Com. v. Acevedo, A.

J-S49020-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALBERTO ACEVEDO :
:
Appellant : No. 543 WDA 2020
Appeal from the Judgment of Sentence Entered April 8, 2020
In the Court of Common Pleas of Forest County Criminal Division at
No(s): CP-27-CR-0000027-2019
BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY DUBOW, J.: FILED NOVEMBER 13, 2020
Appellant, Alberto Acevedo, appeals from the April 8, 2020 Judgment of
Sentence entered in the Forest County Court of Common Pleas following his
guilty plea to Criminal Attempt to Commit Terroristic Threats. With this
appeal, Appellant’s counsel has filed a Petition for Leave to Withdraw as
Counsel and an Anders1 brief. After careful review, we affirm the Judgment
of Sentence and grant counsel’s Petition to Withdraw.
The facts and procedural history are, briefly, as follows. The
Commonwealth charged Appellant with Terroristic Threats and Criminal
Attempt to Commit Terroristic Threats2 after he sent a letter from prison to a
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* Former Justice specially assigned to the Superior Court.
1 Anders v. California, 386 U.S. 738 (1967).
2 18 Pa.C.S. §§ 2706(a)(1) and 901(a), respectively.
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female acquaintance threatening to kill her. On January 29, 2020, Appellant
entered an open guilty plea to the Attempt offense; in exchange, the
Commonwealth agreed to nolle pros the Terroristic Threats charge.
At the guilty plea hearing, the court conducted a thorough colloquy on
the record.3 The court accepted Appellant’s plea and deferred sentencing
pending preparation of a Post-Sentence Investigation (“PSI”) Report.
On March 11, 2020, the court sentenced Appellant to 12 to 24 months’
incarceration.4 Appellant subsequently mailed directly to the trial court a
series of pro se filings, including, on March 24, 2020, a Motion to Withdraw
Guilty Plea.5
On April 9, 2020, Appellant filed a pro se Notice of Appeal.6 Counsel
filed a Statement of Intent to File an Anders Brief. See Pa.R.A.P. 1925(c)(4).
The trial court subsequently filed a Rule 1925(a) Opinion.
____________________________________________
3 During the colloquy, Appellant acknowledged reviewing the maximum
penalties and sentencing guidelines with counsel. He further acknowledged
that the Commonwealth had not promised him anything regarding his
sentence, that he had had sufficient time to discuss the plea with his counsel,
and that he was satisfied with his counsel. In addition, the court also advised
Appellant on the record of the maximum penalties associated with the offense.
4 The court ordered Appellant to serve this sentence consecutive to the
sentence Appellant was serving at the time he committed the instant crime.
5 The trial court denied this Motion on May 1, 2020.
6 On April 14, 2020, plea counsel filed a Motion to Withdraw, which the trial
court granted on May 1, 2020. In that Order, the court appointed new counsel
and extended the filing deadline for the Rule 1925(b) Statement until 60 days
from May 1, 2020.
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Appellant’s counsel filed an Anders Brief claiming Appellant’s plea
counsel had rendered ineffective assistance. Anders Br. at 4. Neither
Appellant nor the Commonwealth have filed a response.
As a preliminary matter, we address counsel’s request to withdraw as
counsel. “When presented with an Anders Brief, this Court may not review
the merits of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.
2010) (citation omitted). In order for counsel to withdraw from an appeal
pursuant to Anders, our Supreme Court has determined that counsel must
meet the following requirements:
(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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
Counsel has complied with the mandated procedure for withdrawing as
counsel. Additionally, counsel confirms that he sent Appellant a copy of the
Anders Brief and Petition for Leave to Withdraw as Counsel, as well as a letter
explaining to Appellant that he has the right to retain new counsel, proceed
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pro se, or to raise any additional points. See Commonwealth v. Millisock,
873 A.2d 748, 751 (Pa. Super. 2005) (describing notice requirements).
Because counsel has satisfied the above requirements, we will first
address the substantive issues raised in the Anders Brief. Subsequently, we
must “make a full examination of the proceedings and make an independent
judgment as to whether the appeal is in fact wholly frivolous.” Santiago, 978
A.2d at 355 n.5 (citation omitted). See also Commonwealth v. Yorgey,
188 A.3d 1190, 1197 (Pa. Super. 2018) (en banc) (noting Anders requires
the reviewing court to “review ‘the case’ as presented in the entire record with
consideration first of issues raised by counsel”).
Ineffective Assistance of Counsel Claim
Appellant has asserted that his plea counsel was ineffective because
counsel purportedly failed to properly explain the sentencing guidelines to
Appellant and failed to raise the issue of Appellant’s mental health. Anders
Brief at 4.
It is well-settled that, generally, a defendant “should wait to raise claims
of ineffective assistance of counsel until collateral review.” Commonwealth
v. Grant, 813 A.2d 726, 738 (Pa. 2002). Because this appeal is a direct
appeal from Appellant’s new Judgment of Sentence and not a post-sentence
collateral appeal, we conclude that Appellant’s issue is premature.
Additionally, our independent review of the record does not reveal any
non-frivolous arguments available to Appellant. Thus, we agree with counsel
that this appeal is wholly frivolous. Accordingly, we grant counsel’s Petition
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for Leave to Withdraw as Counsel and affirm Appellant’s Judgment of
Sentence.
Judgment of Sentence affirmed. Counsel’s Petition for Leave to
Withdraw as Counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/13/2020
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