J-S10035-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    GARY CLANTON                               :
                                               :
                       Appellant               :       No. 764 EDA 2018

             Appeal from the Judgment of Sentence June 30, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0011724-2012


BEFORE:      GANTMAN, P.J.E., STABILE, J., and COLINS*, J.

MEMORANDUM BY GANTMAN, P.J.E.:                          FILED MARCH 22, 2019

        Appellant, Gary Clanton, appeals nunc pro tunc from the judgment of

sentence entered in the Philadelphia County Court of Common Pleas, following

his negotiated guilty plea to third-degree murder, conspiracy, and firearms

not to be carried without a license.1 We affirm and grant counsel’s petition to

withdraw.

        The relevant facts and procedural history of this case are as follows. On

October 25, 2011, Appellant shot and killed Victim. Appellant fled the scene

and then handed a firearm to Co-Defendant. On June 30, 2014, Appellant

entered a negotiated guilty plea to third-degree murder, conspiracy, and

firearms not to be carried without a license. The court sentenced Appellant


____________________________________________


1   18 Pa.C.S.A. §§ 2502(c), 903, and 6106(a)(1), respectively.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S10035-19


that same day to an aggregate term of 25 to 50 years’ imprisonment.

      On March 4, 2015, Appellant timely filed pro se his first petition pursuant

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

followed by several amended petitions. On February 16, 2018, the PCRA court

granted Appellant relief and reinstated his direct appeal rights nunc pro tunc.

The court appointed new appellate counsel on March 9, 2018, who filed a

timely notice of direct appeal nunc pro tunc that same day. The court, on

March 15, 2018, ordered Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). On March 20, 2018,

counsel filed a Rule 1925(c)(4) statement of intent to file an Anders brief.

      Counsel filed an application to withdraw and an Anders brief in this

Court on June 20, 2018. On June 25, 2018, counsel filed in this Court a motion

to remand for the trial court to hold a hearing pursuant to Commonwealth

v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998), which this Court denied on July

18, 2018. On November 28, 2018, Appellant filed a pro se application in this

Court for an extension of time to file a response to counsel’s Anders brief,

which this Court granted. On December 21, 2018, Appellant filed a pro se

response to counsel’s Anders brief.

      As a preliminary matter, appellate counsel seeks to withdraw his

representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.

1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Santiago, 602 Pa. 159,

978 A.2d 349 (2009). Anders and Santiago require counsel to: (1) petition


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the Court for leave to withdraw, certifying that after a thorough review of the

record, counsel has concluded the issues to be raised are wholly frivolous; (2)

file a brief referring to anything in the record that might arguably support the

appeal; and (3) furnish a copy of the brief to the appellant and advise him of

his right to obtain new counsel or file a pro se brief to raise any additional

points the appellant deems worthy of review. Santiago, supra at 173-79,

978 A.2d at 358-61.          Substantial compliance with these requirements is

sufficient.   Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.

2007). “After establishing that the antecedent requirements have been met,

this Court must then make an independent evaluation of the record to

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

v. Palm, 903 A.2d 1244, 1246 (Pa.Super. 2006) (quoting Commonwealth

v. Townsend, 693 A.2d 980, 982 (Pa.Super. 1997)).

       In Santiago, supra, our Supreme Court addressed the briefing

requirements where court-appointed appellate counsel seeks to withdraw

representation:

          Neither Anders nor McClendon[2] requires that counsel’s
          brief provide an argument of any sort, let alone the type of
          argument that counsel develops in a merits brief. To repeat,
          what the brief must provide under Anders are references
          to anything in the record that might arguably support the
          appeal.

                                       *       *   *


____________________________________________


2   Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).

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         Under Anders, the right to counsel is vindicated by
         counsel’s examination and assessment of the record and
         counsel’s references to anything in the record that arguably
         supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

         [I]n 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.

Id. at 178-79, 978 A.2d at 361.

      Instantly, appellate counsel filed a petition for leave to withdraw. The

petition states counsel performed a conscientious review of the record and

concluded the appeal is wholly frivolous. Counsel also supplied Appellant with

a copy of the withdrawal petition, the brief, and a letter explaining Appellant’s

right to proceed pro se or with new privately-retained counsel to raise any

additional points Appellant deems worthy of this Court’s attention.       In his

Anders brief, counsel provides a summary of the relevant facts and

procedural history of the case. Counsel refers to facts in the record that might

arguably support the issues raised on appeal and offers citations to relevant

law. The brief also provides counsel’s reasons for concluding that the appeal

is frivolous. Thus, counsel has substantially complied with the requirements

of Anders and Santiago.


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      In addition to counsel’s Anders brief, Appellant has filed a pro se

response with this Court.     In general, when examining most non-Anders

cases, this Court will not review pro se briefs filed by appellants who have had

the benefit of appellate counsel. Commonwealth v. Nischan, 928 A.2d 349,

353 (Pa.Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).

           However, Anders specifically contemplates that, after
           counsel files the Anders brief, an appellant may file a pro se
           brief. Indeed, …part of counsel’s duty under Anders is to
           advise the appellant of the right to raise points in addition to
           those in counsel’s Anders brief. Thus, when conducting an
           Anders review, this Court will consider not only the brief
           filed by counsel but also any pro se appellate brief.

           If this Court receives a petition to withdraw and a brief, both
           submitted in accord with Anders, and if we are satisfied that
           counsel has complied with the three technical Anders
           requirements, we will then undertake our own independent
           examination of the issues raised in the Anders brief and in
           any pro se brief to determine whether we agree with
           counsel’s assessment that the appeal before us is frivolous.
           If, after our review, we determine that the appeal is
           frivolous, then we will grant counsel’s petition to withdraw
           and we will affirm the judgment of sentence. However, if it
           appears that there are non-frivolous issues, we will deny the
           petition to withdraw and remand the case with directions that
           counsel file an advocate’s brief. An advocate’s brief must
           contain fully developed arguments supporting the appellant’s
           position. After the filing thereof, the Commonwealth will
           have the opportunity to submit a responsive brief. Upon
           receipt of the advocate’s brief and the Commonwealth’s
           response, we will then decide the merits of the case.

Id. at 353-354 (citations omitted). Because Appellant has exercised his right

to file a pro se brief, we will review his issue as well.

      Appellant raises the following issues for our review:




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J-S10035-19


         WHETHER THERE ARE ANY ISSUES OF ARGUABLE MERIT
         THAT COULD BE RAISED ON APPEAL PRESENTLY BEFORE
         THIS COURT AND WHETHER THE APPEAL IS WHOLLY
         FRIVOLOUS?

(Anders Brief at 4).

         CAN A PRO SE LITIGANT ARGUE INEFFECTIVE ASSISTANCE
         OF TRIAL AND APPELLATE COUNSEL ON DIRECT REVIEW
         WHEN ABANDONED BY DIRECT APPELLATE COUNSEL VIA
         AN ANDERS BRIEF?

(Appellant’s Pro Se Supplemental Brief at 5).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the reasoned opinion of the Honorable Sandy L.V. Byrd,

we conclude Appellant’s first issue merits no relief. The trial court opinion

comprehensively discusses and properly disposes of the question presented.

(See Trial Court Opinion, filed May 29, 2018, at 2-4) (finding: Appellant

completed both oral and written plea colloquies; Appellant understood nature

of charges, factual basis for guilty plea, right to jury trial, presumption of

innocence until proven guilty beyond reasonable doubt, permissible range of

sentences on charged offenses, and terms of plea agreement; court found

Appellant entered his guilty plea knowingly, intelligently, and voluntarily;

additionally, Appellant admitted his guilt under oath in open court).      The

record supports the court’s reasoning. Therefore, Appellant’s first issue lacks

merit.

      In his pro se issue, Appellant argues his lack of legal training entitles

him to challenge prior counsel’s deficiencies on direct appeal.      Appellant


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J-S10035-19


contends the cumulative effects of numerous errors by prior counsel led to an

involuntary and unintelligent waiver of his right to trial. Appellant concludes

this Court should remand his case so that he can properly preserve his

ineffective assistance of counsel claims in the trial court.        Appellant also

requests appointment of counsel and reinstatement of his post-sentence

motion rights nunc pro tunc. We disagree.

        As a rule, ineffective assistance of counsel claims should be deferred to

proceedings under the PCRA. See generally Commonwealth v. Grant, 572

Pa. 48, 813 A.2d 726 (2002) and its progeny. Our Supreme Court has further

held:

           By way of summary, we hold that Grant’s general rule of
           deferral to PCRA review remains the pertinent law on the
           appropriate timing for review of claims of ineffective
           assistance of counsel; we disapprove of expansions of the
           exception to that rule recognized in [Commonwealth v.
           Bomar, 573 Pa. 426, 826 A.2d 831 (2003), cert. denied,
           540 U.S. 1115, 124 S.Ct. 1053, 157 L.Ed.2d 906 (2004);
           and we limit Bomar, a case litigated in the trial court before
           Grant was decided and at a time when new counsel entering
           a case upon post-verdict motions was required to raise
           ineffectiveness claims at the first opportunity, to its pre-
           Grant facts. We recognize two exceptions, however, both
           falling within the discretion of the trial judge. First, we
           appreciate that there may be extraordinary circumstances
           where a discrete claim (or claims) of trial counsel
           ineffectiveness is apparent from the record and meritorious
           to the extent that immediate consideration best serves the
           interests of justice; and we hold that trial courts retain their
           discretion to entertain such claims. …

           Second, with respect to other cases and claims, including
           cases such as Bomar and the matter sub judice, where the
           defendant seeks to litigate multiple or prolix claims of
           counsel ineffectiveness, including non-record-based claims,

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J-S10035-19


           on post-verdict motions and direct appeal, we repose
           discretion in the trial courts to entertain such claims, but
           only if (1) there is good cause shown, and (2) the unitary
           review so indulged is preceded by the defendant’s knowing
           and express waiver of his entitlement to seek PCRA review
           from his conviction and sentence, including an express
           recognition that the waiver subjects further collateral review
           to the time and serial petition restrictions of the PCRA. In
           other words, we adopt a paradigm whereby unitary review
           may be available in such cases only to the extent that it
           advances (and exhausts) PCRA review in time; unlike the
           so-called Bomar exception, unitary review would not be
           made available as an accelerated, extra round of collateral
           attack as of right. … This exception follows from the
           suggestions of prior Court majorities respecting review of
           prolix claims, if accompanied by a waiver of PCRA review.

Commonwealth v. Holmes, 621 Pa. 595, 598-99, 79 A.3d 562, 563-64

(2013) (most internal citations omitted).       Absent these qualifications, an

appellate court will not entertain ineffective assistance of counsel claims for

the first time on direct appeal. Id.

      Instantly,   Appellant’s   pro   se   claims   of   prior   counsel’s   alleged

ineffectiveness were undeveloped before the trial court. Moreover, Appellant

did not make a knowing, intelligent, and voluntary waiver of PCRA review.

Thus, we decline to entertain his complaints on this direct appeal, as they are

better raised in a timely PCRA petition, where Appellant can clarify, refine, and

develop them for proper review. See id. Following our independent review

of the record, we conclude the appeal is wholly frivolous. See Palm, supra.

Accordingly, we affirm and grant counsel’s petition to withdraw.

      Judgment of sentence affirmed; counsel’s petition to withdraw is

granted.

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J-S10035-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/22/19




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                                                                                                 Circulated 02/26/2019 11:42 AM


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           FILED
              IN THE COURT OF COMMON PLEAS OF PHILADELPIDA COUNTY
      2018 KAY 29 �:
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                      3: 4ffIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                              TRIAL DIVISION - CRIMINAL SECTION
     OFFICE OF JUDICIAL RECORDS
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                        1 0T1 NR'CT
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          GFlPMM0N•W)B}\LTH OF PENNSYLVANIA                             CP-51-CR-0011724-2012


                                      v.

                          GARY CLANTON                                  SUPERIOR COURT

                                                       OPINION

          Byrd, J.


                  On June 30, 2014, Gary Clanton entered a negotiated guilty plea to third degree murder,

          conspiracy, and carrying a firearm without a license, and this court sentenced him to the negotiated

          term of twenty five (25) years to fifty (50) years incarceration. No post sentence motion was filed,

          nor did Clanton file a notice of appeal. Clanton filed a pro se petition under the Post Conviction

          Relief Act (PCRA) on March 4, 2015. On April 24, 2017 counsel filed an amended PCRA petition.

          This court issued an order granting Clanton's petition to reinstate his appellate rights nunc pro tune

          on February 16, 2018. Clanton filed a notice of appeal to the Superior Court on March 9, 2018.

          On March 14, 2018, this court ordered petitioner to file a statement of matters complained of on

          appeal. Appointed counsel filed a statement on March 20, 2018, but noted that he intended to file

          an Anders brief. Anders v, California, 386 U.S. 738 (1967).                .
                                                                            CP-51-CR-0011724-2012 C
                                                                                              Opinio;:"'m. v. Clanton, Gary




                                                                                llll/1111/II
                                                                                      8115453771
                                                                                                  I I
                                                                                             IIIll II I
              STATEMENT OF MATTERS COMPLAINED OF ON APPEAL

          Petitioner raised the following issue in his statement of matters complained of on appeal 1:

          1. Appellant's plea was not entered into knowingly, intelligently, and voluntarily,
          plea counsel coerced Appellant into taking a plea, and manifest injustice would
          occur if the plea were not vacated.
                                            DISCUSSION

          By entering into a negotiated guilty plea, defendant has waived "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." Commonwealth v. Eisenberg, 98 A.3d 1268,

1275 (Pa. 2014). Defendant cannot succeed on any of these grounds. His case was properly within

this court's jurisdiction as defendant committed these crimes in the city of Philadelphia. N.T.,

6/30/2014, at 20; Commonwealth v. Jones, 929 A.2d 205, 210(iti»'l)�Further, the sentence is

clearly legal because it is within statutory limits. Thus, defendant alleges that his plea was not

entered into knowingly, intelligently and voluntarily, and that he was coerced into taking the plea.

          In this case, two guilty plea colloquies were employed by this court, an oral colloquy and

a written colloquy. Clearly defendant was aware of the following: the nature of the charges; the

factual basis for his guilty plea; that he had an absolute right to a jury trial; that he was presumed

innocent until found guilty beyond a reasonable doubt; the permissible range of sentences on the

offenses charges, and the terms of the plea agreement. See Commonwealth v. Willis, 369 A.2d

1189 (Pa. 1977). Indeed, this court found as a fact that the guilty plea was entered knowingly,

intelligently and voluntarily. Further, defendant admitted his guilt to the charges under oath in

open court. Thus, petitioner is bound by his statements made during the guilty plea coUoquies and

may not now assert a claim that contradicts his in court admissions. Commonwealth v. Muhammad,

794 A.2d 378� 384 (Pa. Super. 2002).


I   The following is a verbatim account of petitioner's Statement

                                                           2
       After the prosecutor summarized the evidence, petitioner confirmed that it was accurate:

               THE COURT: Did you hear the summary just offered?

               THE DEFENDANT: Yes.

               THE COURT: Is that a fair account of what happened?

               THE DEFENDANT: Yes.

               THE COURT: Are those the facts you're pleading guilty to?

               THE DEFENDANT: Yes.

N.T., 6/30/2014, at 39-40.

       Furthermore, petitioner did not assert his innocence during the guilty plea colloquies. In

fact, he stated the following during his oral guilty plea colloquy:

               THE COURT: Are you pleading guilty because you are guilty?

               THE DEFENDANT: Yes.

Id at 40.

       Petitioner contends his guilty plea was coerced and not entered into willingly. However,

he also stated the following:

               THE COURT: Now, other than what's on this record, has anyone made you any

               promises or threats or forced you to enter into this plea?

               THE DEFENDANT: No.

               THE COURT: Is the agreement articulated the full bargain?

               THE DEFENDANT: Yes.

                THE COURT: Did you discuss this matter with your attorneys?

                THE DEFENDANT: Yes.

                THE COURT: Are you satisfied with those services?



                                                  3
                THE DEFENDANT: Yes.

                THE COURT: Is the plea you're entering done so of your own free will?

                THE DEFENDANT: Yes.

                THE COURT: Is this your decision made knowingly, intelligently and

                voluntarily?

                THE DEFENDANT: Yes.

Id. at 40-41.

        Accordingly, for the foregoing reasons the dismissal of the PCRA petition should be

AFFIRMED.




                                                          BY THE COURT:




                                               4
