Com. v. Sudduth, C. ( 2015 )

J-S36006-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CLAYTON MICHAEL SUDDUTH
Appellant No. 1004 WDA 2014
Appeal from the Judgment of Sentence May 27, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0017328-2013
BEFORE: PANELLA, J., JENKINS, J., and STRASSBURGER, J.*
MEMORANDUM BY PANELLA, J. FILED JULY 27, 2015
Appellant, Clayton Michael Sudduth, appeals from the judgment of
sentence entered on May 27, 2014, after he pled guilty to multiple counts of
sexual abuse of children and other remaining charges. Additionally, his
court-appointed counsel, Brandon P. Ging, Esquire, and Elliott Howsie,
Esquire, have filed an application to withdraw as counsel 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 counsels’ petition to withdraw.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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On November 13, 2013, Sudduth was charged with the following
crimes: Count 1 — criminal solicitation (involuntary deviate sexual
intercourse),1 Count 2 — unlawful contact with a minor,2 Count 3 — sexual
abuse of children (dissemination of photographs),3 Count 4 — sexual abuse
of children (dissemination of photographs),4 Count 5 — sexual abuse of
children (dissemination of photographs),5 Count 6 — sexual abuse of
children (child pornography),6 Count 7 — sexual abuse of children (child
pornography),7 Count 8 — sexual abuse of children (child pornography),8
Count 9 — criminal use of communication facility,9 and Count 10 — criminal
attempt (corruption of minors).10
On May 27, 2014, Sudduth, represented by Owen M. Seman, Esquire,
appeared for a jury trial. Rather than proceed to trial, however, Sudduth and
the Commonwealth entered into a plea agreement. Specifically, the
Commonwealth agreed to withdraw Count 1, Count 2, Count 5, Count 8, and
Count 10. In exchange, Sudduth agreed to plead guilty to the remaining
charges. The parties also agreed to a sentence of imprisonment of not less
____________________________________________
1
18 Pa.C.S.A. § 902(a).
2
18 Pa.C.S.A. § 6318(a)(1).
3
18 Pa.C.S.A. § 6312(c).
4
18 Pa.C.S.A. § 6312(c).
5
18 Pa.C.S.A. § 6312(c).
6
18 Pa.C.S.A. § 6312(d).
7
18 PA.C.S.A. § 6312(d).
8
18 Pa.C.S.A. § 6312(d).
9
18 Pa.C.S.A. § 7512(a).
10
18 Pa.C.S.A. § 901(a).
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than two to four years and to a period of probation to be set by the trial
court.
After conducting an extensive oral colloquy with Sudduth, the trial
court accepted the guilty plea. Sudduth waived his right to a pre-sentence
investigation report and the trial court immediately sentenced him as
follows: to a term of imprisonment of not less than two to four years at
Count 3; three years’ probation at Count 4; three years’ probation at Count
6; three years’ probation at Count 7; and to no further penalty at Count 9.
Attorney Seman did not file a post-sentence motion on Sudduth’s
behalf. Attorney Ging and Attorney Howsie timely filed a notice of appeal on
Sudduth’s behalf.
After two extensions, due to the unavailability of the guilty
plea/sentencing transcript, and after a conscientious review of the record
and extensive legal research, appointed counsel concluded there were no
non-frivolous issues to raise on direct appeal. Accordingly, they filed a
motion to withdraw as counsel with this Court and submitted an Anders
brief in support thereof.
When court-appointed counsel seek to withdraw from representation
on appeal, counsel must meet the following requirements.
[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
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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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Once counsel
have met their 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.” Id. at 355 n.5 (citation omitted).
Counsel have substantially complied with the technical requirements of
Anders as articulated in Santiago. Additionally, counsel confirm that they
sent a copy of the Anders brief to Sudduth, as well as a letter explaining to
Sudduth that he has the right to proceed pro se or the right to retain new
counsel. Counsel have appropriately appended a copy of the letter to the
motion to withdraw. Sudduth has not filed a response to the petition.
We will now proceed to examine the issues counsel have set forth in
the Anders brief. Counsel identifies three issues for our review.
“Settled Pennsylvania law makes clear that by entering a guilty plea,
the defendant waives his right to challenge on direct appeal all non-
jurisdictional defects except the legality of the sentence and the validity of
the plea.” Commonwealth v. Lincoln, 72 A.3d 606, 609 (Pa. Super. 2013),
appeal denied, 87 A.3d 319 (Pa. 2014) (citation omitted).
Sudduth’s first issue challenges the validity of his guilty plea. In order
to preserve an issue related to the guilty plea, an appellant must either
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“object[ ] at the sentence colloquy or otherwise rais[e] the issue at the
sentencing hearing or through a post-sentence motion.” Commonwealth v.
Tareila, 895 A.2d 1266, 1270 n.3 (Pa. Super. 2006) (citation omitted;
brackets in original). Here, Sudduth did neither. Therefore, this issue is
waived. “Where an appellant fails to challenge his guilty plea in the trial
court, he may not do so on appeal.” Id. (citation omitted).
Since Sudduth failed to preserve this issue prior to this appeal, he
cannot challenge for the first time on direct appeal the validity of his guilty
plea. See Pa.R.A.P. 302(a). Thus, we agree with counsels’ assessment that
this claim is frivolous. See Commonwealth v. Hankerson, ___ A.3d ___,
___, 2015 WL 3549969, *4 (Pa. Super., filed June 8, 2015) (waived claim is
frivolous).
Next, Sudduth challenges the legality of his sentence. He somehow
believes that the sentence imposed on each count exceeds the applicable
statutory maximums. This claim is patently frivolous.
“An illegal sentence is one that exceeds the statutory limits.”
Commonwealth v. Bradley, 834 A.2d 1127, 1131 (Pa. 2003) (citations
omitted).
Sudduth was sentenced at five charges, each charge being graded as a
felony of the third degree. See N.T., Sentencing, 5/27/14, at 13-15. The
statutory maximum sentence for a third-degree felony is “a term which shall
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be fixed by the court at not more than seven years.” 18 Pa.C.S.A. §
1103(3).
None of the sentences imposed runs afoul of Section 1103(3).
Therefore, we conclude there is no basis upon which to challenge the legality
of Sudduth’s sentence and we agree with counsel that this issue is frivolous.
Finally, we consider a challenge to the discretionary aspects of
Sudduth’s sentence. This presents another waived claim. Sudduth never
preserved this issue in the lower court. See Commonwealth v. Shugars,
895 A.2d 1270, 1273-1274 (Pa. Super. 2006) (describing how discretionary
aspects of sentencing claim must be preserved). Therefore, this claim is
waived. See id., at 1274. See also Commonwealth v. LeBarre, 961 A.2d
176, 178 (Pa. Super. 2008) (“We find that because Appellant did not raise
his discretionary aspects claim below, it is waived.”). Thus, we agree with
counsels’ assessment that this claim is frivolous. See Hankerson, ___ A.3d
at ___, 2015 WL 3549969, *4.
After examining the issues contained in the Anders brief and
undertaking our independent review of the record, we concur with counsel’s
assessment that the appeal is wholly frivolous.
Judgment of sentence affirmed. Petition to withdraw as counsel granted.
Judgment Entered.
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Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/27/2015
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