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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ANDREW BOODOO :
:
Appellant : No. 950 EDA 2018
Appeal from the Judgment of Sentence March 1, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009940-2016
BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY DUBOW, J.: FILED MAY 21, 2019
Appellant, Andrew Boodoo, appeals from the Judgment of Sentence of
six to twelve years of incarceration followed by five years of probation, entered
March 1, 2018, following his open guilty plea to Criminal Attempt (Murder),
Firearms Not to be Carried without a License, and Carrying Firearms on Public
Streets or Public Property in Philadelphia.1 Appointed counsel, James Lloyd,
Esq., seeks to withdraw his representation of Appellant pursuant to Anders
v. California, 386 U.S. 738 (1967). We affirm the Judgment of Sentence and
grant counsel’s Application to Withdraw as Counsel.
On May 22, 2016, while a passenger in a black Nissan, Appellant drove
to the one hundred block of East Wishart Street in Philadelphia. N.T. Guilty
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1 See 18 Pa.C.S. §§ 901(a) (Murder, 18 Pa.C.S. § 2502), 6106(a)(1), 6108,
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Plea, 12/11/17, at 11. Appellant leaned out of the vehicle, drew a firearm,
and fired several shots at the victim, Dana McKleany. Id.2 Thereafter, police
arrested Appellant, charged him, and he pleaded guilty. Id. at 11-13.
Following a pre-sentence investigation, the trial court sentenced
Appellant as stated above. N.T. Sentencing, 3/11/18, at 21-22. Appellant did
not file a post-sentence motion, nor did he otherwise challenge the validity of
his plea or the discretionary aspects of his sentence.
Appellant timely filed a Notice of Appeal. The trial court granted former
counsel, Carmen Nasuti, Esq., leave to withdraw and appointed current
counsel for appellate purposes. Trial Ct. Order, 3/28/18. Thereafter, counsel
filed a Statement indicating his intent to file an Anders brief. See Pa.R.A.P.
1925(c)(4). The trial court did not file an opinion in response.
In this Court, counsel has filed an Anders Brief purporting to challenge
discretionary aspects of Appellant’s sentence and the validity of his plea.
Anders Br. at 6. In addition, counsel has filed an Application to Withdraw as
Counsel.
“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
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2 The Notes of Testimony contain a stenographical error, suggesting the
victim’s name is “Damon McClinning.” Id.; see Information, 10/27/16
(providing victim’s proper name).
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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;
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, 880 (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
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appeal is frivolous.3 He explains his reasoning and supports his rationale with
citations to the record as well as pertinent legal authority. Counsel has
supplied Appellant with a copy of his Anders Brief and a letter explaining the
rights enumerated in Nischan. See Application to Withdraw, Exh. A, (Letter,
dated August 31, 2018). Accordingly, counsel has complied with the technical
requirements for withdrawal.4
Having addressed counsel’s technical compliance with Anders, we will
address the substantive issues raised by counsel. 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 20 (suggesting Appellant’s sentence is
“manifestly excessive”).
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3 In his Brief, counsel does not conclude specifically that Appellant’s appeal is
“frivolous.” See generally Anders Br. Rather, counsel states that
Appellant’s “claim[s] cannot be ethically advanced in this direct appeal.”
Anders Br. at 20, 24; but see Application to Withdraw at ¶¶ 5 (“[A]ll possible
issues to be raised in this direct appeal [are] frivolous.”), 7 (“I ultimately
determined [Appellant’s issues] to be frivolous under controlling law in light
of the existing record.”). In light of counsel’s otherwise strictly compliant
Brief, which demonstrates a comprehensive understanding of the record and
controlling law, we deem counsel’s Anders Brief compliant.
4 Appellant has offered no response to counsel’s Anders Brief.
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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 this challenge at his sentencing hearing
or thereafter in a post-sentence motion. Accordingly, he has waived any
challenge to discretionary aspects of his sentence. See Leatherby, supra;
Griffin, supra.
In his second issue, Appellant purports to challenge the validity of his
plea. Anders Br. at 24.
“A defendant wishing to challenge the voluntariness of a guilty plea on
direct appeal must either object during the plea colloquy or file a motion to
withdraw the plea within ten days of sentencing.” Commonwealth v.
Lincoln, 72 A.3d 606, 609-10 (Pa. Super. 2013) (citing Pa.R.Crim.P. 720).
Failure to do so results in waiver. Id.; Commonwealth v. Tareila, 895 A.2d
1266, 1270 n.3 (Pa. Super. 2006). “Moreover, a party cannot rectify the
failure to preserve an issue by proffering it in response to a Rule 1925(b)
order.” Commonwealth v. Monjaras-Amaya, 163 A.3d 466, 469 (Pa.
Super. 2017) (quotation marks and citation omitted; emphasis removed).
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Here, Appellant did not preserve this challenge at his plea colloquy or
thereafter by motion. Accordingly, he has waived any challenge to the
voluntariness of his plea. See Lincoln, supra; Monjaras-Amaya, supra.
Appellant has waived both issues he purports to raise on appeal. “An
issue that is waived is frivolous.” Commonwealth v. Tukhi, 149 A.3d 881,
888–89 (Pa. Super. 2016); see also Commonwealth v. Kalichak, 943 A.2d
285, 291 (Pa. Super. 2008) (“Having been waived, pursuing this matter on
direct appeal is frivolous.”).
Following our review of the issues purportedly raised by Appellant in
counsel’s Anders Brief, 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 as Counsel and affirm Appellant’s Judgment of Sentence.
Application to Withdraw as Counsel granted; Judgment of Sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/21/19
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