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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT
PENNSYLVANIA, : OF PENNSYLVANIA
:
Appellee :
:
v. :
:
MICHAEL ROJAS, :
:
Appellant : No. 286 EDA 2018
Appeal from the Judgment of Sentence September 18, 2015
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013142-2013
CP-51-CR-0013145-2013
BEFORE: LAZARUS, J., KUNSELMAN, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 25, 2019
Michael Rojas (Appellant) appeals nunc pro tunc from his judgment of
sentence imposed on September 18, 2015, after pleading guilty to numerous
charges related to shooting three people in Philadelphia. In addition,
Appellant’s counsel has filed a petition to withdraw and a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009). We affirm the judgment of sentence and
grant counsel’s petition to withdraw.
The trial court summarized the facts of this case as follows.
On September 1, 2013, Appellant was at a family gathering
on the 700 block of Russell Street in Philadelphia, when he and
one of the guests got into an argument. Appellant pulled out a
handgun and began shooting into the air. Maurine Cancel,
Appellant’s cousin, approached [] Appellant and asked, “What are
* Retired Senior Judge assigned to the Superior Court.
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you doing? My kids are around and there are kids in this
neighborhood and why are you shooting the gun in the air?”
Appellant briefly stopped firing the gun but started shooting again
a few minutes later. As Appellant was shooting, he struck Victor
Lopez, Ms. Cancel’s husband, four times in the chest and
abdomen. Odalys Melendez, the second victim and Appellant’s
girlfriend at the time, was shot in the left arm. The third victim,
Appellant’s uncle, Gilberto Hernandez, was shot in his left hand.
Appellant was not arrested until September 11, 2013. At
the time of his arrest, Appellant was in possession of a firearm. A
cross-check was done on the fired cartridge casings recovered
from the 700 block of Russell Street. It was later determined that
the firearm in Appellant’s possession at the time of his arrest was
the same firearm that was discharged at the 700 block of Russell
Street shooting on September 1, 2013.
Trial Court Opinion, 6/19/2018, at 2 (citations to notes of testimony omitted).
Appellant was charged at three separate docket numbers with
numerous charges related to the aforementioned incident. On July 14, 2015,
Appellant entered into an open guilty plea to certain charges at all three docket
numbers.1 On September 18, 2015, Appellant was sentenced to an aggregate
term of 20 to 40 years of incarceration to be followed by 15 years of probation.
On October 5, 2015, Appellant pro se filed a motion to withdraw his
guilty plea, and on October 29, 2015, Appellant filed a motion for appointment
of counsel. No action was taken on Appellant’s motion for appointment of
counsel, and on March 9, 2016, the clerk of courts entered an order denying
by operation of law Appellant’s motion to withdraw his guilty plea.
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1 Appellant pleaded guilty to possessing a firearm with the manufacturer’s
number altered (CP-51-CR-0013142-2013), aggravated assault with respect
to Hernandez (CP-51-CR-0013144-2013), and carrying a firearm without a
license and attempted murder with respect to Lopez (CP-51-CR-0013145-
2013).
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On August 26, 2016, Appellant pro se filed a timely petition pursuant
to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Counsel
was appointed, and on March 12, 2017, counsel filed an amended petition
requesting the reinstatement of Appellant’s right to file post-sentence motions
and direct appeal nunc pro tunc. On January 19, 2018, the PCRA court
granted in part and denied in part Appellant’s PCRA petition. Specifically, the
PCRA court permitted Appellant to file a direct appeal nunc pro tunc, but
denied Appellant the right to file a post-sentence motion.2
Appellant timely filed a notice of appeal.3 The trial court ordered
Appellant to file a concise statement of errors complained of on appeal, and
counsel for Appellant filed a statement of intent to file an Anders brief. See
Pa.R.A.P. 1925(c)(4). The trial court filed a responsive opinion.
On appeal, Appellant’s counsel filed both an Anders brief and a
petition to withdraw as counsel. Accordingly, the following principles guide
our review of this matter.
Direct appeal counsel seeking to withdraw under Anders
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
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2This order is not included in the certified record; however, the text appears
on the docket sheet.
3This appeal was filed prior to the Supreme Court’s June 1, 2018 decision in
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018) (holding that this Court
must quash an appeal where a single order disposes of multiple cases and an
appellant has filed only one notice of appeal instead of separate notices of
appeal for each case).
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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
right to retain new counsel, proceed pro se or raise any additional
points worthy of this Court’s attention.
If counsel does not fulfill the aforesaid technical
requirements of Anders, this Court will deny the petition to
withdraw and remand the case with appropriate instructions (e.g.,
directing counsel either to comply with Anders or file an
advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
petition and brief satisfy Anders, we will then undertake our own
review of the appeal to determine if it is wholly frivolous. If the
appeal is frivolous, we will grant the withdrawal petition and affirm
the judgment of sentence. However, if there are non-frivolous
issues, we will deny the petition and remand for the filing of an
advocate’s brief.
Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)
(citations omitted). Our Supreme Court has clarified portions of the Anders
procedure:
[I]n the Anders brief that accompanies court-appointed counsel’s
petition to withdraw, counsel must: (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.
Based upon our examination of counsel’s petition to withdraw and
Anders brief, we conclude that counsel has complied substantially with the
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technical requirements set forth above.4 Therefore, we now have the
responsibility “to 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).
On appeal, counsel presents two questions which arguably support
Appellant’s appeal: 1) whether “the sentence imposed upon [Appellant] by the
[trial] court [was] manifestly excessive,” and 2) whether Appellant should “be
permitted to withdraw his guilty plea.” Anders Brief at 6.
Appellant’s first claim involves a challenge to the discretionary aspects
of his sentence, and we bear in mind the following.
An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Rather, an
appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction. We determine whether the
appellant has invoked our jurisdiction by considering the following
four factors:
(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).
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4Appellant has not filed a response to counsel’s petition. In addition, despite
being granted an extension of time to do so, the Commonwealth has not filed
a brief on appeal.
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Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)
(some citations omitted).
Here, Appellant timely a filed notice of appeal. However, our review of
the record reveals that Appellant did not properly preserve this issue at
sentencing or by filing a post-sentence motion.5 Accordingly, Appellant has
not preserved this issue for our review. See Commonwealth v. Rhoades, 8
A.3d 912, 915 (Pa. Super. 2010) (stating that an appellant waives for appeal
issues challenging the discretionary aspects of his sentence where he does not
raise them at sentencing or in a post-sentence motion).
Based upon the foregoing, we agree with counsel that a challenge to the
discretionary aspects of Appellant’s sentence is frivolous. See
Commonwealth v. Kalichak, 943 A.2d 285, 291 (Pa. Super. 2008) (holding
that when an issue has been waived, “pursuing th[e] matter on direct appeal
is frivolous”). Thus, Appellant is not entitled to relief.
We now turn to Appellant’s second issue regarding the validity of his
guilty plea. As with a challenge to the discretionary aspects of his sentence,
Appellant was required to file a motion to withdraw his guilty plea within ten
days after his judgment of sentence was imposed. See Commonwealth v.
Lincoln, 72 A.3d 606, 609-10 (Pa. Super. 2013) (“A defendant wishing to
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5 In his amended PCRA petition, counsel specifically requested that the PCRA
court permit him to file a post-sentence motion, but the PCRA court denied
that request.
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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.”).
Because Appellant’s judgment of sentence was imposed on September
18, 2015, he had until September 28, 2015, to file timely a post-sentence
motion. Here, Appellant filed pro se a motion to withdraw his guilty plea on
October 5, 2018,6 which was one week late.7 Because Appellant did not timely
file a post-sentence motion challenging the validity of his guilty plea, he has
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6 Appellant dated his pro se motion September 30, 2015. Thus, even if we
were to conclude that this date was sufficient to establish the date Appellant
delivered this motion to prison authorities under the prisoner-mailbox rule,
Appellant’s motion was still two days late. See Commonwealth v. Jones,
700 A.2d 423 (Pa. 1997) (holding that a document is deemed to be filed on
the date an incarcerated prisoner deposits the document with prison
authorities or places it in the prison mailbox).
7 At the time Appellant filed this post-sentence motion, he appears to have
still been represented by counsel. To the extent Appellant was still
represented by counsel at this juncture, this late-filed motion was a nullity.
See Commonwealth v. Nischan, 928 A.2d 349, 355 (pointing out that a
defendant has “no right to file a pro se motion” where “he [or she] was
represented by counsel” and any pro se post-sentence motion that was filed
was a “nullity”). Accordingly, the clerk of courts should have forwarded this
motion to counsel pursuant to Pa.R.Crim.P. 576(A)(4) (“In any case in which
a defendant is represented by an attorney, if the defendant submits for filing
a written motion, notice, or document that has not been signed by the
defendant’s attorney, the clerk of courts shall accept it for filing, time stamp
it with the date of receipt and make a docket entry reflecting the date of
receipt, and place the document in the criminal case file. A copy of the time
stamped document shall be forwarded to the defendant’s attorney and the
attorney for the Commonwealth within 10 days of receipt.”). It is not clear
whether the clerk of courts complied with this mandate. In any event, at that
juncture, even if the clerk of courts did comply, the procedure for
reinstatement of Appellant’s right to file a post-sentence motion was to file
timely a PCRA petition. Appellant did that on August 26, 2016.
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waived this issue for our review, and we agree with counsel that it is frivolous.
Commonwealth v. Kinney, 157 A.3d 968 (Pa. Super. 2017) (holding
challenges to plea agreement are waived on appeal where Kinney failed to file
a post-sentence motion); Kalichak, supra.
Moreover, we have conducted “a simple review of the record” and have
found no “arguably meritorious issues that counsel, intentionally or not,
missed or misstated.” Dempster, 187 A.3d at 272. Accordingly, 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: 6/25/19
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