Com. v. Carter, D. ( 2023 )

J-S02028-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DANTE C. CARTER :
:
Appellant : No. 1009 MDA 2022
Appeal From the Judgment of Sentence Entered June 10, 2022
In the Court of Common Pleas of Huntingdon County Criminal Division at
No(s): CP-31-CR-0000598-2020
BEFORE: PANELLA, P.J., OLSON, J., and DUBOW, J.
MEMORANDUM BY OLSON, J.: FILED: MARCH 17, 2023
Appellant, Dante C. Carter, appeals from the judgment of sentence
entered on June 10, 2022, as made final by the denial of Appellant’s
post-sentence motion on June 21, 2022. On this direct appeal, Appellant’s
counsel has filed both a petition for leave to withdraw as counsel and an
accompanying brief pursuant to Anders v. California, 386 U.S. 738 (1967)
and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We conclude
that Appellant’s counsel has complied with the procedural requirements
necessary to withdraw. Moreover, after independently reviewing the record,
we conclude that the instant appeal is wholly frivolous. We, therefore, grant
counsel’s petition for leave to withdraw and affirm Appellant’s judgment of
sentence.
As the trial court explained:
J-S02028-23
[Appellant] is an inmate serving a life sentence in the custody
of the Pennsylvania Department of Corrections. On June 10,
2022, he was convicted, via pleas of nolo contendere, of one
count each of assault by prisoner, strangulation, and
aggravated assault.[1] The charges arose out of an incident
that occurred at SCI-Huntingdon on August 13, 2018, in
which [Appellant] twice engaged in physical combat with
corrections officers. [Appellant] was sentenced on the same
day that he entered his pleas, resulting in a sentence of
84-168 months' incarceration on the first count, 12-24
months' incarceration on the second count, and 15-30
months' incarceration on the third count, to be served
concurrently [with Appellant’s life sentence].
Trial Court Opinion, 8/30/22, at 1 (footnote and some capitalization omitted).
The trial court denied Appellant’s post-sentence motion on June 21,
2022 and Appellant filed a timely notice of appeal. On appeal, Appellant’s
counsel filed a petition for leave to withdraw and counsel accompanied this
petition with an Anders brief.
Before reviewing the merits of this appeal, this Court must first
determine whether counsel has fulfilled the necessary procedural
requirements for withdrawing as counsel. Commonwealth v. Miller, 715
A.2d 1203, 1207 (Pa. Super. 1998).
To withdraw under Anders, counsel must satisfy certain technical
requirements. First, counsel must “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 frivolous.” Miller, 715 A.2d at 1207.
Second, counsel must file an Anders brief, in which counsel:
____________________________________________
1 18 Pa.C.S.A. §§ 2704, 2718(a)(1), and 2702(a)(3), respectively.
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(1) provide[s] a summary of the procedural history and facts,
with citations to the record; (2) refer[s] to anything in the
record that counsel believes arguably supports the appeal;
(3) set[s] forth counsel’s conclusion that the appeal is
frivolous; and (4) state[s] 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.
Finally, counsel must furnish a copy of the Anders brief to his or her
client and advise the client “of [the client’s] right to retain new counsel,
proceed pro se or raise any additional points worthy of this Court’s attention.”
Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007).
If counsel meets all of the above 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; see also
Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en
banc) (holding that the Anders procedure requires this Court to review “the
entire record with consideration first of the issues raised by counsel. . . .
[T]his review does not require this Court to act as counsel or otherwise
advocate on behalf of a party. Rather, it requires us only to conduct a review
of the record to ascertain if[,] on its face, there are non-frivolous issues that
counsel, intentionally or not, missed or misstated. We need not analyze those
issues of arguable merit; just identify them, deny the motion to withdraw, and
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order counsel to analyze them”). It is only when all of the procedural and
substantive requirements are satisfied that counsel will be permitted to
withdraw.
In the case at bar, counsel complied with all of the above procedural
obligations. We must, therefore, review the entire record and analyze whether
this appeal is, in fact, wholly frivolous. Our analysis begins with the claims
raised in the Anders brief:
[1.] Whether the trial court erred in dismissing [Appellant’s]
post-sentence motion in the form of a preliminary objection
of [Appellant] to [the Commonwealth’s] complaint and
criminal procedure?
[2.] Whether the trial court erred in dismissing [Appellant’s]
post-sentence motion in the form of a petition for warrant in
lieu of habeas corpus without a hearing?
[3.] Whether claims of ineffective assistance of counsel
should be presented in a collateral proceeding?
Appellant’s Brief at 3 (some capitalization omitted).
Appellant’s first two claims are grounded in his belief that he, personally,
enjoys sovereign immunity from all criminal prosecution and that the court of
common pleas thus lacked jurisdiction over Appellant’s person. This claim is
frivolous, as Appellant is not a sovereign.
Finally, Appellant claims that his trial counsel was ineffective. This claim
is unreviewable on direct appeal. Commonwealth v. Grant, 813 A.2d 726,
738 (Pa. 2002) (“as a general rule, a [defendant] should wait to raise claims
of ineffective assistance of trial counsel until collateral review”);
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Commonwealth v. Holmes, 79 A.3d 562, 620 (Pa. 2013) (“absent [certain,
specified] circumstances [(that are inapplicable to the case at bar)] claims of
ineffective assistance of counsel are to be deferred to PCRA review; trial courts
should not entertain claims of ineffectiveness upon post-verdict motions; and
such claims should not be reviewed upon direct appeal”). Appellant's
ineffective assistance of counsel claim is thus frivolous.
We have independently considered the issues raised within Appellant’s
brief and we have determined that the claims are frivolous. In addition, after
an independent review of the entire record, we see nothing that might
arguably support this appeal. The appeal is therefore wholly frivolous.
Accordingly, we affirm Appellant’s judgment of sentence and grant counsel’s
petition for leave to withdraw.
Petition for leave to withdraw appearance granted. Judgment of
sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/17/2023
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