, the parameters of the plea bargain
     were explained to [A]ppellant, who was represented by counsel,
     Eric Dowdle, Esquire. The agreement was that [A]ppellant would
     receive a fixed minimum sentence of five (5) years. It was also
     explained to [A]ppellant that placement in the T-Cap Program
     was not an option due to the length of the minimum sentence.
     Counsel’s explanation for securing the T-Cap evaluation was in
     the hopes of convincing the District Attorney to alter the terms
     of the plea agreement by demonstrating that [A]ppellant was in
     need of in-patient drug treatment.         Ultimately, this well-
     intentioned request did not change the District Attorney’s
     position with respect to the terms of the guilty plea.

            The Commonwealth’s reasoning is found, in part, in the
     presentence report, which was reviewed prior to sentencing.
     The report revealed that [A]ppellant had two prior convictions
     for charges of Possession With intent to Deliver a Controlled
     Substance. The presentence investigator also revealed “obvious
     discrepancies with regard to his substance abuse as he
     previously denied regular drug and alcohol use but in the T-Cap
     evaluation reported a lengthy history of substance abuse.”
     Finally, the police prosecutor and the District Attorney’s Office
     were opposed to [A]ppellant’s placement in T-Cap.

            During the sentencing proceedings it was evident to
     [A]ppellant that a minimum sentence of five (5) years would be
     imposed. However, he did not inquire about why he could not
     receive a sentence in the standard range of the guidelines. It
     was explained to him that his plea agreement required a five (5)
     year minimum sentence.        It was also explained that his
     agreement was affected by the mandatory minimum which
     would have been invoked by the Commonwealth if the plea
     agreement was not reached and [A]ppellant was convicted after
     a trial.

           The only request by defense counsel at sentencing was
     that [A]ppellant be sent to a state correctional institution which
     could provide drug treatment. He also said, “I know T-Cap is not
     available to him under the plea . . . .” This Court, in imposing
     sentence, made the drug treatment recommendation.

Trial Court Opinion, 5/13/14, at 2-4 (footnotes omitted).




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      Likewise, our review of the record reflects that the trial court

sentenced Appellant in accordance with the negotiated plea agreement.

Indeed, Appellant’s guilty plea agreement specified that a five-year

minimum sentence was to be imposed.                N.T., 2/4/14, at 2, 3, 6-7.

Subsequently, the trial court imposed a sentence that was in accordance

with the terms of the negotiated plea agreement.             N.T., 3/3/14, at 15.

Therefore, because Appellant pled guilty pursuant to a plea agreement

specifying particular penalties and the trial court imposed a sentence

pursuant to that agreement, Appellant is not entitled to review of the

discretionary aspects of his sentence.          Brown, 982 A.2d at 1018-1019.

Thus, we conclude this claim fails.

      We also have independently reviewed the record in order to determine

whether     there   are   any   non-frivolous    issues   present   in   this   case.

Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014). Having

concluded that there are no meritorious issues, we grant Appellant’s counsel

permission to withdraw, and affirm the judgment of sentence.

      Petition of counsel to withdraw is granted.          Judgment of sentence

affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/4/2015




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