J-S37021-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 Appellee 

v.

SHAHIEN ALLEN 

 Appellant No. 2207 MDA 2013 

Appeal from the Judgment of Sentence entered November 6, 2008 

In the Court of Common Pleas of Lackawanna County 

Criminal Division at No: CP-35-CR-0002257-2007 

BEFORE: LAZARUS, STABILE, and MUSMANNO, JJ. 

MEMORANDUM BY STABILE, J.: FILED AUGUST 20, 2014 

 Shahien Allen, a/k/a Shaheed McWilliams, appeals nunc pro tunc from 

the judgment of sentence imposed after he pleaded guilty to criminal use of 

a communications facility. Appellant’s counsel has filed an 

Anders/Santiago1 brief and petitioned to withdraw as counsel. We affirm 

and grant the petition to withdraw. 

 On October 10, 2007, Appellant pleaded guilty to one count of criminal 

use of a communications facility, 18 Pa.C.S.A. § 7512(a). On November 6, 

2008, he was sentenced to 18 to 60 months in prison. We dismissed 

____________________________________________ 

1 Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. 

Santiago, 978 A.2d 349 (Pa. 2009). 
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Appellant’s direct appeal for Appellant’s counsel’s failure to file a docketing 

statement.2

 Appellant then filed a petition under the Post Conviction Relief 

Act (PCRA), 42 Pa.C.S.A. §§ 9541-46. As relief, the trial court restored 

Appellant’s appellate rights, and he appealed the judgment of sentence nunc 

pro tunc to this Court. Counsel directs our attention to one issue: a 

challenge to the effectiveness of Appellant’s guilty plea counsel.3

 

Before we address that issue, we must consider counsel’s petition to 

withdraw from representation. To withdraw under Anders and Santiago, 

counsel must (1) petition this Court for leave to withdraw after certifying 

that a thorough review of the record indicates the appeal is frivolous; (2) file 

a brief referring to anything in the record that might arguably support the 

appeal; and (3) give the appellant a copy of the brief and advise the 

appellant of the right to obtain new counsel or file a pro se brief to raise any 

additional points for review. Commonwealth v. Millisock, 873 A.2d 748, 

751 (Pa. Super. 2005). Additionally, the Anders/Santiago brief must: 

(1) provide a summary of the procedural history and facts, with 

citations to the record; 

____________________________________________ 

2

 Counsel later testified that Appellant had requested withdrawal of the 

appeal. N.T. PCRA Hearing, 11/18/13, at 6, 10. 

3

 By way of explanation, Appellant had two lawyers in addition to current 

counsel. Appellant’s first attorney, privately retained, withdrew from 

representation after he was charged with crimes by the federal government 

that ultimately led to his disbarment. Appellant’s second attorney 

represented him at sentencing, post-sentence, and on the initial direct 

appeal. 
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(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. 

We find that counsel has met the procedural and technical

requirements of Anders and Santiago. Counsel has petitioned for leave to 

withdraw,4

 filed a brief that refers us to anything that might support the 

appeal, and informed Appellant of his right to hire a new lawyer or file a pro 

se response. Furthermore, counsel’s brief complies with the technical 

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4

 Counsel appears to misapprehend the nature of the current proceedings. 

His petition seeks leave to withdraw under Commonwealth v. Turner, 544 

A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.3d 213 (Pa. 

Super. 1988) (en banc). Turner/Finley, however applies only in postconviction proceedings and appeals therefrom. See, e.g., Commonwealth 

v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011). Under 

Turner/Finley, counsel seeking to withdraw need only file a motion and a 

“no-merit letter.” Id. In contrast, counsel may withdraw on direct appeal 

only if the appeal is “wholly frivolous.” See Commonwealth v. Burwell, 

42 A.3d 1077, 1080 (Pa. Super. 2012). Also, counsel must file an 

Anders/Santiago brief, the requirements of which are more formalistic and 

arduous than a no-merit letter. Id.; see also Widgins, 29 A.3d at 817 n.2 

(noting that an Anders brief “provides greater protection to a defendant” 

than a no-merit letter). 

This proceeding is a direct appeal nunc pro tunc—not a collateral postconviction appeal. Therefore, Anders and Santiago—not Tuner/Finley—

apply. Counsel’s confusion notwithstanding, we find that the brief and 

petition to withdraw sufficiently comply with Anders and Santiago. 
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requirements of Santiago listed above. Appellant has filed a pro se 

response, as is his right. We will address Appellant’s response after we 

resolve the one issue preserved in the Anders/Santiago brief. 

The sole issue raised challenges the effectiveness of guilty-plea 

counsel. We find that it is wholly frivolous. Generally, a defendant cannot 

raise claims of ineffective assistance of counsel on direct appeal. 

Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002). Rather, a court 

may entertain ineffectiveness claims on direct review only if (1) the 

defendant waives further review under the PCRA and (2) two limited 

circumstances exist, neither of which is present here. See Commonwealth 

v. Holmes, 79 A.3d 562, 577-78 (Pa. 2013). By successfully seeking 

restoration of appellate rights, Appellant has not expressly waived further 

PCRA review.5

 Thus, the claim is not reviewable on direct appeal. 

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5 We are puzzled as to why Appellant’s counsel sought restoration of 

Appellant’s right to a direct appeal only to advance a claim that cannot be 

raised on direct appeal. As a result, Appellant must file another PCRA 

petition, and re-litigate the exact claim that we dismiss here. That relitigation will require the appointment of another lawyer, because the next 

PCRA petition will be considered as Appellant’s first. See Commonwealth 

v. Karanicolas, 836 A.2d 940, 944 (Pa. Super. 2003). Nothing obligated 

counsel to seek restoration of Appellant’s appellate rights. This is especially 

so since Appellant wanted to raise only PCRA claims (ineffective assistance 

of counsel and the legality of his sentence). See Holmes, 79 A.3d at 576 

n.9 (noting that defendants who want to raise only ineffectiveness claims 

may forgo a direct appeal and file a PCRA petition); Commonwealth v. 

Fowler, 903 A.2d 586, 592 (Pa. Super. 2007) (noting that a challenge to 

the legality of a sentence is non-waivable and can be raised for the first time 

in a timely PCRA petition). 
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As noted above, Appellant filed a pro se response to counsel’s letter 

informing Appellant of the petition to withdraw. In the letter, Appellant 

states: 

[Counsel] raised one issue out of all that were contained in the 

P.C.R.A., and the issue that would have been one of the most 

effective was not raised. And that issue is of me being eligible 

for [Recidivism Risk Reduction Incentive (RRRI)] due to the fact 

that I was sentenced on January 19th, 2009 and the RRRI 

effective date was November 24th, 2008. See, Memorandum of 

Law in support of P.C.R.A. petition. I stated strongly to 

[counsel] that I want this issue raised as well as others but he 

insisted that this was a meritless issue, when it wasn’t. I ask 

that this [C]ourt take all issues raised in the P.C.R.A. which is on 

file into consideration and make your judgment based on that 

which I have requested be contained in the P.C.R.A. 

Re: To Attorney[] Kurt T. Lynott[’s] Petition to Withdraw as Counsler [sic] of 

Record Pursuant to Turner Finley Letter Brief Filed on or About March 24th, 

2014, 7/21/14, at 1. 

Appellant’s contention regarding his alleged RRRI eligibility is frivolous. 

Appellant correctly states that the RRRI act became effective on November 

24, 2008. See Commonwealth v. Robinson, 7 A.3d 868, 870 n.1 (Pa. 

Super. 2010) (citing Act of Sept. 25, 2008, P.L. 1026, No. 81 § 9). He is 

incorrect, however, regarding his sentencing date, which was November 6, 

2008—not January 19, 2009. Numerous documents in the certified record, 

including the written judgment of sentence, confirm the date.6

 Appellant 

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6 Appellant’s incorrect belief may stem from the notice of appeal filed by his 

second lawyer, i.e., the initial appeal that we dismissed, which erroneously 

lists the date of the judgment of sentence as “January 21, 2009.”
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could not have been RRRI eligible because RRRI did not exist when he was 

actually sentenced.7

 

Appellant’s request to consider all of the claims raised in his PCRA is 

premature. Appellant’s remaining claims challenge the effectiveness of prior 

counsel. This Court cannot review claims of ineffective assistance of counsel 

on direct appeal. Holmes, 79 A.3d at 576; Grant, 813 A.2d at 738. 

Appellant may be entitled to review of his PCRA claims, but he must first file 

another PCRA petition. See Karanicolas, 836 A.2d at 944. 

We find counsel’s petition to withdraw and Anders/Santiago Brief 

compliant. Having further reviewed the record and Appellant’s pro se

response, we find that this appeal is wholly frivolous. Therefore, we affirm 

the judgment of sentence and grant counsel’s petition to withdraw.

Judgment of sentence affirmed. Petition to withdraw as counsel 

granted. 

____________________________________________ 

7

 In Robinson, 7 A.3d at 870, we held that the RRRI act can apply 

retroactively, meaning to cases where the defendant committed the crimes 

leading to the conviction and sentence before the RRRI act’s effective date. 

The defendant in Robinson was sentenced after the RRRI act’s effective 

date. Id. at 870, 873 (“Accordingly, it is our determination that application 

of the RRRI statute to a defendant who was convicted and sentenced after 

the law became effective, as is the case with [Robinson], does not violate 

the restrictions set on the retroactive effect of statutes.”) (emphasis added).
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Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/20/2014