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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANDRE D. FULLER
Appellant No. 1999 MDA 2014
Appeal from the Judgment of Sentence July 28, 2014
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0003235-2013
BEFORE: GANTMAN, P.J., OLSON, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED NOVEMBER 06, 2015
Appellant, Andre D. Fuller, appeals from the judgment of sentence
entered in the Luzerne County Court of Common Pleas, following his guilty
plea to criminal attempt—criminal homicide.1 We affirm and grant counsel’s
petition to withdraw.
The relevant facts and procedural history of this case are as follows.
On August 3, 2013, at approximately 10:50 p.m., Officer Dudick was on
patrol in Wilkes-Barre when he heard multiple gunshots. Officer Dudick
reported the shots and traveled to the location where an off-duty police
officer reported a black male in a white long sleeve t-shirt running from the
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1
18 Pa.C.S.A. § 2501(a) (901(a) related).
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*Retired Senior Judge assigned to the Superior Court.
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area. Upon arriving at the shooting scene, Officer Dudick observed the
victim, William Uggiano, lying on the street with gunshot wounds to his
head, hand, leg, and buttocks. The victim was conscious and told the police
he did not know the name of the shooter but had seen him around town.
The victim was transported to the hospital, and the police recovered several
.45 caliber shell casings where the victim had been found. After receiving
information from the victim’s mother regarding the shooter’s identity, the
police showed the victim a photo array. The victim positively identified
Appellant as the shooter.
Appellant entered a negotiated guilty plea on July 28, 2014, to criminal
attempt—criminal homicide. That same day, the court imposed the
negotiated sentence of six (6) to twelve (12) years’ imprisonment. While
still represented by counsel, Appellant filed a notice of appeal pro se on
August 25, 2014, under the Prisoner Mailbox Rule. The court subsequently
conducted a Grazier2 hearing on January 6, 2015, after which the court
appointed new counsel and granted an extension of time to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
On January 30, 2015, counsel filed a notice of intent to file an Anders brief.
Thereafter, counsel filed a petition for leave to withdraw in this Court on May
21, 2015.
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2
Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998).
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As a preliminarily matter, counsel seeks to withdraw her
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 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:
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Neither Anders nor McClendon[3] 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.
* * *
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, counsel filed a petition to withdraw. The petition states
counsel conducted a conscientious review of the record and determined the
appeal is wholly frivolous. Counsel also supplied Appellant with a copy of
the brief and a letter explaining Appellant’s right to retain new counsel or to
proceed pro se to raise any additional issues Appellant deems worthy of this
Court’s attention. (See Letter to Appellant, dated 5/21/15, attached to
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3
Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).
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Petition for Leave to Withdraw as Counsel.) In the Anders brief, counsel
provides a summary of the facts and procedural history of the case.
Counsel’s argument refers to relevant law that might arguably support
Appellant’s issues. Counsel further states the reasons for her conclusion
that the appeal is wholly frivolous. Therefore, counsel has substantially
complied with the requirements of Anders and Santiago.
Counsel raises the following issues in the Anders brief:
WHETHER THE TRIAL COURT LACKED STATUTORY
AUTHORITY FOR THE SENTENCE IMPOSED?
WHETHER THE SENTENCE OF A MINIMUM OF SIX YEARS
TO A MAXIMUM OF TWELVE YEARS[’] INCARCERATION IS
HARSH AND EXCESSIVE?
(Anders Brief at 1-2). Appellant filed a pro se supplemental brief and raises
the following issues:
DID THE TRIAL [COURT] HAVE AUTHORITY TO ACCEPT
THE PLEA AGREEMENT?
WAS THE JUDGMENT OF SENTENCE LAWFUL?
IF A[N] ORALLY PRONOUNCED SENTENCE IS NOT
INCORPORATED WITHIN THE JUDGEMENT OF SENTENCE
ORDER IS THAT SENTENCE ILLEGAL?
IF THE JUDGEMENT OF SENTENCE ORDER POSSES[SES]
NO STATUTORY AUTHORIZATION IS THAT DOCUMENT
INVALID?
WAS THERE A PRELIMINARY HEARING OF RECORD?
WAS THERE A LAWFUL ARREST?
(Appellant’s Supplemental Brief at 1).
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On appeal, Appellant’s pro se supplemental brief and counsel’s Anders
brief essentially raise the same arguments. Appellant and counsel allege the
sentence of six to twelve years’ imprisonment is excessive and illegal.4
Appellant and counsel contend the court lacked statutory authority to accept
Appellant’s guilty plea and impose his sentence. Appellant concludes this
Court should vacate and remand for resentencing. Appellant’s claims
challenge, in part, the discretionary aspects of sentencing. See
Commonwealth v. Lutes, 793 A.2d 949 (Pa.Super. 2002) (stating claim
that sentence is manifestly excessive challenges discretionary aspects of
sentencing).
“[W]here a defendant pleads guilty pursuant to a plea agreement
specifying particular penalties, the defendant may not seek a discretionary
appeal relating to those agreed-upon penalties.” Commonwealth v.
Brown, 982 A.2d 1017, 1019 (Pa.Super. 2009) (citing Commonwealth v.
Dalberto, 648 A.2d 16, 20 (1994)). “Permitting a defendant to petition for
such an appeal would undermine the integrity of the plea negotiation
process and could ultimately deprive the Commonwealth of sentencing
particulars for which it bargained.” Id. (citing Dalberto, supra at 18).
Moreover, “[a] person commits an attempt when, with intent to
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4
As a general rule, the “entry of a guilty plea constitutes a waiver of all
defects and defenses except lack of jurisdiction, invalidity of the plea, and
illegality of the sentence.” See Commonwealth v. Main, 6 A.3d 1026,
1028 (Pa.Super. 2010).
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commit a specific crime, he does any act which constitutes a substantial step
toward the commission of that crime.” 18 Pa.C.S.A. § 901(a). Section 2501
of the Pennsylvania Consolidated Statutes further provides:
§ 2501. Criminal homicide
(a) Offense defined.—A person is guilty of criminal
homicide if he intentionally, knowingly, recklessly or
negligently causes the death of another human being.
(b) Classification.—Criminal homicide shall be classified
as murder, voluntary manslaughter, or involuntary
manslaughter.
18 Pa.C.S.A. § 2501(a)-(b). Criminal attempt is a crime “of the same grade
and degree as the most serious offense which is attempted….” 18 Pa.C.S.A.
§ 905(a). Third-degree murder and voluntary manslaughter are graded as
first-degree felonies. See 18 Pa.C.S.A. §§ 2502(c), 2503(c). An individual
convicted of a first-degree felony may be sentenced to “a term which shall
be fixed by the court at not more than 20 years.” 18 Pa.C.S.A. § 1103(1).
Here, Appellant has no grounds to challenge his sentence. Appellant’s
plea agreement included a negotiated sentence of six to twelve years’
imprisonment in exchange for the Commonwealth dropping the numerous
remaining charges. Therefore, Appellant’s negotiated plea agreement
precludes him from challenging the discretionary aspects of his sentence.
See Brown, supra. Furthermore, criminal attempt—criminal homicide is a
first-degree felony and carries a maximum penalty of twenty years’
imprisonment. See 18 Pa.C.S.A. §§ 905(a), 2502(c), 2503(c), and 1103(1).
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The court sentenced Appellant to six to twelve years’ imprisonment, which is
below the statutory maximum. Thus, Appellant’s sentence was not illegal,
and the court had authority to impose the sentence. Accordingly, we affirm
the judgment of sentence and grant counsel’s petition to withdraw.
Judgment of sentence affirmed; counsel’s petition to withdraw is
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/6/2015
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