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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee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 Novembe r 6 , 2008 In the Court of Common Pleas of Lackawanna County Criminal Division at No: CP

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- 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 guil ty to criminal use of a communications facility. Appellant’s cou nsel has filed an Anders / Santiago 1 brief and petitioned to withdraw as counsel. We affir m and grant the petition to withdraw. On October 10, 2007, Appellant pleaded guilty to on e 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

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1 Anders v. California , 386 U.S. 738 (1967), and Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009).J-S37021- 14

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Appellant’s direct appeal for Appellant’s counsel’s failu re to file a docketing
statement. 2 Appellant then filed a petition under the Post Conv iction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541 -46. As relief, the trial court restored Appellant’s appellate rights, and he appealed the jud gment of sentence nunc pro tunc

to this Court. Counsel directs our attention to one i ssue: a challenge to the effectiveness of Appellant’s gui lty plea counsel. 3 Before we address that issue, we must consider counsel’s pe tition to withdraw from representation. To withdraw under Anders and Santiago , counsel must (1) petition this Court for leave to withd raw after certifying that a thorough review of the record indicates the app eal is frivolous; (2) file a brief referring to anything in the record that mi ght arguably support the appeal; and (3) give the appellant a copy of the bri ef 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 f acts, 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 retaine d, wit hdrew from representation after he was charged with crimes by the federal government that ultimately led to his disbarment. Appellant’s se cond attorney represented him at sentencing, post-sentence, and on the initial direct appeal.J-S37021- 14

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(2) refer to anything in the record that counsel belie ves arguably supports the appeal; (3) set forth counsel’s conclusion that the appeal is fri volous; and (4) state counsel’s reasons for concluding that the appea l is frivolous. Counsel should articulate the relevant fact s of record, controlling case law, and/or statutes on point that hav e 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 complie s with the technical

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4 Counsel appears to misapprehend the nature of the curr ent 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 m ust 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. Couns el’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 r esponse after we resolve the one issue preserved in the Anders / Santiago brief. The sole issue raised challenges the effectiveness of guilt y-plea counsel. We find that it is wholly frivolous. General ly, 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 on ly 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 seeki ng restoration of appellate rights, Appellant has not ex pressly 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 resto ration 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 dism iss here. That relitigation will require the appointment of another lawyer, because the next PCRA petition will b e considered as Appellant’s first. See Commonwealth v. Karanicolas , 836 A.2d 940, 944 (Pa. Super. 2003). Nothing obl igated counsel to seek restoration of Appellant’s appellate rig hts. This is especially so since Appellant wanted to raise only PCRA claims (ine ffective 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 i neffectiveness 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 r aised for the first time in a timely PCRA petition).J-S37021- 14

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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 containe d in the P.C.R.A., and the issue that would have been one of t he most effective was not raised. And that issue is of me bei ng eligible for [Recidivism Risk Reduction Incentive (RRRI)] due to the fact that I was sentenced on January 19th, 2009 and the RRR I effective date was November 24th, 2008. See, Memoran dum of Law in support of P.C.R.A. petition. I stated strongl y 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 o n that which I have requested be contained in the P.C.R.A. Re: To Attorney[] Kurt T. Lynott[’s] Petition to Wit hdraw 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 elig ibility is frivolous. Appellant correctly states that the RRRI act became effect ive 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 certif ied record, including the written judgment of sentence, confirm the date. 6 Appellant

____________________________________________ 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 erroneousl y lists the date of the judgment of sentence as “January 2 1, 2009.”J-S37021- 14

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could not have been RRRI eligible because RRRI did no t 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 a ssistance 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 claim s, 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 Ap pellant’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.

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7 In Robinson , 7 A.3d at 870, we held that the RRRI act can apply retroactively, meaning to cases where the defendant com mitted 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 applicat ion 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 o f statutes.”) (emphasis added).J-S37021- 14

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/20/2014