J-S09015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

CHRISTOPHER JAMES CARBONE,

                            Appellant                No. 2810 EDA 2016


               Appeal from the Judgment of Sentence June 3, 2015
              In the Court of Common Pleas of Montgomery County
    Criminal Division at No(s): CP-46-CR-0001037-2010, CP-46-CR-0001479-
                          2010, CP-46-CR-0008198-2010


BEFORE: SHOGAN, STABILE, and PLATT,* JJ.

MEMORANDUM BY SHOGAN, J.:                           FILED MARCH 29, 2017

        Appellant, Christopher James Carbone, appeals from the judgment of

sentence entered following revocation of his probation at three trial court

docket numbers. Appellant’s counsel has filed a petition seeking to withdraw

his representation and a brief pursuant to Anders v. California, 386 U.S.

738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009),

which govern a withdrawal from representation on direct appeal. Appellant

has not filed a response to counsel’s petition. After careful review, we grant

counsel’s petition to withdraw and affirm Appellant’s judgment of sentence.


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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       Appellant had entered negotiated guilty pleas in three cases.          At

docket 8198-2010, Appellant pled guilty to criminal trespass in violation of

18 Pa.C.S. § 3503(a)(1)(ii).1         Appellant pled guilty to theft from a motor

vehicle in violation of 18 Pa.C.S. § 3934(a) at docket 1479-2010. At docket

1037-2010, Appellant pled guilty to possession of drug paraphernalia in

violation of 35 P.S. § 780-113(a)(32).            While the Montgomery County

Probation and Parole Department supervised Appellant for the associated

sentences, Appellant violated the terms of supervision.

       At a Gagnon II2 hearing held on March 17, 2015, Appellant stipulated

to being in violation and entered an open stipulation on the three criminal

dockets. N.T., 3/17/15, at 3-7. An on-the-record colloquy was conducted at

that hearing. Id.



____________________________________________


1
   We note that subsections (b.1)(1)(iv) and (b.1)(2) of section 3503,
criminal trespass, were recently declared unconstitutional in Leach v.
Commonwealth, 141 A.3d 426 (Pa. 2016) (holding that 18 Pa.C.S. §
3503(b.1)(1)(iv), (b.1)(2) violates the single-subject rule of Article III,
Section 3 of the Pennsylvania Constitution). However, we note the holding
in Leach does not affect our disposition in the instant case because
Appellant was sentenced under subsection (a)(1)(ii).
2
  Due process requires a probationer be given a preliminary (“Gagnon I”)
and a final (“Gagnon II”) hearing prior to revoking probation.
Commonwealth v. Knoble, 42 A.3d 976, 978 n.1 (Pa. 2012) (citing
Gagnon v. Scarpelli, 411 U.S. 778 (1973)). The Gagnon decision has
become the common moniker for both parole and probation revocation
proceedings. Commonwealth v. Stafford, 29 A.3d 800, 801 n.1 (Pa.
Super. 2011).



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      On June 3, 2015, Appellant was sentenced at docket 8198-2010 to

four to eight years of imprisonment from his commitment date of November

23, 2011.     N.T., 6/3/15, at 10.        At docket 1479-2010, Appellant was

sentenced to two and one-half to five years of imprisonment.         Id.   That

sentence was to run concurrently to the sentence at docket 8198-2010 and

also from November 23, 2011.        Id.    At docket 1037-2010, Appellant was

placed on one year of probation that ran from the date of sentencing. Id.

      On April 29, 2016, Appellant filed a pro se petition pursuant to the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546, asserting the

ineffectiveness of counsel for failing to file a direct appeal.   PCRA counsel

was appointed and filed an amended PCRA petition on June 29, 2016,

reiterating the claim of counsel’s ineffectiveness.    On July 26, 2016, the

PCRA court entered an order granting Appellant relief and reinstating

Appellant’s direct appeal rights.

      Inexplicably, on August 9, 2016, Appellant’s counsel filed a motion to

withdraw Appellant’s admission of guilt entered at the Gagnon II hearing

held on March 17, 2015.      This post-sentence motion was denied by order

dated August 23, 2016, and entered August 24, 2016.          Appellant filed a

notice of appeal on August 23, 2016.          Appellant was directed to file a

Pa.R.A.P. 1925(b) statement. Appellant filed an amended notice of appeal

on September 2, 2016, which provided as follows:

      Notice is hereby given that [Appellant] hereby appeals to the
      Superior Court of Pennsylvania from the Order-Sentence/Penalty

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      Imposed on June 3, 2015. This Amended Notice of Appeal is
      intended to cure the previous Notice of Appeal filed with the
      Montgomery County Clerk of Courts Office on August 23, 2016.

Notice of Appeal, 9/2/16, at 1. On September 12, 2016, Appellant filed a

Pa.R.A.P. 1925(b) statement.      The trial court filed an opinion pursuant to

Pa.R.A.P. 1925(a). On December 3, 2016, counsel filed a petition for leave

of court to withdraw as appellate counsel and an Anders brief in this Court.

      Before we address the questions raised on appeal, we must resolve

appellate counsel’s request to withdraw. Commonwealth v. Cartrette, 83

A.3d 1030, 1032 (Pa. Super. 2013) (en banc).        There are procedural and

briefing requirements imposed upon an attorney who seeks to withdraw on

appeal. The procedural mandates are that counsel must:

      1) petition the court for leave to withdraw stating that, after
      making a conscientious examination of the record, counsel has
      determined that the appeal would be frivolous; 2) furnish a copy
      of the brief to the defendant; and 3) advise the defendant that
      he or she has the right to retain private counsel or raise
      additional arguments that the defendant deems worthy of the
      court’s attention.

Id. at 1032 (citation omitted).

      In this case, counsel has satisfied those directives. Within his petition

to withdraw, counsel averred that he conducted a conscientious review of

the record and concluded that the present appeal is wholly frivolous.

Counsel sent Appellant a copy of the Anders brief and petition to withdraw,

as well as a letter, a copy of which is attached to the brief. In the letter,




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counsel advised Appellant that he could represent himself or that he could

retain private counsel to represent him.

      We now examine whether the brief satisfies the Supreme Court’s

dictates in Santiago, which provide that:

      in the Anders brief that accompanies court-appointed counsel’s
      petition to withdraw, counsel must: (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.

Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361).

      Counsel’s brief is compliant with Santiago.     It sets forth the factual

and procedural history of this case, outlines pertinent case authority, cites to

the record, and refers to issues of arguable merit.     Anders Brief at 4-14.

Further, the brief sets forth counsel’s conclusion that the appeal is frivolous

and the reasons for counsel’s conclusion. Id.

      The issue raised in the Anders brief is whether Appellant’s Gagnon II

counsel was ineffective for failing to advise Appellant of the potential range

of sentences that could have been imposed. Because the case is before us

on direct appeal, however, this issue is not properly before our Court.      In

Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), our Supreme Court

reiterated the holding from Commonwealth v. Grant, 813 A.2d 726 (Pa.

2002), and stated that generally, “claims of ineffective assistance of counsel

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are to be deferred to PCRA review; trial courts should not entertain claims of

ineffectiveness upon post-verdict motions; and such claims should not be

reviewed upon direct appeal.”     Holmes, 79 A.3d at 576.       The Holmes

Court, however, recognized two exceptions to the general rule whereby

claims of ineffective assistance of counsel could be raised on direct appeal:

(1) where the trial court determines that a claim of ineffectiveness is both

meritorious and apparent from the record so that immediate consideration

and relief is warranted; or (2) where the trial court finds good cause for

unitary review, and the defendant makes a knowing and express waiver of

his entitlement to seek PCRA review from his conviction and sentence,

including an express recognition that the waiver subjects further collateral

review to the time and serial petition restrictions of the PCRA. Id. at 564,

577.

       Appellant did not satisfy either of the aforementioned exceptions

outlined in Holmes. The trial court did not conclude that Appellant’s claim

of ineffectiveness is meritorious and apparent from the record necessitating

immediate consideration, and Appellant has not expressly waived his right to

pursue PCRA review. Trial Court Opinion, 10/13/16, at 3-4. Accordingly, we

dismiss this claim without prejudice to Appellant’s right to seek collateral

review under the PCRA.

       Counsel’s petition to withdraw granted.       Judgment of sentence

affirmed.


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J-S09015-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/29/2017




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