Com. v. Martin, T. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
TRACY MARTIN
Appellant No. 3789 EDA 2016
Appeal from the Judgment of Sentence September 13, 2016
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0007347-2015
BEFORE: PANELLA, J., MOULTON, J., and RANSOM, J.
MEMORANDUM BY PANELLA, J. FILED OCTOBER 27, 2017
Appellant, Tracy Martin, pled guilty to one count each of insurance
fraud and receiving stolen property. The trial court proceeded to impose the
negotiated sentence of 9 to 23 months of intermediate punishment. In this
appeal, Martin’s court-appointed counsel, Patrick J. Connors, Esquire, seeks
permission to withdraw as counsel. As such, he has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009). After careful review, we affirm the
judgment of sentence and grant Attorney Connors permission to withdraw.
Attorney Connors has complied with the mandated procedure for
withdrawing as counsel. See Santiago, 978 A.2d at 361 (articulating
Anders requirements); Commonwealth v. Daniels, 999 A.2d 590, 594
(Pa. Super. 2010) (providing that counsel must inform client by letter of
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rights to proceed once counsel moves to withdraw and append a copy of the
letter to the petition). Martin has not filed a response to counsel’s petition to
withdraw.1
Counsel has identified one issue that Martin believes entitles him to
relief. Martin wishes to challenge the sentence imposed by the trial court.
We begin by observing that the maximum sentence imposed was not above
the statutory maximum for his conviction for insurance fraud under 18
Pa.C.S.A. § 4117(a)(2). See 18 Pa.C.S.A. § 4117(d) (“An offense under
subsection (a)(1) through (8) is a felony of the third degree.”); 18 Pa.C.S.A.
§ 1103(3) (setting maximum sentence for felony of the third degree at
seven years). Nor is there any indication that a mandatory minimum
sentence was imposed. Martin has not identified any other possible issue
with the legality of his sentence.
We therefore turn to the discretionary aspects of his sentence. Here,
we note that since Martin negotiated this sentence as part of his guilty plea
agreement, he is precluded from challenging the discretionary aspects of his
sentence. See Commonwealth v. O’Malley, 957 A.2d 1265, 1267 (Pa.
Super. 2008). Furthermore, this challenge is waived, see Commonwealth
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1 Martin did file a response when Attorney Connors filed his notice of intent
to file an Anders brief in lieu of a statement of matters complained of on
appeal in a related appeal, docketed at 3864 EDA 2016. In that response,
Martin identified two issues he wished to raise on appeal: the legality of the
sentence imposed and ineffective assistance of counsel. We will address both
issues in this memorandum.
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v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010), as Martin did not challenge
anything other than credit for time served in his post-sentence motion, and
requested that “all other aspects of the sentence to remain the same.” Post-
Sentence Motion, 9/22/16, at ¶6. Thus, we agree with Attorney Connor’s
assessment that any challenge to Martin’s sentence is frivolous.
Next, we address the issue raised by Martin in his pro se response to
Attorney Connors’s notice of intent to file an Anders brief. Martin argues
that both Attorney Connors and another member of the Delaware County
Public Defender’s Office rendered ineffective assistance of counsel.
Generally, claims of ineffectiveness of counsel are not ripe until
collateral review. See Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa.
2013). However, in extraordinary cases where the trial court determines that
the claim of ineffectiveness is “both meritorious and apparent from the
record,” it may exercise its discretion to consider the claim in a post-
sentence motion. Id., at 577.
In Holmes, the Supreme Court of Pennsylvania explicitly identified
ineffectiveness claims as “presumptively reserved for collateral attack[.]”
Id., at 577 n.10. The Court warned against trial courts appointing “new
counsel post-verdict to search for ineffectiveness claims.” Id. Thus, while
the trial court retains discretion in addressing such claims, the presumption
weighs heavily in favor of deferring such claims to collateral review.
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Further, the Court justified the creation of the “meritorious and
apparent from the record” exception by explaining that “[t]he administration
of criminal justice is better served by allowing trial judges to retain the
discretion to consider and vindicate such distinct claims of ineffectiveness[.]”
Id., at 577 (emphasis added). Most importantly, the Court required an
express waiver of the right to file a first, timely PCRA petition. See id., at
579.
Martin failed to expressly forgo his right to file a timely, first PCRA
petition. Furthermore, this issue was never presented to the trial court in
any filing. It is not even clear, from Martin’s handwritten filing, what Martin
believes was ineffective about the Public Defender’s office’s representation.
For all these reasons, we conclude that Martin’s claim that counsel was
ineffective would be frivolous in this appeal from his judgment of sentence.
As a result, we agree with Attorney Connors’s assessment that this
appeal is wholly frivolous. We therefore grant his petition to withdraw, and
affirm the judgment of sentence.
Judgment of sentence affirmed. Permission to withdraw as counsel
granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/27/2017
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