J-S55040-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARK COOK                                  :
                                               :
                       Appellant               :   No. 773 WDA 2019

        Appeal from the Judgment of Sentence Entered October 10, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0003397-2018


BEFORE:      MURRAY, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                           FILED NOVEMBER 19, 2019

        Appellant, Mark Cook, appeals from the aggregate judgment of sentence

of six to twelve months of confinement followed by 60 months of probation,

which was imposed after he pleaded guilty to two counts of intentional

possession of a controlled substance by a person not registered.1 With this

appeal, appellate counsel has filed a petition to withdraw and an Anders2

brief, stating that the appeal is wholly frivolous.     After careful review, we

affirm and grant counsel’s petition to withdraw.

        On October 10, 2018, pursuant to a plea agreement, Appellant pleaded

guilty to one count of possession of cocaine and one count of possession of


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1   35 P.S. § 780-113(a)(16).
2   Anders v. California, 386 U.S. 738 (1967).
J-S55040-19



heroin. N.T. at 3-5. In exchange, the Commonwealth withdrew five additional

counts:     one count of possession of firearm prohibited; two counts of

manufacture, delivery, or possession with intent to deliver a controlled

substance; one count of use or possession of drug paraphernalia; and one

count of conspiracy to commit manufacture, delivery, or possession with

intent to deliver a controlled substance.3 The parties made no agreement as

to sentencing.

       Appellant completed a written guilty plea colloquy, which informed him

that his “plea must be voluntary” and that he had “an absolute right to have

a trial by judge or jury.”       Written Guilty Plea Colloquy, 10/10/2018, at 1.

Appellant answered affirmatively to the written colloquy’s questions about

whether he understood that his sentences could be imposed consecutively and

what the maximum possible sentences are, whether he knew that he had the

presumption of innocence, and whether his attorney has discussed the

elements of the offenses and the factual basis for each charged offense. Id.

at 2, 4, 8. Appellant also acknowledged that he knew that the trial court was

not bound by the plea agreement.               Id. at   10.   Appellant handwrote his

answers to each question, initialed each page, and signed at the end of the

written colloquy.      See generally id.          The trial court also reviewed the

permissible range of sentences if Appellant had been convicted of all seven

____________________________________________


3 18 Pa.C.S. § 6105(a)(1), 35 P.S. § 780-113(a)(30), (32), and 18 Pa.C.S.
§ 903, respectively.


                                           -2-
J-S55040-19



counts originally charged and reaffirmed that Appellant understood that he

would have had a right to a trial by jury if he had not pleaded guilty. N.T. at

4-5, 7-8.

       Appellant proceeded immediately to his sentencing hearing, during

which the Commonwealth stated that Appellant had “a prior conviction for

possession with intent to deliver a controlled substance from 1999[,]” and

Appellant did not object to this assertion. Id. at 9. At the conclusion of the

sentencing hearing, the trial court sentenced Appellant to three to six months

of confinement followed by 30 months of probation on each count, with the

terms of confinement to be served consecutively to each other and the terms

of probation to be served consecutively to the confinement and to each other.

On November 7, 2018, Appellant filed this timely direct appeal.4

       On July 31, 2019, appellate counsel filed an Anders brief, in which he

presented the following issues:

       I.    Whether trial counsel provided ineffectiveness of counsel by
       advising Appellant to accept the guilty plea?

       II.    Whether Appellant’s sentence was illegal?

Anders Brief at 6 (trial court’s answers omitted). That same day, appellate

counsel sent a letter to Appellant, informing him that he intended to file a

petition for leave to withdraw, and he filed his petition to withdraw. Appellant

has not filed a pro se response to that petition.

____________________________________________


4Appellant filed his statement of errors complained of on appeal on May 28,
2019. The trial court entered its opinion on June 26, 2019.

                                           -3-
J-S55040-19


      “[W]hen 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. Blauser, 166 A.3d 428, 431 (Pa. Super.

2017). An Anders brief shall comply with the requirements set forth by the

Supreme Court of Pennsylvania in Commonwealth v. Santiago, 978 A.2d

349, 361 (Pa. 2009):

      [W]e hold 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 on point that have led to the conclusion
      that the appeal is frivolous.

      Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.

2005), and its progeny, 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. Schmidt, 165 A.3d 1002, 1006 (Pa. Super. 2017)

(citations and internal brackets and quotation marks omitted). “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



                                      -4-
J-S55040-19


judgment      as   to   whether   the   appeal   is,   in   fact,   wholly   frivolous.”

Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en

banc) (quoting Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super.

2004)).      “We must also ‘conduct an independent review of the record to

discern if there are any additional, non-frivolous issues overlooked by

counsel.’”    In re J.D.H., 171 A.3d 903, 908 (Pa. Super. 2017) (quoting

Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015)

(footnote omitted)).

      In this appeal, we observe that appellate counsel’s July 31, 2019,

correspondence to Appellant provided a copy of the Anders brief to Appellant

and advised Appellant of his right either to retain new counsel or to proceed

pro se on appeal to raise any points he deems worthy of the court’s attention.

Further, appellate counsel’s Anders Brief, at 7-11, complies with prevailing

law in that counsel has provided a procedural and factual summary of the case

with references to the record.          Appellate counsel additionally advances

relevant portions of the record that arguably support Appellant’s first claim on

appeal, id. at 16, but believes there is nothing in the record that arguably

supports Appellant’s second appellate claim.           Ultimately, appellate counsel

cites his reasons and conclusion that Appellant’s challenges are “wholly

frivolous.” Id. at 12-13, 17-18, 21. Counsel’s Anders brief and procedures

thus comply with the requirements of Santiago and Schmidt. We therefore




                                        -5-
J-S55040-19


proceed to conduct an independent review to ascertain whether the appeal is

indeed wholly frivolous.

       Preliminarily, we note that, “as a general rule, claims of ineffective

assistance of counsel should not be raised until collateral review[.]”

Commonwealth v. Miller, 212 A.3d 1114, 1129 (Pa. Super. 2019). The

Supreme Court of Pennsylvania has “created exceptions to that rule permitting

ineffectiveness claims to be presented in post-sentence motions and on direct

appeal under limited circumstances.” Commonwealth v. Delgros, 183 A.3d

352, 355 (Pa. 2018).          Those exceptions are where:     (1) “the claim of

ineffectiveness is apparent from the record and meritorious to the extent that

immediate consideration best serves the interests of justice;” or (2) “where

there is good cause shown and the defendant knowingly and expressly waives

his entitlement to seek subsequent [Post Conviction Relief Act (“PCRA”)]

review from his conviction and sentence[.]” Id. (citing Commonwealth v.

Holmes, 79 A.3d 562, 563-64 (Pa. 2013)). In the current action, we find no

claim of ineffectiveness apparent from the record, and Appellant has not

waived his entitlement to future PCRA review of his conviction and sentence.

Accordingly, Appellant’s first appellate claim merits no relief.5

____________________________________________


5 To the extent that Appellant is challenging the voluntariness of his guilty
plea, we would conclude that this issue also merits no relief, as the record
supports a finding that Appellant’s plea was entered knowingly, intelligently,
and voluntarily. Compare Commonwealth v. McGarry, 172 A.3d 60, 66-
67 (Pa. Super. 2017) (citing Official Comment to Pa.R.Crim. 590), appeal



                                           -6-
J-S55040-19


       Appellant next challenges the legality of his sentence. Anders Brief at

18.    The Anders brief provides no explanation whatsoever as to why

Appellant’s sentence should be considered illegal, see id. at 18-21, and we

find nothing in the record to support such a claim.6         As the trial court

explained:

       Because [Appellant] had a previous conviction for possession with
       intent to deliver a controlled substance in 1999, the statutory
       maximum sentence of imprisonment he faced at each count of
       conviction was not less than 18 months nor more than 36 months.
       [35 P.S. § 780-113(b).7] . . . [T]he sentences imposed by th[e
       trial c]ourt were in the mitigated range . . . The overall sentence
       imposed in this case was not illegal.

Trial Court Opinion, 6/26/2019, at 3-4.

       Based on the foregoing, we agree with appellate counsel that the issues

raised by Appellant are frivolous. In addition, we have reviewed the certified

record consistent with J.D.H., 171 A.3d at 908, and Flowers, 113 A.3d at

1250, and have discovered no additional arguably meritorious issues.

Therefore, we grant appellate counsel’s petition to withdraw and affirm the

trial court’s judgment of sentence.

____________________________________________


denied, 185 A.3d 966 (Pa. 2018), with N.T. at 4-5, 7-8, and Written Guilty
Plea Colloquy, 10/10/2018, at 1-2, 4, 8, 10.
6“When reviewing the legality of a sentence, our standard of review is de novo
and our scope of review is plenary.” Commonwealth v. Lekka, 210 A.3d
343, 355 (Pa. Super. 2019) (citation omitted).
7 “[I]f the violation is committed after a prior conviction of such person for a
violation of this act under this section has become final, such person shall be
sentenced to imprisonment not exceeding three years[.]” 75 P.S. § 780-
113(b).

                                           -7-
J-S55040-19


     Judgment of sentence affirmed.   Petition to withdraw as counsel

granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/19/2019




                               -8-
