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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 SCOTT RICE :
:
Appellant : No. 112 MDA 2017
Appeal from the Judgment of Sentence May 3, 2013
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0003324-2011
BEFORE: BOWES, OLSON, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JULY 19, 2017
Appellant, David Scott Rice, appeals nunc pro tunc from the judgment
of sentence entered in the Court of Common Pleas of Lancaster County
following his guilty plea to 105 counts of possession of child pornography, 18
Pa.C.S.A. §§ 6312(d)(1). In addition to this appeal, appellate counsel has
filed a petition seeking to withdraw his representation and a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 602 Pa. 159, 978 A.2d 349 (2009). After a careful review, we
grant counsel’s petition to withdraw and affirm Appellant’s judgment of
sentence.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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The relevant facts and procedural history have been previously set
forth by this Court, in part, as follows:
On May 3, 2013, [Appellant] pled guilty on docket number
3324-2011 to 105 counts of Possession of Child Pornography1 in
violation of 18 Pa.C.S. § 6312(d)(1).2 Pursuant to a negotiated
plea agreement, [Appellant] was sentenced to the following: five
to ten years’ incarceration for each of counts one and two, to be
served consecutively; two and a half to five years’ incarceration
for count three, to be served consecutively to count two; five to
ten years’ incarceration for counts four through 105, to be
served concurrently with count one. Accordingly, [Appellant’s]
total aggregate sentence was twelve and a half to twenty five
years’ incarceration. [Appellant was given 676 days of credit for
time served.] At the time of the plea, [Appellant] was
represented by Attorney Samuel Encarnacion. [No direct appeal
was filed.]
[On September 13, 2013, Appellant filed a pro se petition
seeking credit for additional time served, to which the
Commonwealth responded that the additional time for which
Appellant sought credit had already been applied to unrelated
charges at docket number 2157-2009 for which Appellant’s
probation was revoked when he was arrested on the instant
charges at docket number 3324-2011. The trial court denied
Appellant’s petition on October 23, 2013.]
On April 23, 2014, [Appellant] filed a timely pro se Motion
for Post-Conviction Collateral Relief [(“PCRA”), 42 Pa.C.S.A. §§
9541-46], and on May 5, 2014, the [PCRA court] appointed
Attorney Vincent J. Quinn, Esquire, as PCRA counsel. Mr. Quinn
was grant[ed] forty-five (45) days to file an amended petition.
None was filed, and on August 22, 2014, Attorney Quinn filed a
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1
Each count was graded as a second degree felony, and each was
punishable by up to ten years in prison and a $25,000 fine. N.T., 5/3/13, at
3.
2
The information describes pornographic photographs and videos depicting
children as young as four years old performing sex acts on adults.
Information, 4/19/13, at Count 83.
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[Turner/Finley] no-merit letter3 and a Motion to Withdraw as
Counsel. On October 6, 2014, pursuant to Pa.R.Crim.P. 907, the
[PCRA court] filed its Notice of Intent to Dismiss [Appellant’s]
pro se PCRA petition without a hearing and granted Mr. Quinn
permission to withdraw as counsel.
On June 24, 2015, for the reasons stated in the court’s
October 6, 2014, Order, [the PCRA court] dismissed
[Appellant’s] PCRA Petition without [a] hearing under Rule 907.
On July 16, 2015, [Appellant] filed a Notice of
Appeal....[Appellant] included in this Notice an application to
proceed in forma pauperis for purposes of appellate review. On
July 29, 2015, [the PCRA court] granted [Appellant’s] Petition to
proceed with the filing of his appeal in forma pauperis.
Commonwealth v. Rice, No. 1319 MDA 2015, *1-3 (Pa.Super. filed
5/4/16) (unpublished memorandum) (footnotes in original) (quotation to
record omitted).
On appeal, this Court concluded the PCRA court had failed to address
adequately Appellant’s claim that guilty plea counsel was ineffective in failing
to file a timely, requested direct appeal from his judgment of sentence. See
id. Thus, this Court vacated the PCRA court’s June 24, 2015, order and
remanded for the appointment of new counsel to review the record and file
an amended PCRA petition. See id.
Upon remand, the PCRA court appointed Christopher P. Lyden,
Esquire, who filed an amended PCRA petition raising Appellant’s claim that
guilty plea counsel was ineffective in failing to file a direct appeal. On
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3
See Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1998).
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January 3, 2017, the PCRA court granted Appellant’s PCRA petition and
reinstated his direct appeal rights.
On January 5, 2017, Appellant filed the instant timely, counseled
notice of appeal, and in response to the trial court’s Pa.R.A.P. 1925(b) order,
Appellant filed a timely, counseled Pa.R.A.P. 1925(b) statement. The trial
court filed a responsive Pa.R.A.P. 1925(a) opinion. Thereafter, appellate
counsel filed with this Court a petition to withdraw his representation, and
he submitted an Anders brief.
When faced with a purported Anders brief, this Court may not review
the merits of the issues raised therein without first passing on the request to
withdraw. Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.Super. 2005).
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
case law, and/or statutes on point that have led to the
conclusion that the appeal is frivolous.
Santiago, 602 Pa. at 178-79, 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
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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) (citation omitted).
Instantly, Attorney Lyden provided a summary of the history of the
case, referred to anything in the record that he believed arguably supports
the appeal, set forth his conclusion that the appeal is frivolous, and stated in
detail his reasons for so concluding. Moreover, counsel has provided this
Court with a copy of the letter, which counsel sent to Appellant informing
him of his right to retain new counsel, proceed pro se, or raise any points
Appellant deems worthy of this Court’s attention.4 Accordingly, we conclude
counsel has substantially complied with the requirements of Anders and
Santiago. We, therefore, turn to the issues presented in the Anders brief
to make an independent judgment as to whether the appeal is, in fact,
wholly frivolous. Commonwealth v. Bynum-Hamilton, 135 A.3d 179
(Pa.Super. 2016).
Appellant presents the following issues on appeal:
1. Was plea counsel ineffective for failing to object to evidence
not properly authenticated?
2. Was plea counsel ineffective for failing to properly argue chain
of custody?
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4
Appellant has filed neither a pro se brief nor a counseled brief with new,
privately-retained counsel.
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3. Was plea counsel ineffective for failing to object to affidavits
containing misstatement of fact?
4. Was plea counsel ineffective for presenting evidence of a
phone call without Appellant’s consent?
5. Was plea counsel ineffective for failing to argue that a lack of
internet and email history warranted dismissal of charges?
6. Was plea counsel ineffective for failing to object to the court’s
failure to award time credit?
7. Is the sentence imposed unconstitutional pursuant to Alleyne
v. United States[,133 S.Ct. 2151 (2013)]?
Anders Brief at 4.
In issues one through six, Appellant presents ineffective assistance of
guilty plea counsel claims. For the reasons that follow, we defer Appellant’s
ineffective assistance of guilty plea counsel claims to be raised in a petition
under the PCRA.5
Our Supreme Court has held that claims of ineffective assistance of
counsel generally must await collateral review under the PCRA.
Commonwealth v. Holmes, 621 Pa. 595, 79 A.3d 562 (2013);
Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002). The Holmes
Court recognized two exceptions to the general rule whereby claims of
ineffective assistance of counsel may be raised and addressed on direct
appeal: (1) where the trial court determines that a claim of ineffectiveness is
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5
This Court has explained that, when a PCRA petitioner’s direct appeal rights
are reinstated nunc pro tunc via a first PCRA petition, a subsequent PCRA
petition will be considered a first PCRA petition. See Commonwealth v.
Karanicolas, 836 A.2d 940 (Pa.Super. 2003).
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both meritorious and apparent from the record so that immediate
consideration and relief is warranted; or (2) where the trial court finds good
cause for unitary review, and the defendant makes a knowing and express
waiver of his entitlement to seek PCRA review from his conviction and
sentence, including an express recognition that the waiver subjects further
collateral review to the time and serial petition restrictions of the PCRA.
Holmes, 79 A.3d at 564, 577.
Here, Appellant did not satisfy either of the aforementioned
exceptions. With regard to the first exception, the trial court made no
determination that any of the claims of ineffectiveness are both meritorious
and apparent from the record. In fact, in its Pa.R.A.P. 1925(a) opinion, the
trial court urges this Court to defer the ineffectiveness claims to collateral
review. Trial Court Opinion, filed 4/19/17, at 4. With regard to the second
exception, there is no indication Appellant has made a knowing and express
waiver of his entitlement to seek PCRA review. Consequently, in light of
Holmes, we dismiss Appellant’s claims of ineffective assistance of guilty plea
counsel without prejudice to his ability to raise the claims in a subsequent
PCRA petition, if he so chooses.
In his final issue, Appellant contends that his sentence is illegal
pursuant to Alleyne, supra. “Issues relating to the legality of a sentence
are questions of law. Our standard of review over such questions is de novo
and our scope of review is plenary.” Commonwealth v. Libengood, 152
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A.3d 1057, 1061-62 (Pa.Super. 2016) (quotation marks and quotation
omitted).
In Alleyne, the United States Supreme Court held that “facts that
increase mandatory minimum sentences must be submitted to the jury” and
found beyond a reasonable doubt. Id. at 2163. The trial court determined
that Alleyne is inapplicable to Appellant’s sentence as he “was not
sentenced pursuant to a mandatory minimum sentence which would fall
under the ambit of the Alleyne decision.” Trial Court Opinion, filed 4/19/17,
at 6. We agree with the trial court in this regard, and thus, the rule
announced in Alleyne is inapplicable to the within case.
For all of the foregoing reasons, and after an independent review, we
conclude Appellant is not entitled to relief and we grant counsel's petition to
withdraw his representation.
Judgment of Sentence Affirmed. Petition to Withdraw as Counsel
Granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/19/2017
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