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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                      :   IN THE SUPERIOR COURT OF
                                                                PENNSYLVANIA

                 v.


    JASON CISNE

                        Appellant                     :   No. 1179 EDA 2017

            Appeal from the Judgment of Sentence March 10, 2017
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0006829-2008


BEFORE:     GANTMAN, P.J., LAZARUS, J., and OTT, J.

MEMORANDUM BY OTT, J.:                                       FILED JANUARY 07, 2019

        Jason Cisne appeals from the judgment of sentence imposed on March

10, 2017, in the Court of Common Pleas of Philadelphia County, following the

entry of a negotiated guilty plea of 25 to 50 years' incarceration on the charges

of third degree murder, possession of            a   firearm prohibited and possession of

an instrument of       crime.'   Cisne pled guilty on March 1, 2010.               However,

defense counsel failed to file      a   direct appeal, as requested. Pursuant to      a   Post

Conviction Relief Act petition, Cisne was granted nunc pro tunc relief and was

allowed to file   a   direct appeal. Cisne has done so. The appeal         is now     before

us and appointed counsel has filed an                Anders brief along with   a   motion to

withdraw as counsel.        After       a   thorough review of the submissions by the




'   18 Pa.C.S. §§ 2502(c), 6105(a)(1) and 907(a), respectively.
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parties, relevant law, and the certified record, we affirm and grant counsel's

petition to withdraw.

        Because this matter has been                a   procedural nightmare,      a   recital of the

factual and procedural history is in order to provide the necessary context of

our review.

        On March 1, 2010, Cisne entered into a negotiated                     guilty plea to third

degree murder,        a   violation of the Uniform Firearms Act, and possession of an

instrument of crime.               The notes of testimony of the guilty plea reveal that

Cisne stood over the victim, Phillip Underwood, and while Underwood was,

"laying on the sidewalk face-up...Cisne pulled                 a   gun and shot him in the left

shoulder, two times in the chest, the abdomen and the left thigh." N.T. Guilty

Plea,   3/1/2010, at 9.           No   direct appeal was filed.

        Cisne filed       a   timely petition pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.            §   9541 et seq. Appointed counsel filed        a   Turner/Finley2
no   merit letter accompanied by             a   motion to withdraw as counsel. Pursuant to

Pa.R.Crim.P. 907, the PCRA court sent Cisne notice of its intent to dismiss the

matter without        a   hearing. Cisne responded to the Rule 907 notice by claiming

PCRA counsel had failed to raise the claim                 that trial counsel was ineffective for
failing to file   a   requested direct appeal. Cisne attached             a   copy of    a   letter he

had purportedly sent to trial counsel asking a direct appeal be filed. Without

ruling on PCRA counsel's motion to withdraw, the PCRA court denied Cisne's


2Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (PA. Super. 2008) (en banc).
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PCRA    petition. On appeal,     a   panel of our Court agreed that the issues raised

were without merit, but recognized that Cisne's claim that trial counsel failed

to file    a   direct appeal as requested was arguably meritorious.                        See

Commonwealth v. Cisne,                  2014      WL   10979661       (Pa.   Super.       2014)

(unpublished memorandum).                The matter was then            remanded for an

evidentiary hearing to determine the status of Cisne's direct appeal rights.

        Upon remand, Cisne's direct appeal rights were reinstated, and                a   direct

appeal was filed. Counsel improperly filed             a   Turner/Finley     no   merit letter

along with     a   motion to withdraw as counsel.          On September 15, 2015,           this

Court filed    a   per curiam order noting the matter was       a   direct appeal nunc pro

tunc and instructing counsel to file either an advocate's brief or an Anders

brief. Counsel subsequently filed two (2) deficient Anders briefs before being

relieved, sua sponte, of his responsibilities to Cisne. Subsequent counsel also

filed an Anders brief along with        a   motion to withdraw as counsel. This brief

was addressed by our Court. See             Commonwealth v. Cisne, 159 A.3d 580
(Pa.    Super. 2016)(unpublished memorandum).                   Our Court agreed with

counsel that no meritorious issues existed regarding the entry of the guilty

plea.     There was no evidence of record to suggest, much less demonstrate,

that the plea was invalid.            However, that panel noted the record was

inconclusive        regarding   whether        Cisne   had     been    subjected      to     an

unconstitutional mandatory minimum sentence. Accordingly, the judgment of

sentence for third degree murder was vacated and the matter was remanded

for an evidentiary hearing. See Id.

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        Upon remand, the trial court determined Cisne had not been subjected

to an unconstitutional mandatory minimum sentence and reimposed the prior

sentence.     Cisne now appeals.

        Counsel has filed an Anders brief, explaining there are no meritorious

issues.3 Our review leads us to agree.

        We begin by noting,

        The standard of review when an      Anders/McClendon brief         has
        been presented is as follows:

            To be permitted to withdraw pursuant to   Anders, counsel
            must: (1) petition the court for leave to withdraw stating
            that after making a conscientious examination of the
            record it has been determined that the appeal would be
            frivolous; (2) file a brief referring to anything that might
            arguably support the appeal, but which does not resemble
            a "no merit" letter or amicus curiae brief; and (3) furnish
            a copy of the brief to the defendant and advise him of his
            right to retain new counsel or raise any additional points
            that he deems worthy of the court's attention.
            Commonwealth v. Boyd, 763 A.2d 421, 423 (Pa. Super.
            2000). If these requirements are met, the Court may then
            evaluate the record to determine whether the appeal is
            frivolous. Id.
        Pursuant to the recent amendments of Rule 1925, if counsel
        intends to submit an Anders/McClendon brief, the proper
        procedure is provided in Pa.R.A.P. 1925(c)(4):

            In a criminal case, counsel may file of record and serve on
            the judge a         statement of intent to file an
            Anders/McClendon brief in lieu of filing a Statement. If,
            upon review of the Anders/McClendon brief, the
            appellate court believes that there are arguably


3The matter was initially remanded because counsel had failed to provide
documentation that he had informed Cisne of his rights under Anders.
Counsel has provided the proper documentation, and we may substantively
address this appeal.

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           meritorious issues for review, those issues will not be
           waived; instead, the appellate court may remand for the
           filing of a Statement, a supplemental opinion pursuant to
           1925(a) or both. Upon remand, the trial court may, but is
           not required to, replace appellant's counsel.
           Rule 1925 provides two options which were available to
           Appellant's counsel at the time the trial court directed him
           to file a concise statement. Appellant's counsel could have
           complied with the order and filed a concise statement
           under Pa.R.A.P. 1925(b), or alternatively, could have filed
           a statement of intent to file an Anders/McClendon brief.
           See Commonwealth v. Goodwin, 928 A.2d 287, 293
           (Pa. Super. 2007) (en banc) (finding that under the newly
           promulgated Rule 1925, the concise statement filed by
           appellant's attorney indicating that 'there were no non -
           frivolous matters that can be raised on appeal', would be
           accepted by the Court as a statement of intent to file an
           Anders/McClendon brief). These options are detailed in
           the Note to Pa.R.A.P. 1925(c)(4):

             Even lawyers seeking to withdraw pursuant to the
             procedures set forth in Anders v. California, 386
             U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and
             Commonwealth v. McClendon, 495 Pa. 467, 434
             A.2d 1185 (1981) are obligated to comply with all
              rules, including the filing of a Statement. See
              Commonwealth v. Myers, 897 A.2d 493, 494-496
              (Pa. Super. 2006); Commonwealth v. Ladamus,
              896 A.2d 592, 594 (Pa. Super. 2006). However,
              because a lawyer will not file an Anders/McClendon
              brief without concluding that there are no non -
              frivolous issues to raise on appeal, this amendment
              allows a lawyer to file, in lieu of a Statement, a
              representation that no errors have been raised
              because the lawyer is (or intends to be) seeking to
              withdraw under Anders/McClendon. At that point,
              the appellate court will reverse or remand for a
              supplemental Statement and/or opinion if it finds
              potentially    non -frivolous    issues    during its
              constitutionally required review of the record.
        Pa.R.A.P. 1925 at Note (2007) (emphasis added).

Commonwealth v. McBride, 957 A.2d 752, 756-57           (Pa. Super. 2016).


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         Here,   counsel   has   complied with the technical           requirements of

Anders/McClendon. Accordingly, we proceed. Counsel has filed                 a   Pa.R.A.P.

1925(b) statement in which the sole issue raised          is a   claim that his plea was

involuntary due to the ineffective assistance of trial counsel. Specifically,

         [Cisne] is claiming that the Negotiated Plea was coerced because
         his counsel failed to investigate witnesses, was unprepared, and
         thus forced [Cisne] to plead guilty when he was actually innocent.
         Further, because of this coercion, the sentence imposed as a
         "Negotiated Guilty Plea" was unreasonable.
Pa.R.A.P. 1925(b) Statement, 5/3/2017, at 1-2.

         As noted, the prior decision of our Court in 2016,       see Cisne, supra at

159 A.3d 580 has already determined there are no meritorious issues

regarding the voluntariness of the plea in the direct appeal.             To the extent

that Cisne's claims are based upon claims of ineffective assistance of counsel,

a    defendant cannot challenge trial counsel's ineffectiveness on direct appeal,

but must raise such claims in      a   timely   PCRA   petition. See Commonwealth

v.   Grant, 813 A.2d 726     (Pa. 2002). See      also Commonwealth v. Holmes,
79 A.3d 562 (Pa. 2013) ) addressing the limited circumstances, none of which

are present instantly, in which ineffective assistance of counsel claims may be

addressed on direct appeal).4




4   Cisne has filedresponse to counsel's Anders brief. However, this response
                      a
details allegations of ineffective assistance of counsel. As noted, such claims
are properly raised in a timely PCRA petition, not on direct appeal.




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        There are only three avenues of appeal following          a   negotiated guilty

plea, jurisdiction (which has never been in question), voluntariness of the plea

(which has been previously addressed) and legality of sentence.5 Cisne argues

his sentence is unreasonable, not illegal.           Such   a   claim challenges the

discretionary aspects of       a    sentence, not the legality of the sentence.

Moreover, we note that the hearing on remand, immediately prior to this

appeal, determined Cisne had not been subjected to an unconstitutional

mandatory minimum sentence and                so   the sentence was not illegal.

Accordingly, there is no meritorious issue to be found regarding sentencing.

        Because the     certified    record   amply demonstrates        there are no

meritorious issues to be found on direct appeal, we affirm the judgment of

sentence.        Additionally, we grant counsel's motion to withdraw from

representation.

        Judgment of sentence affirmed. Motion to withdraw granted.

        Judge Lazarus joins this memorandum.

        President Judge Gantman concurs in the result.




5   Commonwealth v. Heaster,        171 A.3d 268, 271 (Pa. Super. 2017) (upon
the entry of a      negotiated guilty plea, a defendant waives all claims and
defenses other than those sounding in the jurisdiction of the court, the validity
of the plea, and what has been termed the "legality" of the sentence imposed).

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Judgment Entered.




  seph D. Seletyn,
Prothonotary



Date: 1/7/19




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