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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
PABLO ARMANDO VALENZUELA
Appellant No. 598 MDA 2016
Appeal from the Judgment of Sentence March 22, 2016
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0001612-2015
BEFORE: BOWES, LAZARUS AND MUSMANNO, JJ.
MEMORANDUM BY BOWES, J.: FILED MAY 10, 2017
Pablo Valenzuela appeals from the judgment of sentence of thirty-
eight to seventy-six months imprisonment imposed following his guilty plea
to robbery of a motor vehicle, robbery with threat of serious bodily injury,
and burglary. Appellant received a sentence of twelve to twenty-four
months at robbery of a motor vehicle, twenty-two to forty-four months at
robbery–threat of serious bodily injury, and two to four months at the
burglary charge. Counsel has filed a petition to withdraw from
representation pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We grant the
petition and affirm.
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The following facts were set forth at the guilty plea hearing. On
February 1, 2015, Appellant and an unspecified number of other individuals
followed Melissa Phillips after she closed an Applebee’s restaurant in West
Hazelton for the evening. While she was driving, a black Accura forced her
to stop. Two persons excited the Accura, entered her car, and forced her to
drive back to the restaurant with the Accura following. The group forced Ms.
Phillips to reopen the restaurant, where she was able to activate a silent
alarm. Police responded and the black Accura fled the scene; the police
officers followed this car.1 Appellant, who had remained in the restaurant
with Ms. Phillips, was able to flee during the confusion. He kidnapped the
victim, forced her into her vehicle, and left the scene. He was later
apprehended.
Based on the foregoing, Appellant was charged with eight separate
counts, five of which were withdrawn in exchange for Appellant’s plea.2 The
trial court accepted the plea and ordered a pre-sentence report. On March
22, 2016, Appellant received the aforementioned sentence.
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1
The transcript indicates that the vehicle was later stopped by a
Pennsylvania State Police Trooper.
2
We note that Appellant pleaded guilty at the same proceeding to charges
at a separate docket. He received a sentence of six to twelve months, which
was set consecutive to the instant sentence, resulting in an aggregate
sentence of forty-two to eighty-four months. The Anders brief includes the
sentence imposed at the other docket. Appellant’s brief at 6. However,
Appellant did not file an appeal at the other case.
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Counseled post-sentence motions were not filed. Appellant, however,
simultaneously filed a pro se post-sentence motion seeking reduction of his
sentence and a pro se notice of appeal. These documents were accepted for
filing instead of being forwarded to counsel. Thereafter, counsel filed a
timely notice of appeal on Appellant’s behalf. In lieu of a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal, counsel filed a statement of
intent to file an Anders brief. Pa.R.A.P. 1925(c)(4).
Appellant’s counsel thereafter filed a petition to withdraw with an
accompanying Anders brief, which sets forth one issue as arguably
supporting an appeal: Whether the trial court abused its discretion in
imposing consecutive sentences at all charges.
We do not address the merits of this issue without first reviewing the
petition seeking withdrawal. Commonwealth v. Cartrette, 83 A.3d 1030
(Pa.Super. 2013) (en banc). Counsel must satisfy the following three
procedural requirements: 1) file a petition for leave to withdraw and state
that, after making a conscientious examination of the record, counsel has
concluded that the appeal is frivolous; 2) provide a copy of the Anders brief
to the defendant; and 3) inform the defendant that he has the right to retain
private counsel or raise, pro se, additional arguments that the defendant
deems worthy of the court's attention. Id. Counsel has filed a petition to
withdraw which complies with these requirements, and Appellant was
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provided a copy of the brief and informed of his rights. We thus find that
counsel has complied with the procedural requirements of Anders.
We next examine whether the brief meets the substantive
requirements of Santiago, supra, which states that the Anders 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
case law, and/or statutes on point that have led to the
conclusion that the appeal is frivolous.
Santiago, supra at 361.
The brief sets forth the procedural history and facts, with citations to
the record. Counsel has also identified an issue tending to support the
appeal, but nevertheless concludes that the appeal is frivolous with citations
to and discussions of case law that led to counsel’s conclusion that no relief
is due. Hence, we find that counsel has complied with Anders/Santiago.3
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3
We note that the brief refers only to the issue Appellant wished to raise.
Appellant’s brief at 7. “The universe of potential claims is not limited to
those claims and testimony that counsel's unschooled client believes the
court should consider.” Commonwealth v. Santiago, 978 A.2d 349, 360
(Pa. 2009). However, the remaining portions of the brief indicates that
counsel, who represented Appellant during these proceedings, reviewed the
transcripts of both proceedings and determined that there were no additional
issues to be raised due to the fact Appellant tendered a guilty plea which
limited the number of claims that could be raised on appeal. We are
therefore satisfied that counsel discharged her responsibility to review the
entire record.
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We examine the sole issue identified, which attacks the discretionary
aspects of Appellant’s sentence. As the brief recognizes, there is no
absolute right to appeal this kind of sentencing claim. We determine
whether Appellant has invoked this Court's jurisdiction by examining the
following four criteria:
(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
[complies with] 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).
Commonwealth v. McLaine, 150 A.3d 70, 76 (Pa.Super. 2016) (citing
Commonwealth v. Samuel, 102 A.3d 1001, 1006–07 (Pa.Super. 2014)).
Finding that the claim was not preserved, we conclude that this Court
lacks jurisdiction to address the claim. The concise statement of matters
complained of on appeal maintained that the pro se notice of appeal divested
the trial court of jurisdiction to entertain any post-sentence motion, even if
timely preserved. Nevertheless, the Anders brief identified the substantial
question requirement as the impediment to Appellant’s prospects for
appellate relief.
We find that Appellant failed to preserve the discretionary sentencing
claim for the following reasons. A pro se motion generally has no legal
effect, due to hybrid representation principles. See Commonwealth v.
Nischan, 928 A.2d 349, 355 (Pa.Super. 2007) (“[H]is pro se post-sentence
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motion was a nullity, having no legal effect.”). Thus, Appellant’s pro se
motion was a legal nullity, and the sentencing claim was not presented to
the trial court. “Issues not presented to the sentencing court are waived
and cannot be raised for the first time on appeal.” Commonwealth v.
Malovich, 903 A.2d 1247, 1251 (Pa.Super. 2006). Since the issue was not
before the trial court, we lack jurisdiction to entertain this discretionary-
aspects-of-sentencing claim.
We have conducted an independent review of the record, as required
by Commonwealth v. Flowers, 113 A.3d 1246 (Pa.Super. 2015). We
concur with counsel’s assessment that this appeal is wholly frivolous, and
that there are no preserved non-frivolous issues, as the entry of a guilty plea
severely limits the grounds that may be raised on appeal. “[U]pon entry of
a guilty plea, a defendant waives all claims and defenses other than those
sounding in the jurisdiction of the court, the validity of the plea, and what
has been termed the ‘legality’ of the sentence imposed.” Commonwealth
v. Eisenberg, 98 A.3d 1268, 1275 (Pa. 2014). Thus, we conclude that
counsel may withdraw.
Petition of Mary V. Deady, Esquire, to withdraw as counsel is granted.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/10/2017
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