Com. v. Tejada, R.

J-S81029-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICKY TEJADA :
:
Appellant : No. 612 MDA 2018

Appeal from the Judgment of Sentence September 14, 2017
In the Court of Common Pleas of Huntingdon County Criminal Division at
No(s): CP-31-CR-0000389-2014

BEFORE: STABILE, J., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY DUBOW, J.: FILED: APRIL 29, 2019

Appellant, Ricky Tejada, appeals from the Judgment of Sentence of

twenty-one to forty-two months of incarceration, imposed on September 14,

2017, following his conviction for Aggravated Harassment by Prisoner.1

Appointed counsel, Gregory A. Jackson, Esq., seeks to withdraw his

representation of Appellant pursuant to Anders v. California, 386 U.S. 738

(1967). In turn, Appellant has filed pro se a Response and an Application for

Relief. We affirm the Judgment of Sentence, grant counsel’s Application to

Withdraw, and deny Appellant’s Application for Relief.

We have previously stated the background to this case as follows.

“While housed at the state correctional facility on another matter, Appellant

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1 18 Pa.C.S. § 2703.1.

* Former Justice specially assigned to the Superior Court.
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spit in the face of a corrections officer who was attempting to remove

Appellant from the law library.” Commonwealth v. Tejada, 161 A.3d 313,

315 (Pa. Super. 2017).2 During the trial that followed, Appellant struck his

attorney. Id. Counsel moved for a mistrial and asked to withdraw, both of

which the court granted. Id.

In January 2015, the trial court appointed new counsel to represent

Appellant. Trial Ct. Order, 1/30/15. In July 2015, a jury trial commenced via

videoconference; the jury convicted Appellant, and the court imposed

sentence. See Tejada, supra at 316.

On appeal, Appellant asserted that a violation of Due Process occurred

when the court denied him an opportunity to demonstrate his rehabilitation

and attend his retrial in person. Id. at 316 n.3. A panel of this Court found

no infringement of Appellant’s rights. Id. at 318-20. Nevertheless, reviewing

the discretionary aspects of his sentence, the panel concluded the trial court

had abused its discretion when it imposed a sentence without the benefit of a

pre-sentence investigation (PSI) report. Id. at 320-21. The panel, therefore,

vacated Appellant’s Judgment of Sentence and remanded for further

proceedings. Id. at 321.

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2 The Complaint filed in this matter indicates the incident took place “on or
about 06/12/14 at approximately 1535 hours.” Huntingdon Cnty. Criminal
Complaint No. G03-1368547, 6/25/14, at 1 (unpaginated) (unnecessary
capitalization removed).

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On remand, following submission of a completed PSI report, the trial

court imposed the standard-range sentence indicated above, to be served

consecutively to any other sentence already being served.3 Sentencing Order,

9/14/17.

Appellant timely filed a Post-Sentence Motion. Appellant preserved no

substantive issues; rather, he sought leave “to supplement and amend” his

Post-Sentence Motion “prior to the [c]ourt’s final consideration.” Appellant’s

Post-Sentence Motion, 9/19/17, at 1. The court granted Appellant’s request,

affording him until November 13, 2017, to supplement his Motion and

extending the 120-day dispositional period by thirty days. Trial Ct. Order,

9/29/17 (citing Pa.R.Crim.P. 720(B)(3)(b)). Appellant filed no amendment to

his Post-Sentence Motion.

In December 2017, the court issued an order extending the dispositional

period an additional thirty days. Trial Ct. Order, 12/14/17. Thereafter, the

court denied Appellant’s Post-Sentence Motion. Trial Ct. Order, 3/9/2018.

Appellant appealed and filed a Statement in which counsel indicated his

intention to file an Anders brief. See Pa.R.A.P. 1925(c)(4). In response, the

trial court directed our attention to “the record and [its] prior decisions.” Trial

Ct. Order, 9/6/18.

Initially, we observe that Appellant’s appeal followed several procedural

errors by the trial court. Pennsylvania Rule of Criminal Procedure 720 governs
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3 This is the same sentence as originally imposed.

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the manner in which the court reviews a defendant’s post-sentence motion.

A defendant must file a written post-sentence motion no later than 10 days

after imposition of sentence. Pa.R.Crim.P. 720(a)(1). Generally, the court

shall decide a post-sentence motion within 120 days. Pa.R.Crim.P.

720(B)(3)(a). In its discretion, the court may “grant one 30-day extension

for decision on the [post-sentence] motion.” Pa.R.Crim.P. 720(B)(3)(b)

(emphasis added). “If the judge fails to decide the motion within the 30-day

extension period, the motion shall be deemed denied by operation of law.”

Id.

“When a post-sentence motion is denied by operation of law, the clerk

of courts shall forthwith enter an order on behalf of the court” in accordance

with the service provisions set forth in Rule 114. Pa.R.Crim.P. 720(B)(3)(c).

Notice of the court’s decision or the denial by operation of law shall trigger a

defendant’s 30-day direct appeal period. Commonwealth v. Khalil, 806

A.2d 415, 420-21 (Pa. Super. 2002); Pa.R.Crim.P. 720 Comment.

Failure to adhere to the procedures outlined in Rule 720, including its

notice provisions, results in a breakdown of the court’s processes that may

require remediation. For example, in Khalil, a defendant timely filed a post-

sentence motion. Khalil, supra at 418. The trial court mistakenly scheduled

a hearing on the motion beyond the expiration of the 120-day, post-sentence

review period. Id. Realizing the court’s error, the defendant filed a motion

requesting an extension of the review period. Id. The court granted the

motion; however, both the motion and the court’s approval occurred after the

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review period had expired. Id. Thereafter, the court denied the post-

sentence motion, and the defendant appealed. Id.

Upon review, we determined the trial court was without power to extend

the post-sentence review period or to rule on the merits of the defendant’s

post-sentence motion. Id. at 419-20 (holding that the court’s untimely

extension and subsequent denial “were a legal nullity”). Compounding these

errors, we observed that the clerk of courts had failed to enter an order on

the docket or notify the defendant that his post-sentence motion was deemed

denied by operation of law. Id. at 420-211. These several errors comprised

a breakdown in the processes of the trial court, necessitating that we address

the merits of his appeal. Id. (explaining that such a breakdown deprives a

defendant of adequate notice of his constitutional right to a direct appeal);

see also, e.g., Commonwealth v. Jerman, 762 A.2d 366, 368 (Pa. Super.

2000) (deeming PCRA petitioner’s appeal timely where clerk failed to notify

petitioner of order denying collateral relief, thus concluding “the period for

taking an appeal was never triggered”); Pa.R.Crim.P 114 (addressing filing

and service requirements).

Here, Appellant filed his Post-Sentence Motion on September 19, 2017.

Initially, the court was required to decide the Motion within 120 days, by

January 17, 2018. See Pa.R.Crim.P. 720(B)(3)(a). The court extended the

post-sentence review period by 30 days to February 16, 2018. This was an

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appropriate exercise of the court’s discretion. See Pa.R.Crim.P.

720(B)(3)(b).4

However, when the trial court did not address the merits of Appellant’s

Post-Sentence Motion by February 16, 2018, the Huntingdon County Clerk of

Courts was required to issue an order denying Appellant’s Post-Sentence

Motion by operation of law. See Pa.R.Crim.P. 720(B)(3)(b), (c). It failed to

do so. As in Khalil, Appellant here did not receive notice triggering the 30-

day period for his direct appeal. Accordingly, we deem his Notice of Appeal

timely filed. Khalil, supra at 420-21; Pa.R.Crim.P. 720 Comment.

In this Court, counsel has filed an Anders Brief raising several issues

potentially supporting Appellant’s appeal: (1) a purported challenge to

discretionary aspects of Appellant’s sentence, (2) an assertion that the court

erred in failing to afford him an opportunity to review personally the PSI

report, (3) an assertion that the prosecutor had a conflict of interest, (4) an

alleged Brady violation,5 and (5) allegations of counsel’s ineffectiveness. See

Anders Br. at 3-5 (unpaginated).6 In addition, counsel has filed an

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4In contrast, the second extension granted by the trial court on December
14, 2017, was improper; we, thus, deem it a legal nullity. Khalil, supra at
419-20. Similarly, the court’s subsequent order denying Appellant’s Post-Trial
Motion on the merits was without legal effect. Id.

5 See Brady v. Maryland, 373 U.S. 83 (1963).

6 We have reorganized the issues addressed by counsel.

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Application to Withdraw as Counsel. Appellant pro se filed a Response to

counsel’s Anders brief, presenting the same issues raised by counsel. See

Appellant’s Response, 11/21/18.7

“When faced with a purported Anders brief, this Court may not review

the merits of any possible underlying issues without first examining counsel’s

request to withdraw.” Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.

Super. 2007) (en banc). Prior to withdrawing as counsel on direct appeal

under Anders, counsel must file a brief that meets the requirements

established by the Pennsylvania Supreme Court in Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009), namely:

(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, 978 A.2d at 361.

In addition, counsel must provide a copy of the Anders brief to his

client. “Attending the brief must be a letter that advises the client of his right

to: ‘(1) retain new counsel to pursue the appeal; (2) proceed pro se on appeal;
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7 Appellant’s Response in nearly incomprehensible. We have expended
considerable effort to accurately characterize Appellant’s concerns, and we
address them accordingly.

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or (3) raise any points that the appellant deems worthy of the court[’]s

attention in addition to the points raised by counsel in the Anders brief.’”

Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014)

(quoting Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007).

Counsel has complied with the requirements of Anders as articulated in

Santiago. Namely, he includes a summary of the relevant factual and

procedural history; he refers to the portions of the record that could arguably

support Appellant’s claims; and he sets forth his conclusion that Appellant’s

appeal is frivolous. He explains his reasoning and supports his rationale with

citations to the record as well as pertinent legal authority. 8 Counsel has

supplied Appellant with a copy of his Anders Brief and a letter explaining the

rights enumerated in Nischan. Accordingly, counsel has complied with the

technical requirements for withdrawal.9

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8 Although we conclude that counsel has complied with the requirements of
Anders, we note that counsel’s brief does not conform to our Rules of
Appellate Procedure. See Pa.R.A.P. 2111-2119 (discussing required content
of appellate briefs and addressing specific requirements of each subsection of
brief on appeal). Compliance with these Rules is mandatory, and where such
defects are substantial we may dismiss an appeal. See Commonwealth v.
Snyder, 870 A.2d 336, 340 (Pa. Super. 2005) (directing appellant’s attention
to Pa.R.A.P. 2101). We decline to do so here.

9 Attached to counsel’s Application was a letter addressed to Appellant,
informing him that counsel sought leave to withdraw. Upon review of
counsel’s letter to Appellant, this Court issued an Order directing counsel to
inform Appellant of his right to proceed immediately pro se or with privately
retained counsel. Order, 11/7/18. Counsel complied and filed with this Court
a copy of the clarifying letter sent to Appellant. See Response to Order,
11/15/18 (Letter, dated 11/9/18).

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Having addressed counsel’s technical compliance with Anders, we will

address the substantive issues raised by counsel, along with the supplemental

analysis submitted by Appellant pro se. In addition, we must conduct “a

simple review of the record to ascertain if there appear on its face to be

arguably meritorious issues that counsel, intentionally or not, missed or

misstated.” Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super.

2018) (en banc).

In his first issue, Appellant purports to challenge discretionary aspects

of his sentence. See Anders Br. at 3 (unpaginated) (suggesting the

“propriety” of Appellant’s sentence is at issue); Appellant’s Response at 2

(asserting that the trial court failed to consider the facts of the crime and the

character of Appellant such that the sentence imposed is “contrary to the

fundamental norms of the sentencing process”).

A challenge to discretionary aspects of a sentence is not reviewable as

a matter of right. Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa.

Super. 2015). Rather, an appellant must invoke this Court’s jurisdiction by,

inter alia, preserving a challenge at sentencing or in a post-sentence motion.

Id. “Objections to the discretionary aspects of a sentence are generally

waived if they are not raised at the sentencing hearing or in a motion to modify

the sentence imposed.” Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.

Super. 2013).

Here, Appellant did not preserve a challenge at his sentencing hearing

or thereafter in his Post-Sentence Motion. Accordingly, he has waived any

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challenge to discretionary aspects of his sentence. See Dempster, supra;

Leatherby, supra; Griffin, supra.10

Next, Appellant asserts the court erred when it did not afford him an

opportunity to review personally the PSI report’s contents. See Anders Br.

at 4 (unpaginated); Appellant’s Response at 3 (asserting that the court

improperly denied Appellant an “opportunity to audit content of the PSI

report”).

Pennsylvania Rule of Criminal Procedure 703 provides that “[a]ll pre-

sentence reports and related psychiatric and psychological reports shall be

confidential . . . and not of public record.” Pa.R.Crim.P. 703(A). They shall

be available to the sentencing judge, as well as “an examining professional or

facility appointed to assist the court in sentencing,” the attorney for the

Commonwealth, and counsel for the defendant. Id. There is no requirement

“that a defendant be permitted to examine personally the [PSI] report for

inaccuracies.” Commonwealth v. Smillie, 462 A.2d 804, 808 (Pa. Super.

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10 Absent waiver, we note that the trial court had the benefit of a PSI report;
thus, we assume that it “was aware of relevant information regarding the
defendant's character and weighed those considerations along with mitigating
statutory factors.” Commonwealth v. Moury, 992 A.2d 162 (Pa. Super.
2010) (quotation marks and citations omitted). “Further, where a sentence
is within the standard range of the guidelines, Pennsylvania law views the
sentence as appropriate under the Sentencing Code.” Id. Here, the court
imposed a standard range sentence. Thus, there is no merit to Appellant’s
challenge.

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1983); Pa.R.Crim.P. 703(A). Accordingly, there is no merit to Appellant’s

assertion.11

Third, Appellant also asserts that the prosecuting attorney should have

been barred from Appellant’s sentencing hearing because of a conflict of

interest. See Anders Br. at 4 (unpaginated). It is not clear to what alleged

conflict of interest Appellant refers. Id.; see also generally Appellant’s

Response. Nevertheless, our review of the record reveals that Appellant did

not seek the prosecuting attorney’s recusal prior to sentencing. Accordingly,

this claim is waived. Pa.R.A.P. 302(a).

Fourth, Appellant asserts a Brady violation. See Anders Br. at 4-5

(unpaginated); Appellant’s Response at 1-2. According to Appellant, the

Commonwealth concealed the existence of “willing [and] available eye

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11 Appellant also suggests the court erred in directing the Department of
Corrections (DOC) to provide it with Appellant’s institutional file. See Anders
Br. at 4 (unpaginated) (citing Trial Ct. Order, 7/24/17). The premise of
Appellant’s claim is not clear. Id.; but see Appellant’s Response at 3
(suggesting the court failed to consider the file’s “contents when determining
sentence”). Appellant’s DOC file does not appear in the certified record. Thus,
it is unclear whether the court ever received it. Nevertheless, to the extent
the Huntingdon County Probation Department relied on information from DOC
in preparing Appellant’s PSI report, we reiterate that Appellant is not entitled
to review the report personally for inaccuracies. Smillie, supra at 808.

In addition, Appellant asserts that the court should have ordered a psychiatric
evaluation of Appellant, suggesting that an evaluation was necessary to aid
the court in crafting a sentence. Appellant’s Response at 2. We conclude this
issue is waived, as there is no evidence of record that Appellant requested a
psychiatric evaluation prior to sentencing. Pa.R.A.P. 302(a) (“Issues not
raised in the lower court are waived and cannot be raised for the first time on
appeal”).

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witnesses” to his Aggravated Harassment of a correctional officer. Appellant’s

Response at 1. In addition, according to Appellant, the Commonwealth

concealed video evidence from the crime scene. Id. at 1-2.

In his initial appeal, Appellant raised two issues, challenging (1) the

court’s decision to proceed with a retrial via videoconference and (2)

discretionary aspects of his sentence related to the absence of a PSI report.

Tejada, supra at 316. Following our review, this Court affirmed Appellant’s

conviction but vacated his Judgment of Sentence. Tejada, supra at 315. We

remanded this matter for a singular purpose, directing the trial court to re-

sentence Appellant with the benefit of a PSI report. Id. at 320-21.

Accordingly, Appellant’s Brady claims are not properly before this Court. See

Commonwealth v. Anderson, 801 A.2d 1264, 1266 (Pa. Super. 2002)

(“having been re-sentenced following remand, [an] appellant [can] not file

another direct appeal attacking his conviction: the only issues reviewable in a

direct appeal would be challenges to the sentence imposed following

remand”).

Fifth, Appellant challenges the stewardship of counsel, asserting

ineffective assistance at both his trial and on appeal. Appellant’s Anders Br.

at 5; Appellant’s Response at 1-3. These claims merit no relief at this time.

“[A]s a general rule, a petitioner should wait to raise claims of ineffective

assistance of trial counsel until collateral review.” Commonwealth v.

Grant, 813 A.2d 726, 738 (Pa. 2002) (emphasis added). Our Supreme Court

has recognized two limited exceptions. In the context of a direct appeal,

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courts may entertain ineffectiveness claims where: (1) the claim is apparent

from the record and meritorious, to the extent immediate consideration best

serves the interests of justice; or (2) where good cause is shown and the

defendant knowingly and expressly waives entitlement to seek subsequent

PCRA review. Commonwealth v. Holmes, 79 A.3d 562, 563-64 (Pa. 2013).

However, neither Holmes exception applies to Appellant’s claims, as their

merit is not readily apparent from the record, nor has Appellant demonstrated

good cause and expressly waived subsequent collateral review. Id. Thus,

pursuant to Grant, we dismiss Appellant’s ineffectiveness claims without

prejudice to his right to pursue them in a timely petition for collateral relief.

Grant, supra at 738.12

Following our review of the issues raised by Appellant in counsel’s

Anders Brief and pro se in his Response, we agree with counsel and conclude

that this appeal is wholly frivolous. In addition, following an independent

review of the record, we discern no arguably meritorious issues that warrant

further consideration. See Dempster, supra at 272. Accordingly, we grant

counsel’s Application to Withdraw and affirm Appellant’s Judgment of

Sentence.

Application for Relief denied; Application to Withdraw granted;

Judgment of Sentence affirmed.

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12Appellant pro se filed an Application for Relief, in which Appellant asserts
an additional claim of ineffective assistance of counsel. Application for Relief,
2/19/19. For the reasons set forth supra, we deny Appellant’s Application.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/29/2019

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