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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
C. ARTHUR BENNETT, :
:
Appellant : No. 2948 EDA 2014
Appeal from the Judgment of Sentence entered on September 8, 2014
in the Court of Common Pleas of Delaware County,
Criminal Division, No. CP-23-CR-0004121-2014
BEFORE: GANTMAN, P.J., ALLEN and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED APRIL 16, 2015
C. Arthur Bennett (“Bennett”) appeals from the judgment of sentence
imposed following his nolo contendere plea to one count of possession of a
controlled substance (marijuana) with the intent to deliver (“PWID”).1
Additionally, Patrick J. Connors, Esquire (“Attorney Connors”), Bennett’s
counsel, has filed an Application to Withdraw as counsel and an
accompanying brief pursuant to Anders v. California, 386 U.S. 738 (1967).
We grant Attorney Connors’s Application to Withdraw and affirm Bennett’s
judgment of sentence.
On September 8, 2014, Bennett tendered a negotiated nolo
contendere plea to PWID, whereupon the Commonwealth recommended a
sentence of time served (approximately one month) to twenty-three months
1
See 35 P.S. § 780-113(a)(30).
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in prison. On that same date, the trial court accepted Bennett’s plea and
sentenced him in accordance with the terms of the plea agreement.
Subsequently, Bennett filed a post-sentence Motion to withdraw his nolo
contendere plea, which the trial court denied. Bennett thereafter filed a
timely Notice of Appeal. In response to the trial court’s Order to file a
Pa.R.A.P. 1925(b) concise statement of matters complained of on appeal,
Attorney Connors filed Statement indicating his intention to file an Anders
brief. Thereafter, Attorney Connors filed an Application to Withdraw as
Bennett’s counsel and an Anders brief.
“When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super. 2010)
(citation omitted). Pursuant to Anders, when counsel believes an appeal is
frivolous and wishes to withdraw from representation, he/she must do the
following:
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record, counsel has
determined the appeal would be frivolous; (2) file a brief
referring to any issues that might arguably support the appeal,
but which does not resemble a no-merit letter; and (3) furnish a
copy of the brief to the defendant and advise him of his right to
retain new counsel, proceed pro se, or raise any additional points
he deems worthy of this Court’s attention.
Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006)
(citation omitted). In Commonwealth v. Santiago, 978 A.2d 349 (Pa.
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2009), our Supreme Court addressed the second requirement of Anders,
i.e., the contents of an Anders brief, and required that the brief
(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. “Once counsel has satisfied the [Anders]
requirements, it is then this Court’s duty to conduct its own review of the
trial court’s proceedings and render an independent judgment as to whether
the appeal is, in fact, wholly frivolous.” Edwards, 906 A.2d at 1228
(citation omitted).
Here, Attorney Connors has complied with each of the requirements of
Anders. Attorney Connors indicates that he conscientiously examined the
record and determined that an appeal would be frivolous. Further, Attorney
Connors’s Anders brief comports with the requirements set forth by the
Supreme Court of Pennsylvania in Santiago. Finally, the record contains a
copy of the letter that Attorney Connors sent to Bennett, advising him of his
right to proceed pro se or retain alternate counsel and file additional claims,
and stating Attorney Connors’s intention to seek permission to withdraw.
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Accordingly, Attorney Connors has complied with the procedural
requirements for withdrawing from representation, and we will determine
whether Bennett’s appeal is wholly frivolous.
The Anders brief filed by Attorney Connors identifies the following
issue for our review: “Whether the sentence imposed on [] Bennett was
harsh and excessive under the circumstances?” Anders Brief at 1
(italicization omitted).
In terms of its effect upon a case, a plea of nolo contendere is treated
the same as a guilty plea. See Commonwealth v. Nelson, 666 A.2d 714,
717 (Pa. Super. 1995). By entering a plea of nolo contendere, a defendant
waives “all defects and defenses except those concerning the jurisdiction of
the court, legality of sentence, and validity of plea.” Id. Legality of
sentence issues occur generally either (1) when a trial court’s traditional
authority to use discretion in the act of sentencing is somehow affected;
and/or (2) when the sentence imposed is patently inconsistent with the
sentencing parameters set forth by the General Assembly. See
Commonwealth v. Foster, 17 A.3d 332, 342 (Pa. 2011). The question of
whether a claim implicates the legality of a sentence presents a pure
question of law. Id. at 340 n.13. Issues relating to the legality of a
sentence are reviewed de novo, and our scope of review is plenary.
Commonwealth v. Infante, 63 A.3d 358, 363 (Pa. Super. 2013).
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Additionally, “when a negotiated plea includes sentencing terms (or,
more properly, the Commonwealth’s commitment to recommend a certain
sentence), the defendant’s knowing and voluntary acceptance of those terms
rightly extinguishes the ability to challenge a sentence the defendant knew
was a proper consequence of his plea.” Commonwealth v. Eisenberg, 98
A.3d 1268, 1277 (Pa. 2014); see also Commonwealth v. Reichle, 589
A.2d 1140, 1141 (Pa. Super. 1991) (stating that where the plea agreement
contains a negotiated sentence which is accepted and imposed by the
sentencing court, there is no authority to permit an excessiveness
challenge).
Here, Bennett’s claim that his sentence is harsh and excessive does
not implicate the jurisdiction of the trial court, the validity of Bennett’s plea,
or the legality of his sentence. See Reichle, 589 A.2d at 1141. Rather, his
claim presents a challenge to the discretionary aspects of his sentence,
which Bennett waived upon the entry of his nolo contendere plea. Id. Thus,
Bennett’s claim is waived. For this reason, we conclude that Bennett’s
appeal is, in fact, wholly frivolous. Accordingly, we affirm his judgment of
sentence and grant Attorney Connors’s Application to Withdraw.
Application to Withdraw as counsel granted. Judgment of sentence
affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/16/2015
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Com. v. Bennett, C.
Combined Opinion