J-S79041-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
WARREN W. RAY, JR., :
:
Appellant : No. 2076 EDA 2014
Appeal from the Judgment of Sentence Entered June 16, 2014
in the Court of Common Pleas of Delaware County,
Criminal Division, at No(s): CP-23-CR-0002833-2014
BEFORE: ALLEN, OLSON, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 05, 2015
Warren W. Ray, Jr. (Appellant), appeals from the judgment of
sentence which followed his conviction for possession with the intent to
deliver a controlled substance - heroin. Also before us is the petition of
Appellant’s counsel to withdraw pursuant to Anders v. California, 386 U.S.
738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
We affirm the judgment of sentence and grant the petition to withdraw.
The background underlying this matter can be summarized as follows.
Appellant was arrested and charged with, inter alia, possession with the
intent to deliver heroin. He entered into a negotiated guilty plea to this
charge; that negotiated plea included an agreement that Appellant would be
sentenced to one to two years in prison. The trial court accepted the plea
and sentenced Appellant accordingly.
*Retired Senior Judge assigned to the Superior Court.
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Appellant timely filed a notice of appeal, and the trial court directed
him to comply with Pa.R.A.P. 1925(b). Appellant’s counsel filed a statement
pursuant to Pa.R.A.P. 1925(c)(4), stating that counsel intended to withdraw
his representation of Appellant.
Counsel then filed with this Court a petition to withdraw and an
Anders brief. Thus, before we consider the substance of this appeal, we
must address counsel’s compliance with Anders:
Direct appeal counsel seeking to withdraw under Anders must
file a petition averring that, after a conscientious examination of
the record, counsel finds the appeal to be wholly frivolous.
Counsel must also file an Anders brief setting forth issues that
might arguably support the appeal along with any other issues
necessary for the effective appellate presentation thereof….
Anders counsel must also provide a copy of the Anders
petition and brief to the appellant, advising the appellant of the
right to retain new counsel, proceed pro se or raise any
additional points worthy of this Court’s attention.
If counsel does not fulfill the aforesaid technical
requirements of Anders, this Court will deny the petition to
withdraw and remand the case with appropriate instructions
(e.g., directing counsel either to comply with Anders or file an
advocate’s brief on Appellant's behalf). By contrast, if counsel’s
petition and brief satisfy Anders, we will then undertake our
own review of the appeal to determine if it is wholly frivolous. If
the appeal is frivolous, we will grant the withdrawal petition and
affirm the judgment of sentence. However, if there are non-
frivolous issues, we will deny the petition and remand for the
filing of an advocate’s brief.
Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)
(citations omitted). Our Supreme Court has expounded further upon the
requirements of Anders:
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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.
Santiago, 978 A.2d at 361.
Based upon our examination of counsel’s petition to withdraw and
Anders brief, we conclude that counsel has substantially complied with the
above requirements.1 “We, therefore, turn to the issue presented in
counsel’s Anders brief to make an independent judgment as to whether the
appeal is, in fact, wholly frivolous.” Commonwealth v. Martuscelli, 54
A.3d 940, 947 (Pa. Super. 2012).
Counsel essentially contends that a challenge to the discretionary
aspects of Appellant’s sentence is the only issue that arguably supports this
appeal. However, Appellant was sentenced pursuant to a negotiated plea
agreement. This Court has long recognized that the entry of a negotiated
guilty plea “constitutes a waiver of all nonjurisdictional defects and defenses.
When a defendant pleads guilty, he waives the right to challenge anything
but the legality of his sentence and the validity of his plea.”
Commonwealth v. Jones, 929 A.2d 205, 212 (Pa. 2007). Further, “[o]ne
1
Appellant has not filed a pro se response raising any additional points for
our consideration.
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who pleads guilty and receives a negotiated sentence may not then seek
discretionary review of that sentence.” Commonwealth v. O'Malley, 957
A.2d 1265, 1267 (Pa. Super. 2008). Thus, any challenge to the
discretionary aspects of Appellant’s sentence is wholly frivolous.
Because we agree with counsel that Appellant’s appeal is wholly
frivolous, we grant counsel’s petition to withdraw and affirm Appellant’s
judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/5/2015
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