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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
HASSAN MUSTAFA :
:
Appellant : No. 295 EDA 2017
Appeal from the Judgment of Sentence December 12, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004963-2015
BEFORE: LAZARUS, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 21, 2018
Hassan Mustafa appeals from the judgment of sentence, entered in the
Court of Common Pleas of Philadelphia County, following his open guilty plea
to possession of a controlled substance with intent to deliver (PWID),1 criminal
conspiracy2 and possession of a firearm prohibited.3 As a prefatory matter,
we observe counsel has filed an Anders4 brief. After our independent review,
we affirm.
Pursuant to Anders and Commonwealth v. Santiago, 978 A.2d 349
(Pa. 2009), when counsel determines that there are no non-frivolous issues
____________________________________________
1 35 P.S. § 780-113(a)(30).
2 18 Pa.C.S. § 903.
3 18 Pa.C.S. § 6105.
4 Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).
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for review, counsel must: (1) petition the Court for leave to withdraw,
certifying that after a thorough review of the record, counsel has concluded
the issues to be raised are wholly frivolous; (2) file a brief referring to anything
in the record that might arguably support the appeal; and (3) furnish a copy
of the brief to the appellant and advise him of his right to obtain new counsel
or file a pro se brief to raise any additional points the appellant deems worthy
of review. Santiago, 978 A.2d at 358–61. Further, Santiago requires
counsel to include in the Anders brief: (1) a summary of the facts and
procedural history, with citations to the record; (2) reference to anything in
the record that counsel believes arguably supports the appeal; (3) counsel’s
conclusion that the appeal is frivolous; and (4) counsel’s reasons for
concluding the appeal is frivolous. Santiago, 978 A.2d at 361. Substantial
compliance with these requirements is sufficient. Commonwealth v.
Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007).
Instantly, counsel has substantially complied with the briefing
requirements under applicable law. See Santiago, supra; Wrecks, supra.
Although counsel did not file a separate petition with this Court to withdraw
his representation, the brief includes counsel’s specific request to withdraw.
See Anders Brief, at 20. Thus, we can treat the request to withdraw as
properly before this Court. See Commonwealth v. Fischetti, 669 A.2d 399
(Pa. Super. 1995) (explaining more desirable practice is for counsel to submit
separate withdrawal petition to Superior Court; nevertheless, withdrawal
request included in Anders brief will suffice).
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In his Anders brief, counsel provides a summary of the procedural
history and facts, with citation to the record; refers to items in the record,
which might arguably support the appeal; states he engaged in a
conscientious examination of the record; concludes the appeal is wholly
frivolous; and articulates relevant facts, controlling case law, and rules on
point. Moreover, we note counsel attached to his brief a letter, dated June
19, 2018, advising Mustafa he was seeking to withdraw, and as a result,
Mustafa could retain new counsel or proceed pro se. He further indicated he
provided Mustafa with a copy of his Anders brief. We will now conduct our
independent review of the issues raised by counsel and determine, using our
own judgment, whether the appeal is wholly frivolous. Santiago, supra.
In his Anders brief, counsel refers to two possible claims: the validity
of the guilty plea and discretionary aspects of sentencing. The record indicates
Mustafa entered an open guilty plea before the Honorable Anne Marie B. Coyle,
to charges of PWID, criminal conspiracy, and a firearms violation. In exchange
for the plea, the Commonwealth dropped fifteen other charges. Our review
of the record, in particular the guilty plea colloquy and sentencing hearing,
see N.T. Guilty Plea Hearing, 11/14/16 and N.T. Sentencing, 12/6/16,
indicates that Mustafa entered a voluntary, knowing and intelligent plea to
these charges, and that he understood that the maximum penalty he faced
was 50 years and a $425,000 fine. See N.T. Guilty Plea Hearing, supra at 6,
8-9.
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Additionally, the court imposed concurrent sentences for each conviction
at the lower end of the standard range of the Sentencing Guidelines. See
N.T. Sentencing, supra at 20-21. Moreover, the court had before it a
presentence investigation report. Id. at 5. See Commonwealth v. Devers,
546 A.2d 12 (Pa. 1988) (having been fully informed by presentence report,
sentencing court’s discretion should not be disturbed).
Having conducted our independent review, we agree with counsel’s
assessment that there are no non-frivolous issues preserved for appeal. We
conclude, therefore, that the appeal is wholly frivolous. See Anders, supra.
We affirm the judgment of sentence and grant counsel’s petition to withdraw.
Judgment of sentence affirmed. Petition to Withdraw Granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/18
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