Com. v. Cisne, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JASON CISNE
Appellant : No. 1179 EDA 2017
Appeal from the Judgment of Sentence March 10, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006829-2008
BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED JANUARY 07, 2019
Jason Cisne appeals from the judgment of sentence imposed on March
10, 2017, in the Court of Common Pleas of Philadelphia County, following the
entry of a negotiated guilty plea of 25 to 50 years' incarceration on the charges
of third degree murder, possession of a firearm prohibited and possession of
an instrument of crime.' Cisne pled guilty on March 1, 2010. However,
defense counsel failed to file a direct appeal, as requested. Pursuant to a Post
Conviction Relief Act petition, Cisne was granted nunc pro tunc relief and was
allowed to file a direct appeal. Cisne has done so. The appeal is now before
us and appointed counsel has filed an Anders brief along with a motion to
withdraw as counsel. After a thorough review of the submissions by the
' 18 Pa.C.S. §§ 2502(c), 6105(a)(1) and 907(a), respectively.
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parties, relevant law, and the certified record, we affirm and grant counsel's
petition to withdraw.
Because this matter has been a procedural nightmare, a recital of the
factual and procedural history is in order to provide the necessary context of
our review.
On March 1, 2010, Cisne entered into a negotiated guilty plea to third
degree murder, a violation of the Uniform Firearms Act, and possession of an
instrument of crime. The notes of testimony of the guilty plea reveal that
Cisne stood over the victim, Phillip Underwood, and while Underwood was,
"laying on the sidewalk face-up...Cisne pulled a gun and shot him in the left
shoulder, two times in the chest, the abdomen and the left thigh." N.T. Guilty
Plea, 3/1/2010, at 9. No direct appeal was filed.
Cisne filed a timely petition pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. § 9541 et seq. Appointed counsel filed a Turner/Finley2
no merit letter accompanied by a motion to withdraw as counsel. Pursuant to
Pa.R.Crim.P. 907, the PCRA court sent Cisne notice of its intent to dismiss the
matter without a hearing. Cisne responded to the Rule 907 notice by claiming
PCRA counsel had failed to raise the claim that trial counsel was ineffective for
failing to file a requested direct appeal. Cisne attached a copy of a letter he
had purportedly sent to trial counsel asking a direct appeal be filed. Without
ruling on PCRA counsel's motion to withdraw, the PCRA court denied Cisne's
2Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (PA. Super. 2008) (en banc).
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PCRA petition. On appeal, a panel of our Court agreed that the issues raised
were without merit, but recognized that Cisne's claim that trial counsel failed
to file a direct appeal as requested was arguably meritorious. See
Commonwealth v. Cisne, 2014 WL 10979661 (Pa. Super. 2014)
(unpublished memorandum). The matter was then remanded for an
evidentiary hearing to determine the status of Cisne's direct appeal rights.
Upon remand, Cisne's direct appeal rights were reinstated, and a direct
appeal was filed. Counsel improperly filed a Turner/Finley no merit letter
along with a motion to withdraw as counsel. On September 15, 2015, this
Court filed a per curiam order noting the matter was a direct appeal nunc pro
tunc and instructing counsel to file either an advocate's brief or an Anders
brief. Counsel subsequently filed two (2) deficient Anders briefs before being
relieved, sua sponte, of his responsibilities to Cisne. Subsequent counsel also
filed an Anders brief along with a motion to withdraw as counsel. This brief
was addressed by our Court. See Commonwealth v. Cisne, 159 A.3d 580(Pa. Super. 2016)(unpublished memorandum). Our Court agreed with
counsel that no meritorious issues existed regarding the entry of the guilty
plea. There was no evidence of record to suggest, much less demonstrate,
that the plea was invalid. However, that panel noted the record was
inconclusive regarding whether Cisne had been subjected to an
unconstitutional mandatory minimum sentence. Accordingly, the judgment of
sentence for third degree murder was vacated and the matter was remanded
for an evidentiary hearing. See Id.-3
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Upon remand, the trial court determined Cisne had not been subjected
to an unconstitutional mandatory minimum sentence and reimposed the prior
sentence. Cisne now appeals.
Counsel has filed an Anders brief, explaining there are no meritorious
issues.3 Our review leads us to agree.
We begin by noting,
The standard of review when an Anders/McClendon brief has
been presented is as follows:
To be permitted to withdraw pursuant to Anders, counsel
must: (1) petition the court for leave to withdraw stating
that after making a conscientious examination of the
record it has been determined that the appeal would be
frivolous; (2) file a brief referring to anything that might
arguably support the appeal, but which does not resemble
a "no merit" letter or amicus curiae brief; and (3) furnish
a copy of the brief to the defendant and advise him of his
right to retain new counsel or raise any additional points
that he deems worthy of the court's attention.
Commonwealth v. Boyd, 763 A.2d 421, 423 (Pa. Super.
2000). If these requirements are met, the Court may then
evaluate the record to determine whether the appeal is
frivolous. Id.Pursuant to the recent amendments of Rule 1925, if counsel
intends to submit an Anders/McClendon brief, the proper
procedure is provided in Pa.R.A.P. 1925(c)(4):
In a criminal case, counsel may file of record and serve on
the judge a statement of intent to file an
Anders/McClendon brief in lieu of filing a Statement. If,
upon review of the Anders/McClendon brief, the
appellate court believes that there are arguably
3The matter was initially remanded because counsel had failed to provide
documentation that he had informed Cisne of his rights under Anders.
Counsel has provided the proper documentation, and we may substantively
address this appeal.
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meritorious issues for review, those issues will not be
waived; instead, the appellate court may remand for the
filing of a Statement, a supplemental opinion pursuant to
1925(a) or both. Upon remand, the trial court may, but is
not required to, replace appellant's counsel.
Rule 1925 provides two options which were available to
Appellant's counsel at the time the trial court directed him
to file a concise statement. Appellant's counsel could have
complied with the order and filed a concise statement
under Pa.R.A.P. 1925(b), or alternatively, could have filed
a statement of intent to file an Anders/McClendon brief.
See Commonwealth v. Goodwin, 928 A.2d 287, 293
(Pa. Super. 2007) (en banc) (finding that under the newly
promulgated Rule 1925, the concise statement filed by
appellant's attorney indicating that 'there were no non -
frivolous matters that can be raised on appeal', would be
accepted by the Court as a statement of intent to file an
Anders/McClendon brief). These options are detailed in
the Note to Pa.R.A.P. 1925(c)(4):
Even lawyers seeking to withdraw pursuant to the
procedures set forth in Anders v. California, 386
U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and
Commonwealth v. McClendon, 495 Pa. 467, 434
A.2d 1185 (1981) are obligated to comply with all
rules, including the filing of a Statement. See
Commonwealth v. Myers, 897 A.2d 493, 494-496
(Pa. Super. 2006); Commonwealth v. Ladamus,
896 A.2d 592, 594 (Pa. Super. 2006). However,
because a lawyer will not file an Anders/McClendon
brief without concluding that there are no non -
frivolous issues to raise on appeal, this amendment
allows a lawyer to file, in lieu of a Statement, a
representation that no errors have been raised
because the lawyer is (or intends to be) seeking to
withdraw under Anders/McClendon. At that point,
the appellate court will reverse or remand for a
supplemental Statement and/or opinion if it finds
potentially non -frivolous issues during its
constitutionally required review of the record.
Pa.R.A.P. 1925 at Note (2007) (emphasis added).
Commonwealth v. McBride, 957 A.2d 752, 756-57 (Pa. Super. 2016).
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Here, counsel has complied with the technical requirements of
Anders/McClendon. Accordingly, we proceed. Counsel has filed a Pa.R.A.P.
1925(b) statement in which the sole issue raised is a claim that his plea was
involuntary due to the ineffective assistance of trial counsel. Specifically,
[Cisne] is claiming that the Negotiated Plea was coerced because
his counsel failed to investigate witnesses, was unprepared, and
thus forced [Cisne] to plead guilty when he was actually innocent.
Further, because of this coercion, the sentence imposed as a
"Negotiated Guilty Plea" was unreasonable.
Pa.R.A.P. 1925(b) Statement, 5/3/2017, at 1-2.
As noted, the prior decision of our Court in 2016, see Cisne, supra at
159 A.3d 580 has already determined there are no meritorious issues
regarding the voluntariness of the plea in the direct appeal. To the extent
that Cisne's claims are based upon claims of ineffective assistance of counsel,
a defendant cannot challenge trial counsel's ineffectiveness on direct appeal,
but must raise such claims in a timely PCRA petition. See Commonwealth
v. Grant, 813 A.2d 726 (Pa. 2002). See also Commonwealth v. Holmes,
79 A.3d 562 (Pa. 2013) ) addressing the limited circumstances, none of which
are present instantly, in which ineffective assistance of counsel claims may be
addressed on direct appeal).4
4 Cisne has filedresponse to counsel's Anders brief. However, this response
a
details allegations of ineffective assistance of counsel. As noted, such claims
are properly raised in a timely PCRA petition, not on direct appeal.
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There are only three avenues of appeal following a negotiated guilty
plea, jurisdiction (which has never been in question), voluntariness of the plea
(which has been previously addressed) and legality of sentence.5 Cisne argues
his sentence is unreasonable, not illegal. Such a claim challenges the
discretionary aspects of a sentence, not the legality of the sentence.
Moreover, we note that the hearing on remand, immediately prior to this
appeal, determined Cisne had not been subjected to an unconstitutional
mandatory minimum sentence and so the sentence was not illegal.
Accordingly, there is no meritorious issue to be found regarding sentencing.
Because the certified record amply demonstrates there are no
meritorious issues to be found on direct appeal, we affirm the judgment of
sentence. Additionally, we grant counsel's motion to withdraw from
representation.
Judgment of sentence affirmed. Motion to withdraw granted.
Judge Lazarus joins this memorandum.
President Judge Gantman concurs in the result.
5 Commonwealth v. Heaster, 171 A.3d 268, 271 (Pa. Super. 2017) (upon
the entry of a negotiated guilty plea, a defendant waives all claims and
defenses other than those sounding in the jurisdiction of the court, the validity
of the plea, and what has been termed the "legality" of the sentence imposed).
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Judgment Entered.
seph D. Seletyn,
Prothonotary
Date: 1/7/19
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