J-S73007-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DAVID PRICE,

Appellant No. 781 MDA 2014

Appeal from the Judgment of Sentence March 18, 2014

In the Court of Common Pleas of Berks County

Criminal Division at No(s): CP-06-CR-002357-2012

BEFORE: BOWES, WECHT, and MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.: FILED DECEMBER 04, 2014

David Price appeals from the judgment of sentence of twenty-two to 

sixty months imprisonment that the trial court imposed after Appellant pled 

guilty to robbery. Appellate counsel has filed a petition seeking to withdraw

her representation and a brief pursuant to Anders v. California, 386 U.S. 

738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), 

which govern a withdrawal from representation on direct appeal. We grant 

the petition to withdraw and affirm. 

On January 9, 2012, Appellant committed an armed robbery at an 

Econo Lodge in Amity Township, Berks County. Tiffany Smith was working 

as a clerk when Appellant approached her, asked about rates, and left. 

Appellant then returned with a weapon. Acting in conformity with 

Appellant’s demands, Ms. Smith gave Appellant the drawer from Econo 
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Lodge’s cash register and her money and identification. Appellant was 

apprehended after police viewed surveillance footage taken of the incident. 

On May 14, 2012, Appellant was charged with robbery graded as a firstdegree felony, robbery graded as a second-degree felony, simple assault, 

theft, and receiving stolen property.

Appellant initially entered a guilty plea to robbery graded as a firstdegree felony in exchange for a sentence of imprisonment of twenty-two to 

sixty months with boot camp eligibility. The court sentenced in accordance 

with that arrangement, but Appellant subsequently discovered that he was 

not eligible for boot camp due to the fact that the robbery in question was 

graded as a first-degree felony. 61 Pa.C.S. § 3903 (rendering someone 

convicted of first-degree felony robbery unable to participate in motivational 

boot camp). 

Appellant petitioned to file a motion to withdraw his guilty plea nunc 

pro tunc. On March 18, 2014, that motion was granted, the court permitted 

Appellant to withdraw his guilty plea, and Appellant entered a second guilty 

plea to robbery graded as a second-degree felony. At that proceeding, 

Appellant admitted that on January 9, 2012, while in the course of 

committing a theft, he threatened Tiffany Smith with a firearm or a replica 

firearm and placed Ms. Smith in fear of immediate serious bodily injury. 

Then, Appellant and the Commonwealth both specifically requested 

that the same sentence of twenty-two to sixty months imprisonment, which 
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exceeded the applicable guideline ranges, be imposed. Specifically, the 

Commonwealth stated, “The plea agreement calls for a sentence of 22 to 60 

months in a state correctional institute, which is outside the guidelines 

entirely.” N.T. Plea, 3/18/04, at 7. The district attorney continued that the 

sentence was appropriate because the Commonwealth had agreed that 

Appellant could plead guilty to a second-degree rather than a first-degree 

felony. It also observed that the crime carried “a gun mandatory of five 

years that the Commonwealth [had] agreed not to seek.” Id. The 

prosecutor maintained that, even though the negotiated sentence exceeded 

the applicable guideline ranges, it was “appropriate under the 

circumstances.” Id. 

Appellant’s counsel agreed with these assertions and specifically asked 

the court to “go along with [the district attorney’s] statement.” Id. Defense 

counsel reported that the twenty-two to sixty-month sentence was “basically 

what we had agreed to the first time.” Id. Counsel represented that it was 

out of character for Appellant to commit an armed robbery and concurred 

that the “District Attorney’s Office [had been] willing to drop the mandatory 

in this case based upon affidavits and letters written to the DA by people on 

[Appellant’s] behalf.” Id. 

Accordingly, on March 18, 2014, Appellant received a sentence of 

twenty-two to sixty months incarceration with boot camp eligibility as well as 

credit for time served. Appellant filed an untimely pro se motion to modify 
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his sentence and complained that it was excessive. He also filed the within 

appeal, but counsel filed the appellate brief. 

Before we address the question raised on appeal, we first must resolve 

appellate counsel’s request to withdraw. Commonwealth v. Cartrette, 83 

A.3d 1030 (Pa.Super. 2013) (en banc). There are procedural and briefing 

requirements imposed upon an attorney who seeks to withdraw on appeal. 

The procedural mandates are that counsel must

1) petition the court for leave to withdraw stating that, after 

making a conscientious examination of the record, counsel has 

determined that the appeal would be frivolous; 2) furnish a copy 

of the brief to the defendant; and 3) advise the defendant that 

he or she has the right to retain private counsel or raise 

additional arguments that the defendant deems worthy of the 

court's attention.

Id. at 1032 (citation omitted). 

In this case, counsel has satisfied those directives. Counsel’s petition 

to withdraw sets forth the following. Counsel reviewed the record as well as 

pertinent legal authority and believed that there are no non-frivolous issues 

to be raised on appeal. Counsel notified Appellant of her request to 

withdraw and forwarded to Appellant a copy of the brief as well as the 

petition to withdraw. Counsel sent a letter to Appellant advising him of his 

right to submit on his own behalf additional arguments or comments and of 

his right to retain new counsel to pursue this appeal. Thus, counsel satisfied 

the procedural requirements for withdrawal.
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We now examine whether the brief comports with the Supreme Court’s 

dictates in Santiago, supra, which provides that

in 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 (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.

Cartrette, supra at 1032 (quoting Santiago, supra at 361). 

Counsel’s brief is compliant with Santiago. It sets forth the factual 

and procedural history of this case and establishes why Appellant’s issue 

lacks merit. Applicable legal authority is provided. We now examine the 

merits of the issue raised and, after reviewing that contention, we will 

independently review the record in order to determine if counsel’s 

assessment of the frivolity of the present appeal is correct. Cartrette, 

supra. Appellant raises one issue for our review: 

Whether Price’s sentence of 22 months – 60 months in a state 

correctional institution was manifestly excessive, clearly 

unreasonable, and contrary to the fundamental norms 

underlying the Sentencing Code, where (1) the court imposed a 

sentence beyond the aggravated guideline range without stating 

sufficient reasons on the record for the upward deviation and (2) 

the court did not consider mitigating factors including the 

absence of a prior criminal record, cooperation with authority 

upon arrest, demonstrating remorse for the crime committed, no 

misconduct during incarceration and gainful employment 

available upon release from incarceration, all in violation of 42 

Pa.C.S.A. § 9721(b)?
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Appellant’s brief at 5. 

These averments all relate to the discretionary aspects of the 

sentence. As appellate counsel notes, Appellant and the Commonwealth 

agreed that Appellant would be sentenced to twenty-two to sixty months 

incarceration. Since Appellant entered a negotiated guilty plea to a sentence 

that did not exceed the lawful maximum and since he was sentenced in 

accordance with the plea, he cannot challenge the discretionary aspects of 

the sentence imposed. Commonwealth v. Reichle, 589 A.2d 1140 

(Pa.Super. 1991). 

We also observe that the issue in question was not preserved since it 

was not raised at sentencing or in a post-sentence motion. While Appellant 

did file an untimely pro se motion to modify his sentence, Appellant was 

represented when the motion was filed. Hence, the pro se motion to modify 

the sentence was a legal nullity, and it did not operate to preserve his 

discretionary sentencing claims. Commonwealth v. Nischan, 928 A.2d 

349, 355 (Pa.Super. 2007). 

We also have conducted an independent review of the record and 

agree with counsel’s assessment that there are no preserved challenges to 

the plea or sentence. Hence, we concur with counsel’s assessment that the 

issue is wholly frivolous, grant the petition to withdraw, and affirm. 

Petition of Amy J. Shaffer, Esquire, to withdraw as counsel is granted. 

Judgment of sentence affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/4/2014