Com. v. Lindsay, T. (memorandum)

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J.S66042/13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. TAHMERE LINDSAY, Appellant : : : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1603 EDA 2013 Appeal from the Judgment of Sentence May 7, 2013 In the Court of Common Pleas of Delaware County Criminal Division No(s).: CP-23-CR-0006249-2012 BEFORE: PANELLA, MUNDY and FITZGERALD,* JJ. MEMORANDUM BY FITZGERALD, J.: FILED NOVEMBER 25, 2013 Appellant, Tahmere Lindsay, appeals from the judgment of sentence entered in the Delaware County Court of Common Pleas pursuant to a negotiated guilty plea. Appellant contends the plea was not knowing, intelligent and voluntary because he did not know his entry of the plea amounted to a violation of his juvenile probation. Appellant s counsel, Richard J. Blasetti, Esq., has filed a petition to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. McClendon, * Former Justice specially assigned to the Superior Court. J. S66042/13 434 A.2d 1185 (Pa. 1981). We affirm and grant counsel s petition to withdraw. On May 7, 2013, Appellant entered a negotiated guilty plea to robbery and firearms not to be carried without a license.1 N.T., 5/7/13, at 4-5. On the same date, the court imposed a sentence of fifty to one hundred months imprisonment for robbery and five years consecutive state probation for firearms not to be carried without a license. Id. at 17. This timely appeal followed.2 Counsel filed an Anders petition and brief with this Court. As a prefatory matter, we examine whether counsel complied with the requirements of Anders, supra, and McClendon, supra, as clarified by the Pennsylvania Supreme Court in Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). When faced with a purported Anders brief, this Court may not review the merits of any possible underlying issues without first examining counsel s request to withdraw. Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa. Super. 2008) (citation omitted). [I]n 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 1 18 Pa.C.S. ยงยง 3701(a)(1)(ii); 6106(a)(1). 2 Appellant was ordered to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal. Counsel informed the PCRA court that he intended to file an Anders brief with this Court, and therefore did not file a Rule 1925(b) statement. See Pa.R.A.P. 1925(c)(4). -2- J. S66042/13 (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. . . . Santiago, 978 A.2d at 361. Instantly, counsel s application for leave to withdraw and appellate brief comply with the technical requirements of Anders and Santiago. See id. The application and brief set forth a plea issue, cite relevant legal authority, and conclude the appeal is frivolous. See id. The record also establishes Appellant was served a copy of the brief and application, which advised him of the right to retain new counsel, or proceed pro se and raise additional issues to this Court. See id. Once the requirements attendant to counsel s request to withdraw are satisfied, a reviewing court will examine the proceedings and render an independent judgment of whether the appeal is in fact wholly frivolous. Wimbush, 951 A.2d at 382. The Anders brief raises the following issue for our review: Whether the plea was knowing, intelligent and voluntary given that the instant plea would act as a violation on Appellant s juvenile probation? Ander s Brief at 3. First, we consider whether the issue is waived. 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). -3- Failure to J. S66042/13 employ either measure results in waiver. Commonwealth v. Lincoln, 72 A.3d 606, 609-10 (Pa. Super. 2013). The court sentenced Appellant on May 7, 2013. Appellant did not challenge the voluntariness of his guilty plea during the guilty plea colloquy or file a motion to withdraw the plea within ten days after sentencing. See id. Therefore, Appellant waived his challenge to the validity of his guilty plea. See id. A review of the record reveals no other meritorious issue that could provide relief. Judgment of sentence affirmed. granted. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 11/25/2013 -4- Counsel s petition to withdraw

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