J-S03011-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

JASON MICHAEL WOODALL

                        Appellant                   No. 395 WDA 2016


         Appeal from the Judgment of Sentence February 1, 2016
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0015787-2006
                         CP-02-CR-0015796-2006

BEFORE: OLSON, SOLANO and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                       FILED FEBRUARY 07, 2017

     Appellant, Jason Michael Woodall, appeals from the judgment of

sentence entered on February 1, 2016.      On this direct appeal, Appellant’s

court-appointed counsel filed both a motion to withdraw as counsel and an

accompanying brief pursuant to Commonwealth v. McClendon, 434 A.2d

1185 (Pa. 1981), and its federal predecessor, Anders v. California, 386

U.S. 738 (1967).   We conclude that Appellant’s counsel complied with the

procedural requirements necessary     to   withdraw.     Furthermore, after

independently reviewing the record, we conclude that the appeal is wholly

frivolous. We, therefore, grant counsel’s motion to withdraw and affirm the

judgment of sentence.




* Retired Senior Judge assigned to the Superior Court
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      This Court previously summarized the factual background of this case

as follows:

      On May 31, 2006, at 1:30 p.m., [Jerome] Bauer [(“Bauer”)]
      placed a wiretapped telephone call to [A]ppellant to purchase
      four ounces of cocaine. . . . Appellant indicated that he did have
      the amount, and they agreed to meet at 4:00 p.m. at the bar
      Bauer owned. Police officers directed Bauer to place a follow-up
      call to receive an “extra one,” which meant an extra ounce of
      cocaine. . . . [At the appointed time,] Appellant walked into the
      bar and made eye contact with Bauer. Appellant then met Bauer
      in the game room, and they walked to an alcove between the
      kitchen and the bathroom where they exchanged $3,600[.00] for
      cocaine. . . . [A]ppellant turned around, walked back out of the
      bar, jogged to his vehicle, and left. . . .

      In the bar, officers recovered the cocaine from Bauer, removed
      the body wire, and searched him. The cocaine weighed 82.7
      grams, which was one ounce short of the agreed upon amount.
      Consequently, Bauer was directed to place another wiretapped
      phone call to [A]ppellant regarding the shortage. Appellant
      agreed to meet Bauer later that evening at the Mt. Oliver
      McDonald’s to provide the missing ounce of cocaine, as he
      believed he was followed from the parking lot of the bar. . . .
      Appellant never arrived [at the McDonald’s]. Later that evening,
      Bauer called [A]ppellant and arranged to meet him on June 1,
      2006, at the same McDonald’s to get the ounce of cocaine.
      [When Bauer arrived at the McDonald’s] Appellant exited the
      McDonald’s and proceeded to the front passenger seat of Bauer’s
      vehicle. While sitting in the car, [A]ppellant handed Bauer an
      ounce of cocaine. . . .

      On June 7, 2006, officers had Bauer make another recorded call
      to [A]ppellant and set up another transaction for four ounces at
      the same McDonald’s. . . . Appellant arrived and proceeded into
      the bathroom. However, the undercover officers followed him
      into the bathroom and placed [A]ppellant under arrest. The
      officers found a “fairly large softball size of cocaine” in
      [A]ppellant’s right front pocket and a piece of crack cocaine on
      the floor.




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Commonwealth v. Woodall, 120 A.3d 1064, 2015 WL 7454076, *1-3 (Pa.

Super. 2015), appeal discontinued, 143 WAL 2015 & 144 WAL 2015 (Pa.

May 22, 2015) (internal citations, footnotes, and certain paragraph breaks

omitted).

        The procedural history of this case is as follows.      On December 29,

2006, the Commonwealth charged Appellant, via two separate criminal

informations, with two counts of possession with intent to deliver a

controlled substance,1 two counts of possession of a controlled substance,2

two counts of driving with a suspended license,3 and delivery of a controlled

substance.4 The trial court consolidated the criminal informations for trial.

        On March 5, 2009, Appellant was convicted of possession of a

controlled    substance,   possession   with   intent   to   deliver   a   controlled

substance, and driving with a suspended license for the events that occurred

on June 7, 2006. The jury was unable to reach a verdict on the delivery of a

controlled    substance,   possession   with   intent   to   deliver   a   controlled

substance, and possession of a controlled substance charges for the events

that occurred on May 31 and June 1, 2006. On March 24, 2009, Appellant




1
    35 P.S. § 780-113(a)(30).
2
    35 P.S. § 780-113(a)(16).
3
    75 Pa.C.S.A. § 1543(a).

4
    35 P.S. § 780-113(a)(30).

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was sentenced to an aggregate term of 7 to 14 years’ imprisonment for the

events that occurred on June 7, 2006.

     A retrial was held with respect to the May 31 and June 1, 2006 events

and on April 1, 2011, Appellant was convicted of delivery of a controlled

substance, possession with intent to deliver a controlled substance,

possession of a controlled substance, and driving with a suspended license.

On June 30, 2011, the trial court sentenced Appellant to an aggregate term

of 7 to 14 years’ imprisonment for the events that occurred on May 31 and

June 1, 2006. That sentence was ordered to run concurrently with the term

of imprisonment imposed on March 24, 2009.

     On June 14, 2012, Appellant filed a pro se petition pursuant to the

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

was appointed.   On February 13, 2013, Appellant filed an amended PCRA

petition. On February 15, 2013, the PCRA court granted the amended PCRA

petition and reinstated Appellant’s direct appellate rights nunc pro tunc. On

March 27, 2015, this Court affirmed Appellant’s judgments of sentence. See

generally Woodall, 2015 WL 7454076. Appellant’s allocatur petitions were

discontinued on May 22, 2015.

     On May 6 and June 29, 2015, Appellant filed pro se PCRA petitions.

Counsel was appointed and filed an amended PCRA petition. On February 1,

2016, the PCRA court granted Appellant’s amended PCRA petition and

vacated his judgments of sentence.        That same day, the trial court


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sentenced   Appellant   to    an    aggregate    term   of     42    to   84   months’

imprisonment. This timely appeal followed.5

     Appellant’s counsel raises one issue in his Anders brief:

     Whether the trial court erred and/or abused its discretion by
     sentencing Appellant to a state sentence and telling Appellant
     that the trial court would immediately parole Appellant when
     that has not been done?

Anders Brief at 8.

     Before reviewing the merits of this appeal, we must first determine

whether counsel has fulfilled the necessary procedural requirements for

withdrawing as counsel. See Commonwealth v. Flowers, 113 A.3d 1246,

1248-1249 (Pa. Super. 2015) (citation omitted).                To withdraw under

Anders,     court-appointed        counsel    must   satisfy        certain    technical

requirements. “First, counsel must petition the court for leave to withdraw

and state that after making a conscientious examination of the record, he

has determined that the appeal is frivolous.” Commonwealth v. Bynum-

Hamilton, 135 A.3d 179, 183 (Pa. Super. 2016), quoting Commonwealth

v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Second, counsel must file an

Anders brief, in which counsel:

     (1) provide[s] a summary of the procedural history and facts,
     with citations to the record; (2) refer[s] to anything in the record
     that counsel believes arguably supports the appeal; (3) set[s]
     forth counsel’s conclusion that the appeal is frivolous; and (4)
     state[s] counsel’s reasons for concluding that the appeal is
     frivolous.

5
  Appellant and the trial court complied with Pennsylvania Rule of Appellate
Procedure 1925.

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Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa. Super. 2015),

quoting Santiago, 978 A.2d at 361.

        Finally, counsel must furnish a copy of the Anders brief to his client

and “advise[] him of his right to retain new counsel, proceed pro se[,] or

raise any additional points that he deems worthy of the court’s attention,

and attach[] to the Anders petition a copy of the letter sent to the client.”

Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010) (citation

omitted).

        If counsel meets all of the above obligations, “it then becomes the

responsibility of the reviewing court to make a full examination of the

proceedings and make an independent judgment to decide whether the

appeal is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5, quoting

McClendon, 434 A.2d at 1187.          It is only when both the procedural and

substantive requirements are satisfied that counsel will be permitted to

withdraw. In the case at bar, counsel has met all of the above procedural

obligations. We now turn to whether this appeal is wholly frivolous.6

        The lone issue raised in counsel’s Anders brief challenges the

discretionary aspects of Appellant’s sentence. Pursuant to statute, Appellant

does not have an automatic right to appeal the discretionary aspects of his

sentence.     See 42 Pa.C.S.A. § 9781(b).      Instead, Appellant must petition



6
    Appellant did not file a response to counsel’s Anders brief.

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this Court for permission to appeal the discretionary aspects of his sentence.

Id.

      As this Court has explained, in order to reach the merits of a

discretionary aspects claim,

      [w]e conduct a four-part analysis to determine: (1) whether
      [the] 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 [the] 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.A. § 9781(b).

Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (citation

omitted).

      In this case, Appellant failed to preserve the issue at sentencing or in a

post-sentence motion.7         Therefore, Appellant waived his discretionary

aspects claim.     See id.      An issue that is waived is frivolous.      See

Commonwealth v. Kalichak, 943 A.2d 285, 291 (Pa. Super. 2008).

Therefore, Appellant’s discretionary aspects claim is frivolous.

      In sum, we conclude that the lone issue raised in counsel’s Anders

brief is wholly frivolous.   Furthermore, after an independent review of the

entire record, we conclude that no other issue of arguable merit exists.

Therefore, we grant counsel’s request to withdraw. Having determined that

7
  The issue was not preserved in Appellant’s pro se “Motion to Suspend
Sentence” as Appellant’s motion was a legal nullity because it was filed while
he was represented by counsel. See Commonwealth v. Reid, 117 A.3d
777, 781 n.8 (Pa. Super. 2015). Moreover, even if it were not a legal
nullity, Appellant’s motion was untimely. See Pa.R.Crim.P. 720(A)(1).

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the lone issue raised on appeal is frivolous, we affirm the judgment of

sentence.

     Motion to withdraw as counsel granted.      Judgment of sentence

affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/7/2017




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