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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JEFFERY L. PATTON, : No. 1227 EDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, March 19, 2014,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0012416-2011
BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OTT, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 10, 2015
Appellant, Jeffery L. Patton, appeals from the judgment of sentence
imposed on March 19, 2014. Appellant’s counsel has filed an Anders1 brief
together with a petition to withdraw as counsel; appellant has filed a pro se
response to the Anders brief. We grant counsel’s petition and affirm.
A review of the record reveals the following facts and procedural
history. Appellant accosted the victim in the dark, thrust a taser within
inches of his face, and threatened to use it unless the victim gave him
money. Appellant took the victim’s money and then threatened to hurt his
family if the crime was reported. Following his arrest, an omnibus motion
1
Anders v. California, 386 U.S. 738 (1967).
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was filed challenging identification evidence and claiming appellant’s arrest
was illegal; the omnibus motion was never addressed. (Docket #1.)
Appellant proceeded to a bench trial before the Honorable Angela J.
Foglietta and was convicted of robbery, use of an incapacitation device,
theft, simple assault, terroristic threats, recklessly endangering another
person, and possessing an instrument of crime. Appellant filed a notice of
appeal, and a panel of this court affirmed his convictions but vacated and
remanded for resentencing as the trial court failed to merge his convictions
for theft, simple assault, and REAP with his robbery conviction. On
March 19, 2014, Judge Foglietta resentenced appellant to concurrent terms
of three to six years’ incarceration for robbery and use of an incapacitation
device, to be followed by three years of probation on the non-merged
offenses. On April 21, 2014, appellant filed an untimely pro se motion for
reconsideration of sentence.2 (Docket #10.)
On April 21, 2014, defense counsel filed a timely notice of appeal. The
trial court issued an order to file a concise statement of errors complained of
on appeal pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A. On July 22,
2014, counsel filed a statement of intent to file an Anders brief pursuant to
Rule 1925(c)(4). The trial court filed a Rule 1925(a) opinion on July 29,
2014, addressing the discretionary aspects of appellant’s sentence.
2
Pennsylvania Rule of Criminal Procedure 720 allows ten days for the filing
of a post-trial motion.
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Thereafter, on September 4, 2014, counsel filed an Anders brief and an
application to withdraw as counsel. The sole issue presented for our review
is a challenge to the discretionary aspects of his sentence. (Appellant’s brief
at 2.) The Commonwealth filed its brief on December 1, 2014. On
January 20, 2015, appellant filed his pro se “Answer to Application to
Withdraw as Counsel (Petition to Challenge Petition to Withdraw),”
essentially challenging the Anders brief filed by counsel and stating there
remains a “non-frivolous” issue concerning a motion to suppress his
identification which his attorney did not present to the trial court.
As noted above, appellant’s counsel, Jeffrey P. Shender, Esq., has filed
a petition to withdraw and accompanying Anders brief. “When 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. Daniels, 999 A.2d 590, 593 (Pa.Super. 2010), citing Commonwealth v.
Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007) (en banc) (citation
omitted).
In order for counsel to withdraw from an appeal
pursuant to Anders, certain requirements must be
met, and 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;
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(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., quoting Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
Our review of Attorney Shender’s application to withdraw, supporting
documentation, and Anders brief reveals that he has complied with all of
the foregoing requirements. We note that counsel also furnished a copy of
the brief to appellant, advised him of his right to retain new counsel,
proceed pro se, or raise any additional points that he deems worthy of this
court’s attention, and attached to the Anders petition a copy of the letter
sent to appellant as required under Commonwealth v. Millisock, 873 A.2d
748, 751 (Pa.Super. 2005). See Daniels, 999 A.2d at 594 (“While the
Supreme Court in Santiago set forth the new requirements for an Anders
brief, which are quoted above, the holding did not abrogate the notice
requirements set forth in Millisock that remain binding legal precedent.”).
As Attorney Shender has complied with all of the requirements set forth
above, we now turn to any issues counsel states arguably support the
appeal.
Again, the issue herein presents a challenge to the discretionary
aspects of appellant’s sentence. “Challenges to the discretionary aspects of
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sentencing do not entitle a petitioner to review as of right.”
Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa.Super. 2011). Before
this court can address such a discretionary challenge, an appellant must
comply with the following requirements:
An appellant challenging the discretionary aspects of
his sentence must invoke this Court’s jurisdiction by
satisfying a four-part test: (1) whether 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 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).
Id.
Our review of the record reveals that appellant did not object at the
sentencing hearing on March 19, 2014, or file a motion for reconsideration of
sentence.3 Thus, it is clear appellant first raised his challenge to the
discretionary aspects of the sentence in his appellate brief. As such, the
issue is waived. Pa.R.A.P. 302(a) (issues not raised in the lower court are
waived and cannot be raised for the first time on appeal).
3
Appellant did file a pro se post-sentence motion. However, that motion
failed to preserve his discretionary sentencing claim for two reasons. First,
the motion was untimely filed. Second, appellant had no right to file a
pro se motion because he was represented by counsel; his pro se
post-sentence motion was a nullity, having no legal effect. Commonwealth
v. Nischan, 928 A.2d 349, 355 (Pa.Super. 2007).
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Having determined that the instant appeal is wholly frivolous, and
after our own independent review, there are no issues of arguable merit
apparent from the record; we will grant Attorney Shender’s petition to
withdraw. We now consider the issues raised in appellant’s pro se
response.
Appellant appears to argue that trial counsel was ineffective for failing
to litigate a motion to suppress challenging his identification. This claim
must be deferred until collateral review. Commonwealth v. Barnett, 25
A.3d 371, 377 (Pa.Super. 2011) (en banc) (holding that this court cannot
review ineffective assistance of counsel claims on direct appeal absent
defendant’s waiver of PCRA review). As this court recently explained:
In Commonwealth v. Grant, 572 Pa. 48, 813
A.2d 726 (2002), our Supreme Court announced a
general rule providing a defendant “should wait to
raise claims of ineffective assistance of trial counsel
until collateral review” pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-
9546. Grant, at 738. Nevertheless, in
Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d
831 (2003), reargument denied, July 17, 2003,
cert. denied, Bomar v. Pennsylvania, 540 U.S.
1115, 124 S.Ct. 1053, 157 L.Ed.2d 906 (2004), our
Supreme Court recognized an exception to Grant
and found that where ineffectiveness claims had
been raised in the trial court, a hearing devoted to
the question of ineffectiveness was held at which
trial counsel testified, and the trial court ruled on the
claims, a review of an ineffectiveness claim was
permissible on direct appeal. See Bomar, 826 A.2d
at 853-854; See also Commonwealth v. Fowler,
893 A.2d 758, 763-764 (Pa.Super.2006);
Commonwealth v. Wright, 599 Pa. 270, 319-320,
961 A.2d 119, 148 (2008).
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....
However, most recently, in [Barnett, supra at
376-378] this Court concluded our Supreme Court
has limited the applicability of Bomar and that
Barnett’s assertions of counsel’s effectiveness are
appropriately raised only on collateral review. We
ultimately determined that “[w]ith the proviso that a
defendant may waive further PCRA review in the trial
court, absent further instruction from our Supreme
Court, this Court, pursuant to Wright and Liston,
will no longer consider ineffective assistance of
counsel claims on direct appeal.” Id. at 377. As
such, we dismiss Appellant’s first issue without
prejudice to her ability to raise it in a subsequent
PCRA petition, if she so chooses.
Commonwealth v. Quel, 27 A.3d 1033, 1036-1037 (Pa.Super. 2011)
(footnote omitted).4
Herein, there is no indication in the record that appellant made an
express waiver of PCRA review. Accordingly, we are unable to reach the
merit of this issue on direct appeal. Thus, we dismiss this claim without
prejudice to appellant’s right to present it in a subsequent PCRA petition.
Furthermore, this underlying issue cannot be raised in this appeal as only
resentencing was the subject of this appeal.
4
Recently, in Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), decided
October 30, 2013, our supreme court addressed the continued viability and
limited scope of the Bomar exception. The exceptions discussed in Holmes
do not apply to the facts in this case.
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Judgment of sentence affirmed. Counsel’s application to withdraw is
granted. Appellant’s pro se “Answer to Application to Withdraw as Counsel
(Petition to Challenge Petition to Withdraw)” is denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/10/2015
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