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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
DAVID ALONSO CORADO, : No. 1635 MDA 2015
:
Appellant :
Appeal from the Judgment of Sentence September 21, 2015,
in the Court of Common Pleas of Lancaster County
Criminal Division at Nos. CP-36-CR-0002897-2012,
CP-36-CR-0002902-2012
BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., AND STEVENS, P.J.E.*
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 25, 2016
David Alonso Corado appeals from the judgment of sentence of
September 21, 2015, following his guilty plea to drug and firearms charges.
Appointed counsel, Christopher P. Lyden, Esq., has filed a petition to
withdraw and accompanying Anders brief.1 After careful review, we grant
the withdrawal petition and affirm the judgment of sentence.
On May 31, 2013, appellant entered a negotiated guilty plea to one
count each of possession with intent to deliver (“PWID”), delivery of a
controlled substance (heroin), possession of drug paraphernalia, criminal use
* Former Justice specially assigned to the Superior Court.
1
See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).
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of a communication facility, and carrying a firearm without a license. The
trial court imposed the negotiated sentence of 5-10 years, which included a
5-year mandatory minimum sentence pursuant to 18 Pa.C.S.A. § 9712.1
(drug offenses committed with firearms). Appellant did not file
post-sentence motions or take a direct appeal; however, on April 9, 2014,
he filed a pro se motion for modification of sentence nunc pro tunc, which
was denied on April 14, 2014. Appellant filed a pro se notice of appeal on
April 30, 2014, followed by a pro se PCRA2 petition on May 30, 2014.
Counsel was appointed to represent appellant in the PCRA proceedings.
On June 6, 2014, appellant withdrew his appeal. On June 18, 2015,
the Commonwealth filed a response to appellant’s PCRA petition, conceding
that his sentence was illegal.3 On July 17, 2015, the PCRA court granted
appellant’s petition and scheduled a resentencing hearing for September 21,
2015. On that date, appellant was resentenced to an aggregate of
4-8 years’ incarceration followed by 2 years of probation. A timely notice of
appeal was filed on September 22, 2015. On September 23, 2015, appellant
was ordered to file a concise statement of errors complained of on appeal
within 21 days pursuant to Pa.R.A.P. 1925(b); appellant complied on
2
Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
3
In Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc),
appeal denied, 121 A.3d 496 (Pa. 2015), we found Section 9712.1
unconstitutional in light of Alleyne v. United States, U.S. , 133
S.Ct. 2151 (2013), which held that any fact that served to aggravate the
minimum sentence must be found by a jury beyond a reasonable doubt.
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September 29, 2015, by filing a statement of intent to file an
Anders/McClendon brief in lieu of filing a statement in accordance with
Rule 1925(c)(4). (Docket #43.) The only potential issue identified for
appeal was whether the trial court imposed an illegal sentence. (Id.) On
November 3, 2015, the trial court filed a Rule 1925(a) opinion. (Docket
#46.)
Counsel having filed a petition to withdraw, we reiterate that “[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. 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;
(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
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statutes on point that have led to the
conclusion that the appeal is frivolous.
Daniels, 999 A.2d at 593, quoting Commonwealth v. Santiago, 978 A.2d
349, 361 (Pa. 2009).
Upon review, we find that Attorney Lyden has complied with all of the
above requirements.4 In addition, Attorney Lyden served appellant a copy
of the Anders brief, and advised him of his right to proceed pro se or hire a
private attorney to raise any additional points he deemed worthy of this
court’s review. Appellant has not responded to counsel’s petition to
withdraw. As we find the requirements of Anders and Santiago are met,
we will proceed to the issues on appeal.
First, we observe that appellant entered a negotiated guilty plea.
When he entered the plea, he agreed to waive all non-jurisdictional defects
and defenses.
“A plea of guilty 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.
Montgomery, 485 Pa. 110, 401 A.2d 318, 319
(1979) (internal citations omitted); see
4
Initially, Attorney Lyden failed to comply with Anders/Santiago. He failed
to file a petition to withdraw or a letter to appellant with instructions
pursuant to Anders. On February 5, 2016, this court ordered that
Attorney Lyden’s brief be stricken and that on or before March 11, 2016, he
file an advocate’s brief on behalf of appellant or a petition to withdraw and
brief following the dictates of Anders, McClendon, and Santiago.
Attorney Lyden complied on February 11, 2016, filing a petition to withdraw,
including the letter to appellant setting forth his rights under Anders, and a
proper Anders brief.
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Commonwealth v. Irby, 445 Pa. 248, 284 A.2d
738, 739 (1971) (“[I]t is settled law that all
procedural and non-jurisdictional defects and
defenses not previously raised were waived when he
pleaded to the indictment.”).
Commonwealth v. Jones, 929 A.2d 205, 212 (Pa. 2007). Furthermore,
appellant may not challenge the discretionary aspects of the sentence,
where the terms of the sentence were made part of the negotiated plea.
Commonwealth v. Baney, 860 A.2d 127, 131 (Pa.Super. 2004), appeal
denied, 877 A.2d 459 (Pa. 2005).
Here, appellant negotiated a sentence of 5 to 10 years, which was
reduced to 4 to 8 years following Alleyne. Appellant’s sentence was within
the guidelines and was not illegal.
Attorney Lyden states that appellant’s guilty plea colloquy was
deficient in several respects, e.g., the trial court did not determine that
appellant understood he had the right to a jury trial and that he was
presumed innocent until proven guilty. (Anders brief at 10.) However,
appellant did not object to these alleged defects during the plea proceedings,
nor did he file post-sentence motions. (Id.) Therefore, any argument that
the plea colloquy was defective and appellant’s plea was invalid would have
to be raised on collateral review in the context of trial counsel
ineffectiveness. See Commonwealth v. D’Collanfield, 805 A.2d 1244,
1246 (Pa.Super. 2002) (appellant’s argument that there was an insufficient
factual basis for the plea was not properly preserved for appeal because trial
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counsel failed to preserve the issue by objecting at the sentencing colloquy
or otherwise raising the issue at the sentencing hearing or through a
post-sentence motion), citing Pa.R.Crim.P. 720(B), and Commonwealth v.
Archer, 722 A.2d 203, 209 (Pa.Super. 1998) (issues not preserved on
appeal are waived); Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002)
(defendants should wait until the collateral review phase to raise claims of
ineffective assistance of counsel); Commonwealth v. Holmes, 79 A.3d 562
(Pa. 2013) (reaffirming Grant and holding that, absent specific
circumstances not applicable here, claims of ineffective assistance of counsel
are to be deferred to PCRA review).
For the reasons discussed above, we determine that appellant’s issues
on appeal are wholly frivolous and without merit. Furthermore, after our
own independent review of the record, we are unable to discern any
additional issues of arguable merit. Therefore, we will grant
Attorney Lyden’s petition to withdraw and affirm the judgment of sentence.
Petition to withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/25/2016
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