Com. v. Allen, S.

J-S37021-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHAHIEN ALLEN
Appellant No. 2207 MDA 2013
Appeal from the Judgment of Sentence entered November 6, 2008
In the Court of Common Pleas of Lackawanna County
Criminal Division at No: CP-35-CR-0002257-2007
BEFORE: LAZARUS, STABILE, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED AUGUST 20, 2014
Shahien Allen, a/k/a Shaheed McWilliams, appeals nunc pro tunc from
the judgment of sentence imposed after he pleaded guilty to criminal use of
nsel has filed an
Anders/Santiago1 brief and petitioned to withdraw as counsel. We affirm
and grant the petition to withdraw.
On October 10, 2007, Appellant pleaded guilty to one count of criminal
use of a communications facility, 18 Pa.C.S.A. § 7512(a). On November 6,
2008, he was sentenced to 18 to 60 months in prison. We dismissed
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1
Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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statement.2 Appellant then filed a petition under the Post Conviction Relief
Act (PCRA), 42 Pa.C.S.A. §§ 9541-46. As relief, the trial court restored
nunc
pro tunc to this Court. Counsel directs our attention to one issue: a
lty plea counsel.3
withdraw from representation. To withdraw under Anders and Santiago,
counsel must (1) petition this Court for leave to withdraw after certifying
that a thorough review of the record indicates the appeal is frivolous; (2) file
a brief referring to anything in the record that might arguably support the
appeal; and (3) give the appellant a copy of the brief and advise the
appellant of the right to obtain new counsel or file a pro se brief to raise any
additional points for review. Commonwealth v. Millisock, 873 A.2d 748,
751 (Pa. Super. 2005). Additionally, the Anders/Santiago brief must:
(1) provide a summary of the procedural history and facts, with
citations to the record;
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2
Counsel later testified that Appellant had requested withdrawal of the
appeal. N.T. PCRA Hearing, 11/18/13, at 6, 10.
3
By way of explanation, Appellant had two lawyers in addition to current
hdrew from
representation after he was charged with crimes by the federal government
represented him at sentencing, post-sentence, and on the initial direct
appeal.
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(2) refer to anything in the record that counsel believes arguably
supports the appeal;
and
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.
We find that counsel has met the procedural and technical
requirements of Anders and Santiago. Counsel has petitioned for leave to
withdraw,4 filed a brief that refers us to anything that might support the
appeal, and informed Appellant of his right to hire a new lawyer or file a pro
se s with the technical
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4
Counsel appears to misapprehend the nature of the current proceedings.
His petition seeks leave to withdraw under Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.3d 213 (Pa.
Super. 1988) (en banc). Turner/Finley, however applies only in post-
conviction proceedings and appeals therefrom. See, e.g., Commonwealth
v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011). Under
Turner/Finley, counsel seeking to withdraw need only file a motion and a
- Id. In contrast, counsel may withdraw on direct appeal
See Commonwealth v. Burwell,
42 A.3d 1077, 1080 (Pa. Super. 2012). Also, counsel must file an
Anders/Santiago brief, the requirements of which are more formalistic and
arduous than a no-merit letter. Id.; see also Widgins, 29 A.3d at 817 n.2
(noting that an Anders
than a no-merit letter).
This proceeding is a direct appeal nunc pro tunc not a collateral post-
conviction appeal. Therefore, Anders and Santiago not Tuner/Finley
apply. Couns
petition to withdraw sufficiently comply with Anders and Santiago.
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requirements of Santiago listed above. Appellant has filed a pro se
resolve the one issue preserved in the Anders/Santiago brief.
The sole issue raised challenges the effectiveness of guilty-plea
counsel. We find that it is wholly frivolous. Generally, a defendant cannot
raise claims of ineffective assistance of counsel on direct appeal.
Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002). Rather, a court
may entertain ineffectiveness claims on direct review only if (1) the
defendant waives further review under the PCRA and (2) two limited
circumstances exist, neither of which is present here. See Commonwealth
v. Holmes, 79 A.3d 562, 577-78 (Pa. 2013). By successfully seeking
restoration of appellate rights, Appellant has not expressly waived further
PCRA review.5 Thus, the claim is not reviewable on direct appeal.
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5
that cannot be
raised on direct appeal. As a result, Appellant must file another PCRA
petition, and re-litigate the exact claim that we dismiss here. That re-
litigation will require the appointment of another lawyer, because the next
PCRA petition will b See Commonwealth
v. Karanicolas, 836 A.2d 940, 944 (Pa. Super. 2003). Nothing obligated
so since Appellant wanted to raise only PCRA claims (ineffective assistance
of counsel and the legality of his sentence). See Holmes, 79 A.3d at 576
n.9 (noting that defendants who want to raise only ineffectiveness claims
may forgo a direct appeal and file a PCRA petition); Commonwealth v.
Fowler, 903 A.2d 586, 592 (Pa. Super. 2007) (noting that a challenge to
the legality of a sentence is non-waivable and can be raised for the first time
in a timely PCRA petition).
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As noted above, Appellant filed a pro se
informing Appellant of the petition to withdraw. In the letter, Appellant
states:
[Counsel] raised one issue out of all that were contained in the
P.C.R.A., and the issue that would have been one of the most
effective was not raised. And that issue is of me being eligible
for [Recidivism Risk Reduction Incentive (RRRI)] due to the fact
that I was sentenced on January 19th, 2009 and the RRRI
effective date was November 24th, 2008. See, Memorandum of
Law in support of P.C.R.A. petition. I stated strongly to
[counsel] that I want this issue raised as well as others but he
that this [C]ourt take all issues raised in the P.C.R.A. which is on
file into consideration and make your judgment based on that
which I have requested be contained in the P.C.R.A.
Record Pursuant to Turner Finley Letter Brief Filed on or About March 24th,
2014, 7/21/14, at 1.
Appellant correctly states that the RRRI act became effective on November
24, 2008. See Commonwealth v. Robinson, 7 A.3d 868, 870 n.1 (Pa.
Super. 2010) (citing Act of Sept. 25, 2008, P.L. 1026, No. 81 § 9). He is
incorrect, however, regarding his sentencing date, which was November 6,
2008 not January 19, 2009. Numerous documents in the certified record,
including the written judgment of sentence, confirm the date. 6 Appellant
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6
second lawyer, i.e., the initial appeal that we dismissed, which erroneously
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could not have been RRRI eligible because RRRI did not exist when he was
actually sentenced.7
counsel. This Court cannot review claims of ineffective assistance of counsel
on direct appeal. Holmes, 79 A.3d at 576; Grant, 813 A.2d at 738.
Appellant may be entitled to review of his PCRA claims, but he must first file
another PCRA petition. See Karanicolas, 836 A.2d at 944.
Anders/Santiago Brief
pro se
response, we find that this appeal is wholly frivolous. Therefore, we affirm
the judgment of sentence and
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
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7
In Robinson, 7 A.3d at 870, we held that the RRRI act can apply
retroactively, meaning to cases where the defendant committed the crimes
The defendant in Robinson
date. Id. at 870,
of the RRRI statute to a defendant who was convicted and sentenced after
the law became effective, as is the case with [Robinson], does not violate
the restrictions set on the retroactive effect o
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/20/2014
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