J-A03029-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

SHANNON DUMAY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 819 MDA 2020

Appeal from the Judgment of Sentence Entered April 8, 2020

In the Court of Common Pleas of Luzerne County Criminal Division at 

No(s): CP-40-CR-0003114-2019

BEFORE: LAZARUS, J., KUNSELMAN, J., and MURRAY, J.

MEMORANDUM BY KUNSELMAN, J.: FILED: DECEMBER 20, 2021

Shannon Dumay appeals from the judgment of sentence imposed 

following the entry of his guilty plea to possession of a firearm prohibited.1 

Additionally, Dumay’s appellate counsel has filed a petition to withdraw from 

representation and an accompanying brief pursuant to Anders v. California, 

386 U.S. 738, 744 (1967) (hereinafter the “Anders brief”). We grant 

counsel’s petition and affirm the judgment of sentence.

The relevant factual and procedural history can be summarized as 

follows. On February 18, 2020, Dumay pled guilty to one count of possession 

of a firearm prohibited. At the time of his plea hearing, Dumay was 

represented by Mark Singer, Esquire, of the Luzerne County Office of the 

Public Defender. Dumay was sentenced on April 8, 2020, to five to ten years

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1 See 18 Pa.C.S.A. § 6105(a)(1).
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in prison. Dumay did not file a post-sentence motion. However, on May 8, 

2020, Dumay filed a timely pro se notice of appeal, a pro se Pa.R.A.P. 1925(b) 

concise statement of errors complained of on appeal, and a pro se motion for 

change of counsel. The trial court granted the motion for change of counsel, 

and on June 18, 2020, Matthew Kelly, Esquire, was appointed to represent 

Dumay. 

On June 19, 2020, the trial court ordered Dumay to file a counseled 

Pa.R.A.P. 1925(b) concise statement. The order was served on both the 

District Attorney’s Office and Attorney Kelly. However, Attorney Kelly did not 

file a concise statement on Dumay’s behalf. The trial court then authored a 

Pa.R.A.P. 1925(a) opinion in which it determined that, because Dumay was 

still represented by Attorney Singer when he filed his pro se concise 

statement, that statement was a legal nullity, as hybrid representation is not 

permitted. The trial court further determined that, because no counseled 

concise statement was filed, none of Dumay’s issues were preserved for 

appellate review. 

On appeal, this Court remanded for the filing of a counseled Pa.R.A.P. 

1925(b) concise statement nunc pro tunc by Attorney Kelly, as well the 

preparation and filing of a supplemental Pa.R.A.P. 1925(a) opinion by the trial 

court addressing the merits of the counseled concise statement. Both 

Attorney Kelly and the trial court complied with this Court’s directives. In the 

counseled concise statement, Attorney Kelly raised the following issue: 
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“Whether the trial court erred in failing to comply with Pa[.]R.C[rim].P. 590 

when the Court did not conduct a full and complete plea colloquy so to ensure 

that said plea was made knowingly, voluntarily and intelligently.” Concise 

Statement at unnumbered 1 (unnecessary capitalization omitted). In 

response, the trial court authored a revised Pa.R.A.P. 1925(a) opinion 

addressing the issue raised by Attorney Kelly. Thus, the matter is now back 

before this panel.

In the Anders brief, Attorney Kelly restates the issue he raised in the 

concise statement as two separate issues:

I. Whether [Dumay’s] plea was knowingly, voluntarily or 

intelligently entered. 

II. Whether the trial court erred in conducting an inadequate plea 

colloquy.

Anders Brief at 1 (issues renumbered).

2

“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. Garang, 9 A.3d 237, 240 (Pa. Super. 2010) 

(citation omitted). Pursuant to Anders, when counsel believes an appeal is 

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2

In the Anders brief, Attorney Kelly explained that the other issues that 

Dumay raised in his pro se concise statement consisted of various claims of 

ineffective assistance of trial counsel. Attorney Kelly correctly noted that 

ineffectiveness claims are generally not appropriate matters for consideration 

on direct appeal, but rather are deferred to collateral review under the Post 

Conviction Relief Act (“PCRA”). See Commonwealth v. Holmes, 79 A.3d 

562 (Pa. 2013). Thus, we decline to address those claims in this appeal.
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frivolous and wishes to withdraw from representation, counsel must do the 

following:

(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 any additional points he deems 

worthy of this Court’s attention.

Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006) 

(citation omitted). Counsel seeking to withdraw must attach to their petitions 

a copy of the letter advising their clients of the rights identified above. See 

Commonwealth v. Millisock, 873 A.2d 748,752 (Pa. Super. 2005).

In Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), our 

Supreme Court addressed the second requirement 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 these requirements, 

it is then this Court’s responsibility “to conduct a simple review of the record 
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to ascertain if 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, Attorney Kelly filed a petition to withdraw and an Anders brief, 

and sent a letter to Dumay attaching the petition and brief. However, in doing

so, Attorney Kelly failed to comply with several of the requirements of Anders. 

First, in his petition to withdraw, Attorney Kelly merely indicates that he 

reviewed the record but does not indicate that he conscientiously examined it 

before determining that an appeal would be frivolous. This Court must be 

satisfied that counsel has “fully performed his duty as [appellant’s] advocate 

to independently search the record as a trained advocate with an eye to 

uncovering appealable error[.]” Santiago, 978 A.2d at 360. Nevertheless, 

given that the record in this particular matter is short, due to Dumay’s entry 

of a guilty plea to a single charge, and Attorney Kelly has referenced both the 

plea hearing and the sentencing hearing in the Anders brief, we are satisfied

that Attorney Kelly’s review of the record was thorough and conscientious.

More troubling, however, is the statement in Attorney Kelly’s petition to 

withdraw that he advised Dumay that he could proceed pro se or retain private 

counsel “should this Honorable Court grant the within [p]etition [to 

withdraw].” Petition to Withdraw, 11/9/20, at 1. This was an inaccurate 

statement of the law, as Dumay had the right to immediately proceed pro 

se or retain private counsel upon the filing of the petition to withdraw. See 
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Commonwealth v. Muzzy, 141 A.3d 509 (Pa. Super. 2016) (holding that 

“[i]f counsel files a petition to withdraw as appellate counsel in this Court, the 

letter to the client, inter alia, shall inform the PCRA petitioner that upon the 

filing of counsel’s petition to withdraw, the petitioner-appellant has the 

immediate right to proceed in the appeal pro se or through privately retained 

counsel.”). 

While Attorney Kelly omitted this contingency in his letter to Dumay, 

which merely indicated that Dumay had the right to proceed pro se or retain 

private counsel, Attorney Kelly nevertheless attached to that letter his petition 

to withdraw, which contained the incorrect language that Dumay did not have 

the right to proceed pro se or to retain private counsel unless or until this 

Court granted the petition to withdraw. Notably, Dumay has not elected to 

proceed pro se or retain private counsel, which may be the result of either 

informed deliberation based on the information provided in the letter or 

confusion due to the misinformation provided in the petition to withdraw.

Attorney Kelly’s Anders brief is also deficient. In an Anders brief, 

counsel must include either a reference to anything in the record arguably 

supporting the appeal, or an affirmative statement “there were no such 

references for him to make.” Santiago, 978 A.2d at 360 (holding that 

“[w]ithout one or the other, we are not assured, as Anders requires, that 

counsel fully performed his duty as Santiago's advocate[.]”). Here, Attorney 

Kelly provides neither a reference to anything in the record arguably 
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supporting the appeal nor a statement that there were no such references for 

him to make. Additionally, a proper Anders brief “articulates the issues in 

neutral form, cites relevant legal authorities, references appropriate portions 

in the record to aid our review, and concludes that, after a thorough review of 

the record, the appeal is wholly frivolous.” Commonwealth v. Wrecks, 931 

A.2d 717, 720 (Pa. Super. 2007). In the argument section of the Anders

brief, Attorney Kelly provides a mere two-sentence discussion of the issue, 

stating: “The only remaining issue is the allegation that the trial court failed 

to comply with [Pa.R.Crim.P.] 590 in conducting the plea colloquy. However, 

upon review of said colloquy, it is counsel’s opinion that said claim is baseless. 

(N.T. 02-18-2020 p. 2-5.)” Anders Brief at 6. Attorney Kelly does not identify 

the requirements of Rule 590, discuss the particulars of the trial court’s 

colloquy, cite to any controlling case law, or explain in any fashion how he 

reached his conclusion that the trial court’s colloquy complied with Rule 590 

such that Dumay’s plea was made knowingly, voluntarily and intelligently. 

See Santiago, 978 A.2d at 361 (holding that, in the Anders brief, “[c]ounsel

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.”).

Nevertheless, when direct appeal counsel has filed an Anders brief and 

is requesting permission to withdraw from representation, this Court may 

overlook certain procedural deficiencies in appellate court filings to ensure that 

Anders counsel has not overlooked non-frivolous issues. See 
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Commonwealth v. Cox, 231 A.3d 1011, 1016 (Pa. Super. 2020). Thus, 

despite the deficiencies in Attorney Kelly’s filings in this Court, we may look 

beyond such deficiencies to ensure that counsel has not overlooked any nonfrivolous issues. 

We note that the mere filing of an Anders brief and/or petition to 

withdraw will not serve to resuscitate claims that were already waived upon 

the filing of the notice of appeal. See id.; see also Pa.R.A.P. 302(a) 

(providing the general rule that “[i]ssues not raised in the lower court are 

waived and cannot be raised for the first time on appeal”). Consequently, 

while this Court could remand the matter once again for Attorney Kelly to 

address the above-described deficiencies, we decline to do so under the 

particular circumstances of this case. Such action would serve no purpose 

other than to delay resolution of this appeal and waste judicial resources. We 

reach this conclusion because, regardless of any expanded argument that 

Attorney Kelly might make regarding the adequacy of the trial court’s colloquy, 

and regardless of whether Dumay elected to proceed pro se or retain private 

counsel to advance legal arguments in this Court regarding the inadequacy of 

the colloquy, no issue regarding the colloquy or the guilty plea was preserved 

for our review.

Importantly, the proper entry of a guilty plea acts to extinguish virtually 

all legal challenges that could have been brought upon the trial or appeal of 

the case. See Commonwealth v. Eisenberg, 98 A.3d 1268, 1276 (Pa. 
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2014) (holding that, upon entry of a guilty plea, a defendant waives all claims 

and defenses other than those sounding in the jurisdiction of the court, the 

validity of the plea, and what has been termed the “legality” of the sentence 

imposed).

3

Here, Dumay challenges the validity of his guilty plea. In regards to 

such a challenge, this Court has explained:

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. Historically, 

Pennsylvania courts adhere to this waiver principle because [i]t is 

for the court which accepted the plea to consider and correct, in 

the first instance, any error which may have been committed.

Commonwealth v. Lincoln, 72 A.3d 606, 609-10 (Pa. Super. 2013) (internal 

quotation marks and some citations omitted). Thus, in order to preserve an 

issue related to the validity of a guilty plea, a defendant must either object 

during the colloquy or otherwise raise the issue at the guilty plea hearing, 

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3 Although Dumay did not raise any challenge to the jurisdiction of the court 

or the legality of the sentence imposed, these claims present legal challenges 

which are not waived for failure to assert them in the trial court, as this Court 

may sua sponte consider lack of jurisdiction or an illegal sentence. See 

Commonwealth v. Parker, 173 A.3d 294, 296 (Pa. Super. 2017) (holding 

that this Court may consider the issue of jurisdiction sua sponte); 

Commonwealth v. Randal, 837 A.2d 1211, 1215 (Pa. Super. 2003) (holding 

that challenges to the legality of a sentence can be raised sua sponte by this 

Court where our jurisdiction is firm). However, upon our review, we conclude 

that the trial court had proper jurisdiction over the charges against Dumay, 

and Dumay received a legal sentence. 
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sentencing hearing, or in post-sentence motions. See id.; see also Pa.R.A.P. 

302(a).

Instantly, our review of the record reveals that Dumay did not object to 

his plea during the guilty plea hearing, did not seek to withdraw his plea at 

sentencing, and did not challenge the colloquy or the plea in a motion to 

reconsider or modify sentence. Accordingly, he failed to preserve any 

challenge to his plea for our review. Moreover, as Dumay’s claims are waived, 

they are wholly frivolous as a matter of law. See Commonwealth v. Tukhi, 

149 A.3d 881, 888 (Pa. Super. 2016) (holding that “[a]n issue that is waived 

is frivolous.”).

Based on the foregoing, we conclude that Dumay’s claims on appeal are

frivolous. Further, in accordance with Dempster, we have independently 

reviewed the certified record in order to determine if there are any nonfrivolous issues that Attorney Kelly may have overlooked. Having found no 

non-frivolous issues, we are constrained to agree with Attorney Kelly’s

assessment that the appeal is wholly frivolous, albeit for a different reason. 

Therefore, we grant Attorney Kelly’s petition to withdraw and affirm the 

judgment of sentence.

Petition to withdraw granted. Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/20/2021