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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA

v.

JOSEPH L. STRATTON

- KIEHLMEIER

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1162 WDA 2023 Appeal from the Judgment of Sentence Entered May 2, 2022 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP

- 25

- CR

- 0000939

- 2021

BEFORE: KUNSELMAN, J., BECK, J., and STEVENS, P.J.E. * MEMORANDUM BY KUNSELMAN, J.: FILED: May 30, 2024 Joseph Stratton

- Kiehlmeier appeals from the judgment of sentence imposed after he pled no contest to terroristic threats

. 1 He claims his due process right s were violated and his counsel was ineffective. Additionally,
Stratton

- Kiehlmeier ’s counsel filed a petition to withdraw and an accompanying brief pursuant to Anders v. California , 386 U.S. 738 (1967). Upon review, we grant counsel’s petition, and affirm the judgment of
sentence. On F ebruary 24, 2021, Stratton

- Kiehlmeier flashed a gun at Teagan
Bruno , the victim, in the parking lo t of an Arby’s restaurant in the City of Er i e , Pennsylvania. Stratton

- Kiehlmeier, along with his cohort , threatened to s hoot

_________________ __________ ______ ____ _______

* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. § 2706 (a)(1).J

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Bruno. The Commonwealth clai med that Stratton

- Kiehlmeier did not have a

conce a led carry permit for the weapon and had been convicted of a burglary previousl y, which prohibited him from having a gun. Stratton

- Kiehlmeier was arrested and charged with multiple offenses. On May 2, 2022, Stratton

- Kiehlmeier pled no contest to terroristic threats. The trial court sentenced Stratton

- Kiehlmeier to 9 to 18 months’
incarceration and credited him with 391 days for time served; he was paroled immediate ly

. Stratton

- Kiehlmeier did not file a post

- sentence motion or an appeal at that time. More than a year later, on Ju ly 10, 2023 , Stratton

- Kiehlmeier filed a pro

se motion to appeal his sentence. On August 30, 2023, the court entered an order gr anting Stratton

- Kiehlmeier’s request to file his appeal nunc pro tunc and appointed counsel. C ounsel then filed this appeal

. Sh e later filed a petition to withdraw from representation and an Anders brief with this Court.
Stratton

- Kiehlmeier did not reta in independent counsel or file a pro se response to the Anders brief. Before we may consider the issues raised in the Anders brief, we must first consider counsel’s petition to withdraw from representation. See Commonwealth v. Garang , 9 A.3d 237, 240 (Pa. Super. 2010) (holding that, 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). Pursuant to Anders , when counsel believes an appeal is frivolous and wishes to withdraw from representation, counsel must do the following:J

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(1) petition the court for leave to withdraw stating that after making a conscientious examination of the record, counsel has determined the appeal would be frivolous; (2 ) file a brief referring to any issues that might arguably support the appeal, but which does not resemble a no

- merit letter; and (3) furnish a copy of the brief to the defendant and advise him of his right to retain new counsel, proceed pro se , or raise a ny additional points [the defendant] deems worthy of this Court's attention.
Commonwealth v. Edwards , 906 A.2d 1225, 1227 (Pa. Super. 2006) (citation omitted). In Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009), our Supreme Court addressed the second re quirement of Anders , i.e ., the contents of an Anders brief, and required that the brief: (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. Santiago , 978 A.2d at 361. Once counsel has satisfied the Anders requirements, it is then this Court’s responsibility “to conduct a simple review
of the record to ascertain i f there appear on its face to be arguably meritorious issues that counsel, intentionally or not, missed or misstated.” Commonwealth v. Dempster , 187 A.3d 266, 272 (Pa. Super. 2018). Here, counsel filed both an Anders brief and a petition for leave to
wit hdraw

. Further, the Anders brief substantially comports with theJ

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requirements set forth by our Supreme Court in Santiago . Finally, the record included a copy of the letter that counsel sent to Stratton

- Kiehlmeier of counsel’s intention to seek permission to withdraw and advising Stratton

Kiehlmeier of his right to proceed pro se or retain new counsel and file
additional cl aims. Accordingly, as counsel has complied with the procedural requirements for withdrawing from representation, we will conduct an independent review to determine whether Stratton

- Kiehlmeier appeal is wholly frivolous.
In the Anders brief, counsel indica tes that Stratton

- Kiehlmeier wishes to raise the following issues: 1. Did the police's failure to file an affidavit of probable cause result in the Commonwealth holding him illegally, engaging in misconduct, and violating his right to due process? 2. Did t rial counsel's representation of a "confidential human source" in [Stratton

- Kiehlmeier 's ] federal case constitute a conflict of interest? 3. Did trial counsel's illness and loss of a very close family member so affect his state of mind that he did not prop erly represent [Stratton

- Kiehlmeier's] interests?
Anders Brief at 7. Initially, we observe that Stratton

- Kiehlmeier entered a guilty plea in this case . T he entry of a guilty plea constitutes a waiver of all defects and defenses except lack of jurisdiction, invalidity of the plea, and illegality of the
sentence. Com monwealth v. Tareila , 895 A.2d 1266, 1267 ( Pa. Super. 2006) ; Commonwealth v. Messmer , 863 A. 2d 567, 571 (Pa. Super. 2004).J

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Consequently , an appellant may only challenge these defects on appeal. See Commonwealth v. Rush , 909 A.2d 805, 807 (Pa. Super. 2006).
Stratton

- Kiehlmeier raised three issues on appeal

. Notably, none of them involve the type of defect which can be raised following a guilty plea. As such, his claims are not cognizable. Additionally, none of the issues Stratton

- Kiehlmeier raised on appeal were raised with the trial court. S ee Pa.R.A.P. 302(a) . Issues not fi rst raised in the lower court are waived and cannot be raised for the first time on appeal. 2 Id. To the extent that Stratton

- Kiehlmeier claims that counsel’s actions impacted his plea, including failure to challenge the affidavit of probable cause, Strat ton

- Kiehlmeier did not object at the plea hearing or file a post

sentence motion raising these issues. Consequently, Stratton

- Kiehlmeier's issue s are waived . Because they

are waived, the issue s are frivolous under Anders

. See Commonwealth v. Tukhi , 149 A.3d 881, 888

- 89 (Pa. Super. 2016) ( citing Commonwealth v. Kalichak , 943 A.2d 285, 291 (Pa. Super. 2008) (holding that when an issue has been waived, “pursuing th[e] matter on direct appeal is frivolous”).

_________________ __________ ______ ____ _______ 2 We also note that , except in limited, identified circumstances, “claims of ineffective assistance of counsel are to be deferred to PCRA review.” Commonwealth v. Holmes , 79 A.3d 562, 576 (Pa. 2013). Stratton

Kiehlmeier can raise these issues in a timely petition under the Post Conviction Relief Act , 42 Pa.C.S.A. §§ 9541

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Further, in accordance with Dempster , we have independently reviewed the certified record to determine if there are any non

- frivolous issues that counsel may have overlooked. Having found none, we agree that the appeal is wholly frivolous. Therefore, we grant counsel’s petition to withdraw and affir m the judgment of sentence. Petition to withdraw granted. Judgment of sentence affirmed.

DATE: 05/30/2024