Com. v. Hoppes, K.

J-S18016-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KYLE MICHAEL HOPPES :
:
Appellant : No. 1809 MDA 2018
Appeal from the Judgment of Sentence Entered June 15, 2017
In the Court of Common Pleas of Schuylkill County Criminal Division at
No(s): CP-54-CR-0001972-2016
BEFORE: BOWES, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY NICHOLS, J.: FILED JUNE 18, 2019
Appellant Kyle Michael Hoppes appeals from the judgment of sentence
imposed after a jury convicted him of receiving stolen property, firearms not
to be carried without a license, possession of drug paraphernalia, and two
counts each of possession of a controlled substance and possession of a
firearm with altered manufacturer’s number.1 Appellant’s counsel has filed a
petition to withdraw and an Anders/Santiago brief.2 We affirm and grant
counsel’s petition to withdraw.
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* Former Justice specially assigned to the Superior Court.
118 Pa.C.S. §§ 3925(a); 6106(a)(1); 35 P.S. § 780-113(a)(32); (a)(16); and
18 Pa.C.S. § 6110.2(a), respectively.
2Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
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The trial court summarized the underlying procedural history of this
matter as follows:
Following a jury trial on April 10, 2017, [Appellant] was found
guilty of [the foregoing offenses]. Two days prior to the
sentencing hearing, [Appellant] filed a pro se motion to terminate
continued representation by his trial counsel, Andrew Zelonis,
Esquire [(Attorney Zelonis)], and to receive appointed counsel.
The court directed that the issue would be heard immediately
preceding the sentencing hearing.
At the time of the hearing, [Appellant’s] motion to terminate his
trial counsel’s representation was granted and the sentencing
hearing was continued to allow [Appellant] time to obtain private
counsel or apply for counsel from the Schuylkill County Public
Defender’s Office. Attorney Michael Stine[, Esquire (Attorney
Stine)] of the Schuylkill County Public Defender’s Office
subsequently undertook [Appellant’s] representation.
At the sentencing hearing on June 15, 2017, at which Attorney
Stine represented [Appellant], the court directed, inter alia, that
[Appellant] serve an aggregate forty-eight months to ninety-six
months term of incarceration followed by three years[] probation.[]
No direct appeal followed.
On May 22, 2018, [Appellant] filed a motion for post-conviction
collateral relief [under the Post Conviction Relief Act3 (PCRA)] in
which he complained about the representation he had received
from both Attorneys Zelonis and Stine. Attorney Robert Reedy[,
Esquire (Attorney Reedy)] was appointed to represent [Appellant]
in the [PCRA] proceedings and he was given the opportunity to
file any desired counseled amendments to [Appellant]’s pro se
filing. Attorney Reedy filed an amended motion for [Appellant] on
July 12, 2018 and a hearing was held before the court on August
3, 2018.
Essentially, [Appellant] claimed that Attorney Zelonis had been
ineffective in not pursuing a pre-trial challenge to a vehicle search
which ultimately led police to discover evidence of crime and by
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3 42 Pa.C.S. §§ 9541-9546.
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withdrawing a suppression motion he had filed for [Appellant].[4]
Additionally, [Appellant] contended that Attorney Stine had been
ineffective in failing to file a direct appeal for him following the
sentencing hearing despite [Appellant]’s requests that an appeal
be filed. After hearing evidence and receiving argument on the
motion, the court granted [Appellant] relief by allowing him to file
a direct appeal nunc pro tunc.
On November 2, 2018, [Appellant] filed the pending direct appeal
to the Pennsylvania Superior Court from the underlying
sentencing order of June 15, 2017. Thereafter, [Appellant] was
directed to and did file a statement of matters complained of on
appeal. In his statement filed November 30, 2018, [Appellant]
does not set forth issues related to errors this court allegedly
made prior to, during or after sentencing. Rather, he simply
identifies manners by which his trial counsel, Attorney Zelonis,
allegedly had provided ineffective representation—namely, by
failing “to challenge the probable cause to search the locked glove
box of the car” and by having [Appellant] withdraw the
suppression motion.
As noted in this court’s order of October 10, 2018 which granted
[Appellant] the right to file a direct appeal nunc pro tunc, the
issues collateral to the direct appeal—namely, those involving
alleged ineffectiveness of Attorney Zelonis—were not being
addressed by the court as it was not found the appropriate time
to do so because the case was being returned to the direct appeal
stage nunc pro tunc. [Appellant]’s ability to raise collateral issues
at the proper time, if so desired, had not been impacted by the
October 10, 2018 order. In his November 30, 2018 statement of
complaints, [Appellant] does not contend that this court erred in
so determining and it is believed that pursuant to controlling
appellate authority, it did not do so. As no issues, however,
pertinent to a direct appeal have been identified in the statement
of matters complained of on appeal, none can be addressed
herein.
Trial Ct. Op., 12/17/18, at 1-4 (citation omitted).
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4 At the conclusion of the PCRA hearing, the trial court noted: “The only
evidence heard about the merits of the suppression . . . was [Attorney]
Zelonis’ opinion that it did not have merit.” See N.T. PCRA Hr’g, 8/3/18, at
61-62.
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“When faced with a purported Anders brief, this Court may not review
the merits of any possible underlying issues without first examining counsel’s
request to withdraw.” Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa.
Super. 2008) (citation omitted). Counsel must comply with the technical
requirements for petitioning to withdraw by (1) filing a petition for leave to
withdraw stating that, after making a conscientious examination of the record,
counsel has determined that the appeal would be frivolous; (2) providing a
copy of the brief to Appellant; and (3) advising Appellant that he has the right
to retain private counsel, proceed pro se, or raise additional arguments that
Appellant considers worthy of the court’s attention. See Commonwealth v.
Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc).
Additionally, counsel must file a brief that meets the requirements
established by the Pennsylvania Supreme Court in Santiago, namely:
(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.
Only after determining that counsel has satisfied these technical
requirements, may this Court “conduct an independent review of the record
to discern if there are any additional, non-frivolous issues overlooked by
counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super.
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2015) (citations and footnote omitted); accord Commonwealth v. Yorgey,
188 A.3d 1190, 1197 (Pa. Super. 2018) (en banc).
Here, Appellant’s counsel has complied with the procedures for seeking
withdrawal by filing a petition to withdraw, sending Appellant a letter
explaining his rights, and supplying Appellant with a copy of the
Anders/Santiago brief. See Goodwin, 928 A.2d at 290. Moreover,
counsel’s Anders/Santiago brief complies with the requirements of
Santiago. Counsel includes a summary of the relevant factual and procedural
history, refers to the portions of the record that could arguably support
Appellant’s claims, and sets forth the conclusion that the appeal is frivolous.
Counsel explains his reasoning and supports his rationale with citations to the
record and pertinent legal authority. Therefore, counsel has complied with
the technical requirements for withdrawal, Santiago, 978 A.2d at 361, and
we will independently review the record to determine if any non-frivolous
issues are raised. See Flowers, 113 A.3d at 1250.
Initially, we note that counsel identifies a challenge relating to trial
counsel’s ineffectiveness. See Anders/Santiago Brief at 11. Counsel
acknowledges that that this matter is currently in the posture of a direct
appeal. Counsel concludes that claims of ineffectiveness cannot be raised on
direct appeal. Id. at 12.
Generally, a criminal defendant may not assert claims of ineffective
assistance of counsel on direct appeal. See Commonwealth v. Holmes, 79
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A.3d 562, 577-80 (Pa. 2013). Instead, such claims are to be deferred to PCRA
review. Id.However, our Supreme Court has recognized three exceptions to the
general rule. In Holmes, the Supreme Court held that a trial court has
discretion to address ineffectiveness claims on direct review in cases where
(1) there are extraordinary circumstances in which trial counsel’s
ineffectiveness is apparent from the record and “meritorious to the extent that
immediate consideration best serves the interests of justice[;]” or (2) “there
is good cause shown and the defendant knowingly and expressly waives his
entitlement to seek subsequent PCRA review of his conviction and sentence.”
Holmes, 79 A.3d at 577. More recently, our Supreme Court adopted a third
exception, which requires “trial courts to address claims challenging trial
counsel’s performance where the defendant is statutorily precluded from
obtaining subsequent PCRA review.” Commonwealth v. Delgros, 183 A.3d
352, 361 (Pa. 2018) (citations omitted).
Here, the record does not indicate that extraordinary circumstances
exist, or that Appellant waived his right to PCRA review. See Holmes, 79
A.3d at 577. Further, Appellant is not statutorily barred from seeking PCRA
relief. See Delgros, 183 A.3d at 361.
Because our independent review of the record confirms that none of the
exceptions apply, we agree with counsel’s conclusion that Appellant’s
ineffectiveness claim cannot be considered on direct appeal. Moreover, the
record does not reveal any additional, non-frivolous issues in this appeal. See
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Yorgey, 188 A.3d at 1197. Accordingly, we grant counsel’s petition to
withdraw and affirm the judgment of sentence.
Judgment of sentence affirmed. Petition for leave to withdraw as
counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/18/2019
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