J-S80016-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CODY ALLEN BREINER
Appellant No. 701 MDA 2016
Appeal from the Judgment of Sentence Entered March 28, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No: CP-06-CR-0005748-2015
BEFORE: LAZARUS, STABILE, and RANSOM, JJ.
MEMORANDUM BY STABILE, J.: FILED DECEMBER 23, 2016
Appellant Cody Allen Breiner appeals from the March 28, 2016
judgment of sentence entered in the Court of Common Pleas of Berks
County (“trial court”), following his guilty plea to receiving stolen property
and firearms not to be carried without a license.1 Appellant’s counsel has
filed a petition to withdraw, alleging that this appeal is wholly frivolous, and
filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). For the reasons
set forth below, we affirm Appellant’s judgment of sentence, and grant
counsel’s petition to withdraw.
____________________________________________
1
18 Pa.C.S.A. §§ 3925(a) and 6106(a)(1), respectively.
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The facts and procedural history of this case are undisputed. Briefly,
Appellant entered into a negotiated guilty plea to the above-referenced
offenses and the trial court sentenced him to an aggregate term of 364 to
728 days’ imprisonment,2 followed by 5 years of probation on March 28,
2016. Appellant did not file any post-sentence motions. This timely appeal
followed.3 After this appeal was filed, on May 25, 2015, Appellant’s counsel
filed a nunc pro tunc post-sentence motion seeking the withdrawal of his
guilty plea.4
On the same day, instead of filing a court-ordered Pa.R.A.P. 1925(b)
statement of errors complained of on appeal, Appellant’s counsel 5 filed a
statement of intent to file an Anders brief under Pa.R.A.P. 1925(c)(4).6
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2
Appellant received a credit of 143 days for time served.
3
Although Appellant’s notice of appeal is time-stamped April 28, 2018, the
envelope containing the notice is dated April 26, 2016. Accordingly, we
conclude that, pursuant to the “prisoner mailbox rule,” Appellant notice of
appeal was filed on April 26, 2016. See Commonwealth v. Wilson, 911
A.2d 942, 944 (Pa. Super. 2006) (recognizing that under the “prisoner
mailbox rule” a document is deemed filed when placed in the hands of prison
authorities for mailing).
4
On June 6, 2016, the trial court permitted Appellant to file the nunc pro
tunc post-sentence motion to withdraw the guilty plea, but denied him relief
on the merits.
5
Because of a conflict of interest, the trial court appointed Abby Rigdon,
Esquire, as conflict counsel to represent Appellant on this appeal.
6
Rule 1925(c)(4) provides:
In a criminal case, counsel may file of record and serve on the
judge a statement of intent to file an [Anders] brief in lieu of
filing a Statement. If, upon review of the [Anders] brief, the
appellate court believes that there are arguably meritorious
(Footnote Continued Next Page)
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Appellant’s counsel noted Appellant intended to raise ineffectiveness claims
that could not be reviewed on direct appeal. On June 22, 2016, the trial
court issued a two-page Pa.R.A.P. 1925(a) opinion, concluding that no
meritorious issues exist for purposes of direct appeal.
On July 29, 2016, Appellant’s counsel filed in this Court a motion to
withdraw as counsel and filed an Anders brief, wherein counsel raises two
issues for our review:
[I.] Did the trial court err in denying the post sentence motion to
withdraw the guilty plea?
[II.] Was trial counsel ineffective at the guilty plea and
sentencing hearing and by failing to file post sentence motions?
Anders Brief at 5.
When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first examining counsel’s petition to
withdraw. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super.
2007) (en banc). It is well-established that, in requesting a withdrawal,
counsel must satisfy the following procedural requirements: 1) petition the
court for leave to withdraw stating that, after making a conscientious
examination of the record, counsel has determined that the appeal would be
_______________________
(Footnote Continued)
issues for review, those issues will not be waived; instead, the
appellate court may remand for the filing of a Statement, a
supplemental opinion pursuant to Rule 1925(a), or both. Upon
remand, the trial court may, but is not required to, replace
appellant’s counsel.
Pa.R.A.P. 1925(c)(4).
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frivolous; 2) provide a copy of the brief to the defendant; and 3) advise the
defendant that he or she has the right to retain private counsel, proceed pro
se or raise additional arguments that the defendant considers worthy of the
court’s addition. Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super.
2009).
Instantly, counsel’s petition to withdraw from representation provides
that counsel reviewed the record and concluded that the appeal is frivolous.
Furthermore, counsel notified Appellant that she was seeking permission to
withdraw and provided Appellant with copies of the petition to withdraw and
his Anders brief. Counsel also advised Appellant of his right to retain new
counsel, proceed pro se, or raise any additional points he deems worthy of
this Court’s attention. Accordingly, we conclude that counsel has satisfied
the procedural requirements of Anders.
We next must determine whether counsel’s Anders brief complies with
the substantive requirements of Santiago, wherein our Supreme Court
held:
[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. Here, our review of counsel’s brief indicates
that she has complied with the briefing requirements of Santiago. We,
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therefore, conclude that counsel has satisfied the minimum requirements of
Anders/Santiago.
Once counsel has met her obligations, “it then becomes the
responsibility of the reviewing court to make a full examination of the
proceedings and make an independent judgment to decide whether the
appeal is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5. Thus,
we now turn to the merits of Appellant’s appeal.
Appellant first argues that the trial court erred in denying his post-
sentence motion to withdraw a guilty plea. Before we may discuss the
merits of Appellant’s claim, we must determine whether the trial court had
jurisdiction to permit the nunc pro tunc filing of the post-sentence motion to
withdraw the guilty plea. As noted earlier, Appellant here failed to file any
post-sentence motions within 10 days from the date of sentencing, i.e., by
April 7, 2016. Instead, Appellant’s counsel filed a nunc pro tunc motion to
withdraw the negotiated guilty plea on May 25, 2015, almost one month
after the notice of appeal was filed and nearly two months after the
imposition of sentence. We recently explained:
[A] post-sentence motion nunc pro tunc may toll the appeal
period, but only if two conditions are met. First, within 30 days
of imposition of sentence, a defendant must request the trial
court to consider a post-sentence motion nunc pro tunc. The
request for nunc pro tunc relief is separate and distinct from the
merits of the underlying post-sentence motion. Second, the trial
court must expressly permit the filing of a post-sentence
motion nunc pro tunc, also within 30 days of imposition of
sentence.
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Commonwealth v. Capaldi, 112 A.3d 1242, 1244 (Pa. Super. 2015)
(emphasis in original) (citation and quotation marks omitted); see 42
Pa.C.S.A. § 5505 (“Except as otherwise provided or prescribed by law, a
court upon notice to the parties may modify or rescind any order within 30
days after its entry, notwithstanding the prior termination of any term of
court, if no appeal from such order has been taken or allowed.”). Here,
Appellant filed his nunc pro tunc post-sentence motion nearly 60 days after
sentencing and almost 30 days after Appellant filed the notice of appeal.
Accordingly, the trial court did not have jurisdiction to consider the nunc pro
tunc post-sentence motion.
Next, Appellant argues that his trial counsel rendered ineffective
assistance. We, however, decline to consider the ineffectiveness claims at
this juncture based on our Supreme Court’s decision in Commonwealth v.
Holmes, 79 A.3d 562 (Pa. 2013). In Holmes, our Supreme Court
reaffirmed its prior holding in Commonwealth v. Grant, 813 A.2d 726 (Pa.
2002), that, absent certain circumstances, claims of ineffective assistance of
counsel should be deferred until collateral review under the Post Conviction
Relief Act (PCRA). See Holmes, 79 A.3d at 576. The specific circumstances
under which ineffectiveness claims may be addressed on direct appeal are
not present in the instant case. See id. at 577-78 (holding that the trial
court may address claims of ineffectiveness where they are “both
meritorious and apparent from the record so that immediate consideration
and relief is warranted,” or where the appellant’s request for review of
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“prolix” ineffectiveness claims is “accompanied by a knowing, voluntary, and
express waiver of PCRA review”). Accordingly, Appellant must raise his
ineffectiveness claims in a timely-filed PCRA petition. We, however, express
no opinion on the merits of such effectiveness claim.
We have conducted an independent review of the record and
addressed Appellant’s arguments properly before us on direct appeal. We
agree with counsel that the issues Appellant seeks to litigate in this appeal
are wholly frivolous. Also, we do not discern any non-frivolous issues that
Appellant could have raised. We, therefore, grant counsel’s petition to
withdraw and affirm the judgment of sentence.
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2016
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