J-S62004-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KYLE WALTER JONES
Appellant No. 449 MDA 2016
Appeal from the Judgment of Sentence March 2, 2016
in the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0004127-2015
BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED SEPTEMBER 28, 2016
Kyle Walter Jones (“Appellant”) appeals from the March 2, 2016
judgment of sentence entered in the Lancaster County Court of Common
Pleas following his guilty plea convictions for one count of burglary,1 one
count of conspiracy to commit burglary,2 two counts of robbery,3 one count
of conspiracy to commit robbery,4 two counts of unlawful restraint,5 one
____________________________________________
1
18 Pa.C.S. § 3502.
2
18 Pa.C.S. § 903.
3
18 Pa.C.S. § 3701.
4
18 Pa.C.S. § 903.
5
18 Pa.C.S. § 2902.
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count of unlawful restraint of a minor,6 and three counts of terroristic
threats.7 Appellant’s counsel has filed an Anders8 brief, together with a
petition to withdraw as counsel. We affirm the judgment of sentence and
grant counsel’s petition to withdraw.
On March 2, 2016, Appellant entered a negotiated guilty plea to the
above-referenced charges. On the same day, the trial court sentenced
Appellant pursuant to the negotiated plea to an aggregate sentence of 7 to
20 years’ incarceration.9 On March 4, 2016, Appellant filed a pro se post-
sentence motion for modification of the sentence imposed seeking to have
his sentenced reduced to an aggregate sentence of two to ten years’
incarceration. The trial court did not rule on Appellant’s motion. Instead,
the Prothonotary forwarded the motion to counsel on March 15, 2016, who
filed a notice of appeal on March 17, 2016 in lieu of litigating Appellant’s pro
____________________________________________
6
18 Pa.C.S. § 2902.
7
18 Pa.C.S. § 2706.
8
Anders v. California, 386 U.S. 738 (1967).
9
Specifically, Appellant received three to eight years’ incarceration on the
burglary conviction; three to eight years’ incarceration on the first robbery
conviction, to be served consecutively to the burglary conviction; one to four
years’ incarceration for the unlawful restraint of a minor conviction, to be
served consecutively to the burglary and robbery convictions; three to six
years’ concurrent incarceration on the second robbery conviction; two to
four years’ concurrent incarceration on the conspiracy to commit burglary
conviction; and six to twenty-four months’ concurrent incarceration for each
of the unlawful restraint convictions.
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se motion for modification. Counsel filed a Pa.R.A.P. 1925(b) statement of
matters complained of on appeal on April 6, 2016.10 The trial court filed its
Pa.R.A.P. 1925(a) Opinion on April 19, 2016. On May 25, 2016, counsel
filed the Anders brief together with a motion to withdraw as counsel with
this Court. Appellant filed no further submissions either pro se or through
privately-retained counsel.
As previously noted, Appellant’s counsel has filed an application
seeking to withdraw from representation pursuant to Anders v. California
and its Pennsylvania counterpart, Commonwealth v. Santiago.11 Before
addressing the merits of Appellant’s underlying issues presented, we must
first pass on counsel’s petition to withdraw. Commonwealth v. Goodwin,
928 A.2d 287, 290 (Pa.Super.2007) (en banc).
Prior to withdrawing as counsel on a direct appeal under Anders,
counsel must file a brief that meets the requirements established by our
Supreme Court in Santiago. The brief 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
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10
Counsel’s Pa.R.A.P. 1925 filing stated that Appellant had no issues of
arguable merit to raise on direct appeal. See Pa.R.A.P. 1925(c)(4).
11
978 A.2d 349 (Pa.2009).
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case law, and/or statutes on point that have led to the
conclusion that the appeal is frivolous.
Santiago, 978 A.2d at 361. Counsel must also provide the appellant with a
copy of the Anders brief, together with a letter that advises the appellant of
his or her right to “(1) retain new counsel to pursue the appeal; (2) proceed
pro se on appeal; or (3) raise any points that the appellant deems worthy of
the court’s attention in addition to the points raised by counsel in the
Anders brief.” Commonwealth v. Nischan, 928 A.2d 349, 353
(Pa.Super.2007). 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).
Instantly, counsel contemporaneously filed a petition to withdraw as
counsel with the Anders brief. The petition states counsel’s determination
that no non-frivolous appellate issues exist. See Petition to Withdraw As
Counsel, ¶ 1. Further, counsel’s letter to Appellant illustrates that counsel
notified Appellant of his withdrawal request, forwarded a copy of the brief to
Appellant, and explained Appellant’s right to proceed pro se or with new,
privately-retained counsel to raise any additional points or arguments that
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Appellant believed had merit.12 See Letter to Appellant, May 27, 2016.13 In
the Anders brief, counsel provides a summary of the facts and procedural
history of the case with citations to the record, refers to evidence of record
that might arguably support the issue raised on appeal, provides citations to
relevant case law, and states his conclusion that the appeal is wholly
frivolous and his reasons therefor. See Anders Brief, pp. 5-11.
Accordingly, counsel has substantially complied with the requirements of
Anders and Santiago.
As Appellant filed neither a pro se brief nor a counseled brief with new,
privately-retained counsel, we review this appeal based on the discussion
contained within the Anders brief, which relates to Appellant’s pro se
motion for modification.
____________________________________________
12
The proofs of service attached to the Anders brief and counsel’s Motion to
Withdraw indicated counsel served the Lancaster County District Attorney’s
Office with these documents, but not Appellant. Accordingly, on August 11,
2016, we ordered counsel to produce and file with this Court evidence of
service of the Anders brief and Motion to Withdraw upon Appellant. On
August 12, 2016, counsel filed Counsel’s Verification of Prior Service to
Appellant, verifying counsel had indeed mailed Appellant copies of the
Anders brief and Motion to Withdraw. We would have accepted counsel’s
assertion that he sent Appellant copies of these documents had he made
such an assertion in his original certificate of service. Therefore, we now
accept counsel’s verification, made as an officer of the Court, that he served
Appellant with copies of the Anders brief and Motion to Withdraw as
indicated in his May 27, 2016 letter.
13
In our August 11, 2016 judgment order, this Court improperly identified
counsel’s May 27, 2016 letter as counsel’s March 27, 2016 letter.
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Initially, because he was represented by counsel at the time he filed it,
Appellant’s post-sentence motion for modification was a nullity. See
Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa.Super.2007)
(describing counseled defendant’s pro se post-sentence motion as “a nullity,
having no legal effect.”). Additionally, Appellant waived any discretionary
aspects of sentence claim by entering into a negotiated guilty plea in this
matter. Generally, a plea of guilty constitutes a waiver of all defects and
defenses excepting the voluntariness of the plea, the jurisdiction of the court
and the legality of the sentence. Commonwealth v. Stewart, 867 A.2d
589, 591 (Pa.Super.2005). While this Court has ruled that an appellant may
challenge the discretionary aspects of sentence after pleading guilty without
an agreement to the terms of the sentence, appellants may not raise a
discretionary aspects of sentence claim regarding a negotiated sentence.
Id. As the trial court further explained:
[Appellant] would not have been entitled to any relief [on his
motion to modify sentence] because the length of [Appellant’s]
sentence was specifically agreed upon between the
Commonwealth and [Appellant] as part of his plea agreement.
...
In this case, this [c]ourt thoroughly reviewed the terms of
the plea agreement with [Appellant]. The charges [Appellant]
was pleading guilty to and the sentence he would be receiving
were clearly and unambiguously stated on the plea agreement
form [Appellant] signed. Moreover, [Appellant] acknowledged
on the record that he understood the terms of his plea. Because
[Appellant’s] plea contained a negotiated term of confinement,
this [c]ourt did not have authority to later modify that sentence,
absent consent from the Commonwealth. The Commonwealth
clearly did not consent to a reduction in [Appellant’s] sentence.
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Consequently, reducing [Appellant’s] sentence would have
impermissibly deprived the Commonwealth of the full benefit of
the agreement it reached with [Appellant] and would have
allowed [Appellant], in turn, to receive a windfall. Therefore,
even if [Appellant] had properly filed a counseled post-sentence
motion, his request to modify sentence would have been
unsuccessful.
Trial Court Pa.R.A.P. 1925(a) Opinion, filed April 19, 2016, p. 4.
We agree with counsel that Appellant’s claim is wholly frivolous.
Moreover, our independent review of the record has revealed no other
preserved issues of arguable merit. Accordingly, we affirm the judgment of
sentence.
Judgment of sentence affirmed. Counsel’s petition to withdraw
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/28/2016
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Com. v. Jones, K.
Combined Opinion