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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
TYRONE CORRELL, :
:
Appellant : No. 28 WDA 2017
Appeal from the Judgment of Sentence November 15, 2016
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0010140-2016
BEFORE: BENDER, P.J.E., DUBOW, J., and PLATT, J.*
MEMORANDUM BY DUBOW, J.: FILED FEBRUARY 8, 2018
Appellant, Tyrone Correll, appeals from the Judgment of Sentence
entered in the Allegheny County Court of Common Pleas on November 15,
2016, following his guilty plea to Simple Assault, Resisting Arrest, and
Criminal Mischief.1 With this appeal, Appellant’s counsel, Caleb I. Pittman,
Esquire (“Counsel”), has filed a Petition to Withdraw and an Anders2 Brief,
stating that the appeal is wholly frivolous. After careful review, we affirm
the Judgment of Sentence and grant Counsel’s Petition to Withdraw.
The relevant procedural history is as follows. On November 15, 2016,
Appellant pleaded guilty to Simple Assault, Resisting Arrest, and Criminal
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1
18 Pa.C.S. § 2701; 18 Pa.C.S. § 5104; and 18 Pa.C.S. § 3304.
2
Anders v. California, 386 U.S. 738 (1967).
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* Retired Senior Judge assigned to the Superior Court.
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Mischief for incidents occurring in Allegheny County, Pennsylvania. On the
same day, the trial court sentenced Appellant to an aggregate term of 18
months’ probation, which was within the standard range of the Sentencing
Guidelines and was below the statutory maximum sentence for all counts.3
Appellant filed a timely Post-Sentence Motion requesting to withdraw
his guilty plea because the trial court lacked jurisdiction, which the trial court
denied on December 1, 2016.
Appellant filed a timely Notice of Appeal. Appellant and the trial court
complied with Pa.R.A.P. 1925.
As Counsel has filed an Anders Brief, we must consider his request to
withdraw prior to reviewing Appellant’s claims on the merits. Our review
indicates that Counsel has complied with the mandated procedure for
withdrawing as counsel. See Commonwealth v. Santiago, 978 A.2d 349,
361 (Pa. 2009) (articulating Anders requirements); Commonwealth v.
Daniels, 999 A.2d 590, 594 (Pa. Super. 2010) (providing that counsel must
inform client by letter of rights to proceed once counsel moves to withdraw
and append a copy of the letter to the petition). Appellant did not file a
response.
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3
The trial court sentenced Appellant to 18 months’ probation for Simple
Assault, 12 months’ probation for Resisting Arrest, and 90 days’ probation
for Criminal Mischief, with all sentences to run concurrently.
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Having concluded that Counsel complied with Anders and Daniels, we
next “make a full examination of the proceedings in the lower court and
render an independent judgment as to whether the appeal is in fact
‘frivolous.’” Commonwealth v. Orellana, 86 A.3d 877, 882 n.7 (citation
omitted).
In the Anders Brief, Counsel identifies four issues that Appellant could
potentially raise on direct appeal, including:
1. [T]he trial court lacked jurisdiction over the case;
2. [T]he trial court should have allowed [Appellant] to withdraw
his guilty plea after sentencing;
3. [T]he trial court imposed an illegal sentence; or
4. [T]he trial court abused its discretion in imposing the
sentence.
Anders Brief at 12. Counsel argues that all of these issues are frivolous and
without merit. Id. at 14. We agree.
By entering a guilty plea, a defendant waives his right to challenge on
direct appeal all non-jurisdictional defects, except the legality of the
sentence and the validity of the plea. Commonwealth v. Luketic, 162
A.3d 1149, 1159 (Pa. Super. 2017). A guilty plea “constitutes a waiver of
jurisdiction over the person of the defendant.” Commonwealth. v. Little,
314 A.2d 270, 272 (Pa. 1974). However, a defendant can never waive
subject matter jurisdiction; a defendant or the court may raise it at any
stage in the proceedings. Id. Also, when the plea bargain does not
designate the sentence to be imposed, as in this case, the defendant retains
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the right to challenge the discretionary aspects of his sentence. Luketic,
supra at 1159.
With respect to the first issue raised in the Anders Brief regarding
subject matter jurisdiction, we note that any challenge to a court’s subject
matter jurisdiction is a question of law and, therefore, our review is de novo.
Commonwealth v. Jones, 929 A.2d 205, 211 (Pa. 2007). There are two
requirements for subject matter jurisdiction as it relates to criminal
defendants: 1) the competency of the court to hear the case; and 2) the
provision of specific and formal notice to the defendant of the crimes
charged. Id. at 211-12 (citation omitted).
In the instant case, we agree with Counsel that a challenge to the trial
court’s jurisdiction is without merit. The Allegheny Court of Common Pleas,
Criminal Division, was competent to hear Appellant’s case, which involved
violations of the Pennsylvania Crimes Code occurring in Allegheny County.
See Commonwealth v. Kohler, 811 A.2d 1046, 1050 (Pa. Super. 2002)
(holding that a county court of common pleas has jurisdiction over offenses
that take place within its borders); Pa. Const. art. V, § 5 (providing court of
common pleas with unlimited original jurisdiction, except where otherwise
provided by law).
Moreover, a review of the record reveals that Appellant received
specific and formal notice of the charges that he was facing when the
Commonwealth filed the Criminal Complaint and Criminal Information, and
again when the trial court engaged Appellant in a thorough written and oral
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colloquy prior to his entering a guilty plea. See Criminal Complaint, filed
8/25/16; Criminal Information, filed 10/5/16; Written Guilty Plea Colloquy,
dated 11/15/16; N.T. Guilty Plea, 11/15/16, at 6-9. Accordingly, the trial
court had subject matter jurisdiction over Appellant’s case, and the trial
court properly denied Appellant’s Post-Sentence Motion requesting to
withdraw his guilty plea on this basis.
Counsel next raises a challenge to the court’s denial of Appellant’s
Post-Sentence Motion. We acknowledge that Appellant only raised an
objection to the validity of his guilty plea in his Post-Sentence Motion and
only advanced one basis for withdrawing his guilty plea in that Motion,
namely, that the trial court lacked jurisdiction. Accordingly, Appellant
waived any additional challenges to the validity of his guilty plea. See
Commonwealth v. Monjaras-Amaya, 163 A.3d 466, 468-69 (Pa. Super.
2017) (explaining that in order to preserve an issue related to a guilty plea,
defendant must either object at the sentencing colloquy or otherwise raise
the issue at the sentencing hearing or through a post-sentence motion).
See also Pa.R.A.P. 302(a); Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i). As
discussed above, a challenge to the court’s jurisdiction is meritless and,
therefore, the court properly denied Appellant’s Post-Sentence Motion.
Counsel next raises a claim that the trial court imposed an illegal
sentence, and then concludes that this claim is frivolous. Anders Brief at
20-21. We agree.
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The question of whether a trial court imposed an illegal sentence is a
question of law and, therefore, our review is de novo. Commonwealth v.
McClintic, 909 A.2d 1241, 1245 (Pa. 2006). “If a sentence is within the
statutory limits, it is legal.” Commonwealth v. Vasquez, 744 A.2d 1280,
1284 (Pa. 2000). Notably, a term of probation may not exceed the
maximum term for which the defendant could be confined. See 42 Pa.C.S.
§ 9754(a).
Here, Appellant entered a negotiated guilty plea, which specified that
Appellant would serve probation, but did not stipulate the length of the
period of probation. Appellant pled guilty to Simple Assault and Resisting
Arrest graded as misdemeanors of the second degree, and each charge
carried a maximum term of two years’ incarceration. 18 Pa.C.S. § 1104(2).
Appellant also pled guilty to Criminal Mischief graded as a summary offense,
which carried a maximum sentence of 90 days’ incarceration. 18 Pa.C.S. §
1105. The trial court sentenced Appellant to 18 months’ probation for
Simple Assault, 12 months’ probation for Resisting Arrest, and 90 days’
probation for Criminal Mischief, with all sentences to run concurrently. As
the sentence was within the statutory limits for all counts, any claim that the
sentence is illegal is frivolous.
Finally, Appellant has waived any challenges to the discretionary
aspects of his sentence. An appellant challenging the discretionary aspects
of his sentence must satisfy a four-part test in order to invoke our
jurisdiction to review the claim:
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(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 has a fatal defect, 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.] § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010).
Appellant did not preserve this issue at sentencing or in his Post-Sentence
Motion and, thus, Appellant waived this claim.
Accordingly, we agree with Counsel that this appeal is wholly frivolous.
Furthermore, our independent review of the record reveals no additional
non-frivolous claims. We, therefore, grant counsel’s Petition to Withdraw
and affirm the November 15, 2016 Judgment of Sentence.
Judgment of Sentence affirmed. Petition to Withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/8/2018
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