Com. v. McDaniels, A. ( 2021 )

J-A13014-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDRE MCDANIELS :
:
Appellant : No. 2026 EDA 2020
Appeal from the Judgment of Sentence Entered August 19, 2020
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0000266-2018
BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: Filed: June 3, 2021
Appellant, Andre McDaniels, appeals from the judgment of sentence of
8 to 20 years’ incarceration, imposed after he entered a negotiated guilty plea
to statutory sexual assault, 18 Pa.C.S. § 3122.1(b), and corruption of minors
(COM), 18 Pa.C.S. § 6301(a)(1)(ii). On appeal, Appellant seeks to challenge
the legality of his sentence. Additionally, Appellant’s counsel, Stuart R.
Crichton, Esq., seeks to withdraw his representation of Appellant 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
Appellant’s judgment of sentence and grant counsel’s petition to withdraw.
The facts of Appellant’s underlying convictions are not pertinent to the
issue he seeks to raise on appeal. We need only note that Appellant was
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-A13014-21
charged with ten counts each of rape, involuntary deviate sexual intercourse,
aggravated indecent assault, and statutory sexual assault, as well as single
counts of endangering the welfare of a child and COM. In exchange for his
pleading guilty to one count each of statutory sexual assault and COM, the
Commonwealth withdrew the remaining charges. The parties agreed that
Appellant would be sentenced to 8 to 20 years’ incarceration for statutory
sexual assault, and no further penalty for COM. Appellant entered this
negotiated guilty plea on October 21, 2019. His sentencing was deferred
pending an evaluation by the Sexual Offenders Assessment Board (SOAB) of
whether Appellant qualifies as a Sexually Violent Predator (SVP). On August
19, 2020, following an SVP hearing, Appellant was deemed to be an SVP. He
was sentenced that same day to the agreed-upon term of incarceration.
On August 26, 2020, Appellant filed a timely post-sentence motion,
which was denied. He then filed a timely notice of appeal. When the court
ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal, Appellant’s counsel responded by filing a Rule
1925(c)(4) statement of his intent to file an Anders brief and petition to
withdraw. Accordingly, the court did not issue a Rule 1925(a) opinion in this
case.
On March 9, 2021, Attorney Crichton filed with this Court a petition to
withdraw from representing Appellant. That same day, counsel also filed an
Anders brief, discussing the following issue that Appellant seeks to raise on
appeal: “Whether the sentence imposed by the [c]ourt, pursuant to the
-2-
J-A13014-21
negotiated plea agreement, was illegal?” Anders Brief at 63. Attorney
Crichton concludes that this issue is frivolous, and that Appellant has no other,
non-frivolous claims he could pursue herein. Accordingly,
this Court must first pass upon counsel’s petition to withdraw
before reviewing the merits of the underlying issues presented by
[the appellant]. Commonwealth v. Goodwin, 928 A.2d 287,
290 (Pa. Super. 2007) (en banc).
Prior to withdrawing as counsel on a direct appeal under Anders,
counsel must file a brief that meets the requirements established
by our Supreme Court in Santiago. The brief 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. Counsel also must provide a copy of
the Anders brief to his client. Attending the brief must be a letter
that advises the client of his right to: “(1) retain new counsel to
pursue the appeal; (2) proceed pro se on appeal; or (3) raise any
points that the appellant deems worthy of the court[’]s attention
in addition to the points raised by counsel in the Anders brief.”
Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super.
2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).
Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014). After
determining that counsel has satisfied these technical requirements of Anders
and Santiago, this Court must then “conduct a simple review of the record to
ascertain if there appear[s] on its face to be arguably meritorious issues that
-3-
J-A13014-21
counsel, intentionally or not, missed or misstated.” Commonwealth v.
Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en banc).
In this case, Attorney Crichton’s Anders brief substantially complies
with the above-stated requirements. Namely, he includes a summary of the
relevant factual and procedural history, he refers to portions of the record that
could arguably support Appellant’s claim, and he sets forth his conclusion that
Appellant’s appeal is frivolous. He also explains his reasons for reaching that
determination, and supports his rationale with citations to the record and
pertinent legal authority. Additionally, Attorney Crichton states in his petition
to withdraw that he has supplied Appellant with a copy of his Anders brief,
and he attaches a letter directed to Appellant in which he informs Appellant of
the rights enumerated in Nischan. Accordingly, counsel has complied with
the technical requirements for withdrawal. We will now independently review
the record to determine if Appellant’s issue is frivolous, and to ascertain if
there are any other, non-frivolous claims he could pursue on appeal.
According to Attorney Crichton, Appellant seeks to argue “that the
sentence imposed was illegal” because “he was entitled to a sentence within
the standard [range] sentencing guideline[s].” Anders Brief at 6. As counsel
notes, Appellant’s statutory sexual assault offense is graded as a felony of the
first degree. See 18 Pa.C.S. § 3122.1(b) (“A person commits a felony of the
first degree when that person engages in sexual intercourse with a
complainant under the age of 16 years and that person is 11 or more years
older than the complainant and the complainant and the person are not
-4-
J-A13014-21
married to each other.”). Thus, the statutory maximum term of incarceration
for that offenses is 20 years’ imprisonment. See 18 Pa.C.S. § 1103(1).
Because Appellant’s sentence of 8 to 20 years’ incarceration is within the
statutory maximum, it is not illegal. See Commonwealth v. Infante, 63
A.3d 358, 363 (Pa. Super. 2013) (“[A] sentence that exceeds the statutory
maximum is illegal.”) (citation omitted; emphasis added).
We also note that Appellant cannot claim that his sentence is excessive,
as it was consistent with the terms of his negotiated plea agreement. Our
Court has declared that, “when the plea agreement contains a negotiated
sentence which is accepted and imposed by the sentencing court, there is no
authority to permit a challenge to the discretionary aspects of that sentence.”
Commonwealth v. Morrison, 173 A.3d 286, 290 (Pa. Super. 2017) (citation
omitted).
Accordingly, we agree with Attorney Crichton that Appellant’s
sentencing claim is frivolous. Additionally, our review of the record reveals no
other, non-frivolous claims that Appellant could raise herein.1 Thus, we affirm
his judgment of sentence and grant counsel’s petition to withdraw.
____________________________________________
1 We observe that in the post-sentence motion filed by Attorney Crichton, he
asserted that Appellant wished to argue “that the [c]ourt erred in designating
him as a[n SVP],” and “that he was pressured by counsel to sign the Guilty
Plea Colloquy.” Post-Sentence Motion, 8/26/20, at 2 (unnumbered). We
reprimand counsel for failing to discuss these claims in his Anders brief.
Nevertheless, we conclude that they are frivolous. First, Appellant waived his
challenge to his SVP designation by failing to offer any elaboration on why or
how the court erred in deeming him an SVP. Second, Appellant’s claim that
(Footnote Continued Next Page)
-5-
J-A13014-21
Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/3/21
____________________________________________
counsel pressured him into pleading guilty challenges the effectiveness of
counsel’s representation. In Commonwealth v. Holmes, 79 A.3d 562, 576
(Pa. 2013), our Supreme Court reaffirmed its prior holding in
Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), that, absent certain
circumstances not present in this case, claims of ineffective assistance of
counsel should be deferred until collateral review under the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Consequently, it would be
frivolous for Appellant to raise his ineffectiveness claim, or his waived SVP
challenge, in this direct appeal.
-6-