J-S64027-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PHILLIP SHEPPARD :
:
Appellant : No. 3696 EDA 2016
Appeal from the Judgment of Sentence November 21, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007072-2015
BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.
MEMORANDUM BY OLSON, J.: FILED NOVEMBER 09, 2018
Appellant, Phillip Sheppard, appeals from the judgment of sentence
entered on November 21, 2016. In this direct appeal, Appellant’s court-
appointed counsel filed both an application to withdraw as counsel and an
accompanying brief pursuant to Commonwealth v. McClendon, 434 A.2d
1185 (Pa. 1981), and its federal predecessor, Anders v. California, 386 U.S.
738 (1967). We conclude that Appellant’s counsel complied with the
procedural requirements necessary to withdraw. Furthermore, after
independently reviewing the record, we conclude that the appeal is wholly
frivolous. We, therefore, grant counsel’s application to withdraw and affirm
the judgment of sentence.
The factual background and procedural history of this case are as
follows. On May 6, 2015, Appellant chased William Seaglass down the street
J-S64027-18
while wielding a machete. On November 21, 2016, Appellant pled guilty to
simple assault1 and possessing an instrument of crime.2 The trial court
immediately sentenced him to an aggregate term of 9 to 23 months’
imprisonment. This timely appeal followed.3
Appellant’s counsel raises three issues in her Anders brief:
1. Was [Appellant’s] guilty plea valid?
2. Was [Appellant] competent to enter a plea?
3. Was [Appellant’s] sentence legal? Was the sentence imposed
upon [Appellant] by the [trial] court manifestly excessive?
Anders Brief at 3.
Before reviewing the merits of this appeal, we must first determine
whether counsel has fulfilled the necessary procedural requirements for
withdrawing as counsel. See Commonwealth v. Blauser, 166 A.3d 428,
431 (Pa. Super. 2017) (citation omitted). To withdraw under Anders, court-
appointed counsel
must file a petition averring that, after a conscientious
examination of the record, counsel finds the appeal to be wholly
frivolous. Counsel must also file an Anders brief setting forth
issues that might arguably support the appeal along with any
other issues necessary for the effective appellate presentation
thereof. Anders counsel must also provide a copy of the Anders
petition and brief to the appellant, advising the appellant of the
____________________________________________
1 18 Pa.C.S.A. § 2701(a)(3).
2 18 Pa.C.S.A. § 907.
3 Appellant and the trial court complied with Pennsylvania Rule of Appellate
Procedure 1925.
-2-
J-S64027-18
right to retain new counsel, proceed pro se, or raise any additional
points worthy of this Court’s attention.
Commonwealth v. Cook, 175 A.3d 345, 348 (Pa. Super. 2017) (cleaned up).
If counsel meets all of the above obligations, “it then becomes the
responsibility of the reviewing court to make a full examination of the
proceedings and make an independent judgment to decide whether the appeal
is in fact wholly frivolous.” Commonwealth v. Santiago, 978 A.2d 349, 355
n.5 (Pa. 2009), quoting McClendon, 434 A.2d at 1187. It is only when both
the procedural and substantive requirements are satisfied that counsel will be
permitted to withdraw. In the case at bar, counsel has met all of the above
procedural obligations.4 We now turn to whether this appeal is wholly
frivolous.
The first issue raised in counsel’s Anders brief is whether Appellant
entered a knowing, intelligent, and voluntary plea. The trial court conducted
a full colloquy with Appellant at the guilty plea hearing. Appellant stated,
under oath, that he was pleading guilty of his own free will. N.T., 11/21/16,
at 7. He further stated that no one had threatened or coerced him into
pleading guilty. Id. Appellant stated that he was not promised anything for
his guilty plea. Id. at 6-7. He stated that he had reviewed the case with his
attorney and that he was satisfied with his attorney’s representation. Id. at
____________________________________________
4 Although we gave Appellant additional time, he did not file a response to
counsel’s Anders brief.
-3-
J-S64027-18
12-13. Appellant stated that he reviewed the written guilty plea colloquy with
his attorney and understood its contents, including the rights he was giving
up by pleading guilty. Id. at 11-12. He stated he was not under the influence
of drugs or alcohol. Id. at 5. He stated that he did not currently suffer from
any mental illness. Id. The trial court apprised him of the maximum penalty
he could face. Id. at 10-11. Appellant thereafter pled guilty to simple assault
and possessing an instrument of crime. Thus, Appellant knowingly,
voluntarily, and intelligently pled guilty. Therefore, the first issue raised in
counsel’s Anders brief is frivolous.
The second issue raised in counsel’s Anders brief is whether Appellant
was competent to plead guilty. Our Supreme Court has explained that “a
defendant must be competent to be tried, convicted, or sentenced. A
defendant is legally incompetent if he is substantially unable to understand
the nature or object of the proceedings against him or to participate and assist
in his defense.” Commonwealth v. Bomar, 826 A.2d 831, 860 (Pa. 2003)
(cleaned up). In this case, the record reflects that Appellant was able to
understand the nature and object of the proceedings against him and to assist
with his defense. Although Appellant suffered from post-traumatic stress
disorder when he was in the armed forces over 20 years ago, he does not
currently suffer from any mental abnormalities. Moreover, he was able to
consult with his attorney prior to the combined plea and sentencing hearing.
He also consulted with counsel during that hearing. There is no evidence
-4-
J-S64027-18
indicating that Appellant failed to understand the nature of the proceedings
and its object. There is similarly no evidence that Appellant was unable to
assist with his own defense. Accordingly, the second issue in counsel’s
Anders brief is frivolous.
The final issues presented in counsel’s Anders brief are whether the
sentence imposed was illegal and/or manifestly excessive. We review an
illegal sentencing claim de novo and our scope of review is plenary.
Commonwealth v. Rodriguez, 174 A.3d 1130, 1147 (Pa. Super. 2017),
appeal denied, 186 A.3d 941 (Pa. 2018) (citation omitted). Possessing an
instrument of crime is a first-degree misdemeanor for which the maximum
penalty is five years’ imprisonment. 18 Pa.C.S.A. §§ 907, 1104(1). Simple
assault is a second-degree misdemeanor for which the maximum penalty is
two years’ imprisonment. 18 Pa.C.S.A. §§ 2701, 1104(2). As Appellant
received an aggregate prison term less than the maximum sentences for both
offenses to which he pled guilty, the illegal sentencing claim is frivolous.
The second portion of Appellant’s final issue challenges the discretionary
aspects of his sentence. Pursuant to statute, Appellant does not have an
automatic right to appeal the discretionary aspects of his sentence. See 42
Pa.C.S.A. § 9781(b). Instead, Appellant must petition this Court for
permission to appeal the discretionary aspects of his sentence. Id.
In order to reach the merits of a discretionary aspects claim,
we must engage in a four part analysis to determine: (1) whether
the appeal is timely; (2) whether the appellant preserved his or
-5-
J-S64027-18
her issue; (3) whether the appellant’s brief includes a concise
statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of sentence; and (4) whether
the concise statement raises a substantial question that the
sentence is appropriate under the Sentencing Code.
Commonwealth v. Foust, 180 A.3d 416, 439 (Pa. Super. 2018) (cleaned
up). Appellant filed a timely notice of appeal; however, he did not preserve a
challenge to the discretionary aspects of his sentence at the sentencing
hearing or via a post-sentence motion. Hence, the discretionary aspects
challenge is frivolous.
In sum, we conclude that the issues raised in counsel’s Anders brief are
wholly frivolous. Furthermore, after an independent review of the entire
record, we conclude that no other issue of arguable merit exists. Therefore,
we grant counsel’s request to withdraw. Having determined that the issues
raised on appeal are wholly frivolous, we affirm the judgment of sentence.
Application to withdraw as counsel granted. Judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/9/18
-6-
J-S64027-18
-7-