Com. v. Furin, S.

J-S34004-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
STEVEN ANDREW FURIN
Appellant No. 694 WDA 2013
Appeal from the Judgment of Sentence March 22, 2013
In the Court of Common Pleas of Bedford County
Criminal Division at No(s): CP-05-CR-0000366-2012
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.
MEMORANDUM BY OTT, J.: FILED AUGUST 29, 2014
Steven Andrew Furin appeals from the judgment of sentence entered
March 22, 2013, in the Bedford County Court of Common Pleas. Furin was
sentenced to a term of 18 months nolo
contendre to one count of indecent exposure.1 Contemporaneous with this
and an Anders brief. See Anders v. California, 386 U.S. 738 (1967);
Commonwealth v. McClendon
Anders
discretionary aspects of his sentence. For the reasons set forth below, we
aw.
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1
18 Pa.C.S. § 3127(a).
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Furin was charged with indecent exposure, open lewdness and
disorderly conduct,2 following a verbal altercation with another man on July
12, 2012, during which he yelled obscenities and exposed his genitals in the
presence of a five-year-old child. On the day scheduled for jury selection,
Furnin entered a negotiated plea of nolo contendre to one count of indecent
dismissal of the remaining charges. On March 22, 2013, the trial court
followed.
When direct appeal counsel files a petition to withdraw and
accompanying Anders brief, we must first examine the request to withdraw
before addressing any of the substantive issues raised on appeal.
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007). Here,
our review of the record reveals that counsel has substantially complied with
the requirements for withdrawal outlined in Anders, supra, and its
progeny.3 Moreover, the record contains no additional correspondence from
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2
18 Pa.C.S. §§ 3127(a), 5901, and 5503(a)(3), respectively.
3
Specifically, counsel filed a petition for leave to withdraw, in which she
states her belief that the appeal is wholly frivolous, filed an Anders brief
pursuant to the dictates of Commonwealth v. Santiago, 978 A.2d 349,
361 (Pa. 2009), furnished a copy of the Anders brief to Furin and advised
Furin of his right to retain new counsel or proceed pro se. Commonwealth
v. Ferguson, 761 A.2d 613, 616 (Pa. Super. 2000).
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Furin. Accordingly, we will proceed to examine the record and make an
independent determination of whether the appeal is wholly frivolous.
The first issue presented in the Anders brief challenges the
discretionary aspects of a sentence is not absolute, in order to reach the
merits of such a claim, this Court must first determine:
(1) whether appellant has filed a timely notice of appeal; (2)
whether the issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence; (3) whether
appellant's brief has a fatal defect; and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.
Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011)
(footnotes omitted). Here, Furin has not satisfied the procedural
prerequisite for our review since he failed to raise his challenge either during
the sentencing hearing, or in a timely filed motion for reconsideration of
sentence. Accordingly, it is waived for our review. See Commonwealth v.
Trinidad, ___ A.3d ___, 2014 PA Super 78, *7 (Pa. Super. 2014).
Next, the Anders
plea.
A defendant wishing to challenge the voluntariness of a guilty
plea on direct appeal must either object during the plea colloquy
or file a motion to withdraw the plea within ten days of
sentencing. Pa.R.Crim.P. 720(A)(1), (B)(1)(a)(i). Failure to
employ either measure results in waiver. Commonwealth v.
Tareila, 895 A.2d 1266, 1270 n. 3 (Pa.Super.2006).
Commonwealth v. Lincoln, 72 A.3d 606, 609-610 (Pa. Super. 2013),
appeal denied, 87 A.3d 319 (Pa. 2014). Here, again, Furin neither objected
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to his plea during the plea hearing, nor filed a motion to withdraw his guilty
plea. Therefore, his challenge is now waived.
appeal is wholly frivolous, we affirm the judgment of sentence and grant
4
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/29/2014
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4
Were we to conclude that the claims presented in the Anders brief were
not waived, we would, nevertheless, affirm on the basis of the well-reasoned
opinion of the Honorable Travis W. Livengood. See Trial Court Opinion,
6/18/2013, at 1-3.
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