J-S24031-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

C. ARTHUR BENNETT, :

:

Appellant : No. 2948 EDA 2014

Appeal from the Judgment of Sentence entered on September 8, 2014

in the Court of Common Pleas of Delaware County,

Criminal Division, No. CP-23-CR-0004121-2014

BEFORE: GANTMAN, P.J., ALLEN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED APRIL 16, 2015

C. Arthur Bennett (“Bennett”) appeals from the judgment of sentence 

imposed following his nolo contendere plea to one count of possession of a 

controlled substance (marijuana) with the intent to deliver (“PWID”).1 

Additionally, Patrick J. Connors, Esquire (“Attorney Connors”), Bennett’s 

counsel, has filed an Application to Withdraw as counsel and an 

accompanying brief pursuant to Anders v. California, 386 U.S. 738 (1967). 

We grant Attorney Connors’s Application to Withdraw and affirm Bennett’s 

judgment of sentence.

On September 8, 2014, Bennett tendered a negotiated nolo 

contendere plea to PWID, whereupon the Commonwealth recommended a 

sentence of time served (approximately one month) to twenty-three months 

 

1 See 35 P.S. § 780-113(a)(30).
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in prison. On that same date, the trial court accepted Bennett’s plea and 

sentenced him in accordance with the terms of the plea agreement. 

Subsequently, Bennett filed a post-sentence Motion to withdraw his nolo 

contendere plea, which the trial court denied. Bennett thereafter filed a 

timely Notice of Appeal. In response to the trial court’s Order to file a 

Pa.R.A.P. 1925(b) concise statement of matters complained of on appeal, 

Attorney Connors filed Statement indicating his intention to file an Anders

brief. Thereafter, Attorney Connors filed an Application to Withdraw as 

Bennett’s counsel and an Anders brief.

“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 

frivolous and wishes to withdraw from representation, he/she 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). In Commonwealth v. Santiago, 978 A.2d 349 (Pa. 
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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 the [Anders] 

requirements, it is then this Court’s duty to conduct its own review of the 

trial court’s proceedings and render an independent judgment as to whether 

the appeal is, in fact, wholly frivolous.” Edwards, 906 A.2d at 1228 

(citation omitted).

Here, Attorney Connors has complied with each of the requirements of 

Anders. Attorney Connors indicates that he conscientiously examined the 

record and determined that an appeal would be frivolous. Further, Attorney 

Connors’s Anders brief comports with the requirements set forth by the 

Supreme Court of Pennsylvania in Santiago. Finally, the record contains a 

copy of the letter that Attorney Connors sent to Bennett, advising him of his 

right to proceed pro se or retain alternate counsel and file additional claims, 

and stating Attorney Connors’s intention to seek permission to withdraw. 
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Accordingly, Attorney Connors has complied with the procedural 

requirements for withdrawing from representation, and we will determine 

whether Bennett’s appeal is wholly frivolous.

The Anders brief filed by Attorney Connors identifies the following 

issue for our review: “Whether the sentence imposed on [] Bennett was 

harsh and excessive under the circumstances?” Anders Brief at 1 

(italicization omitted). 

In terms of its effect upon a case, a plea of nolo contendere is treated 

the same as a guilty plea. See Commonwealth v. Nelson, 666 A.2d 714, 

717 (Pa. Super. 1995). By entering a plea of nolo contendere, a defendant 

waives “all defects and defenses except those concerning the jurisdiction of 

the court, legality of sentence, and validity of plea.” Id. Legality of 

sentence issues occur generally either (1) when a trial court’s traditional 

authority to use discretion in the act of sentencing is somehow affected; 

and/or (2) when the sentence imposed is patently inconsistent with the 

sentencing parameters set forth by the General Assembly. See 

Commonwealth v. Foster, 17 A.3d 332, 342 (Pa. 2011). The question of 

whether a claim implicates the legality of a sentence presents a pure 

question of law. Id. at 340 n.13. Issues relating to the legality of a 

sentence are reviewed de novo, and our scope of review is plenary. 

Commonwealth v. Infante, 63 A.3d 358, 363 (Pa. Super. 2013).
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Additionally, “when a negotiated plea includes sentencing terms (or, 

more properly, the Commonwealth’s commitment to recommend a certain 

sentence), the defendant’s knowing and voluntary acceptance of those terms 

rightly extinguishes the ability to challenge a sentence the defendant knew 

was a proper consequence of his plea.” Commonwealth v. Eisenberg, 98 

A.3d 1268, 1277 (Pa. 2014); see also Commonwealth v. Reichle, 589 

A.2d 1140, 1141 (Pa. Super. 1991) (stating that where the plea agreement 

contains a negotiated sentence which is accepted and imposed by the 

sentencing court, there is no authority to permit an excessiveness 

challenge).

Here, Bennett’s claim that his sentence is harsh and excessive does 

not implicate the jurisdiction of the trial court, the validity of Bennett’s plea, 

or the legality of his sentence. See Reichle, 589 A.2d at 1141. Rather, his 

claim presents a challenge to the discretionary aspects of his sentence,

which Bennett waived upon the entry of his nolo contendere plea. Id. Thus, 

Bennett’s claim is waived. For this reason, we conclude that Bennett’s 

appeal is, in fact, wholly frivolous. Accordingly, we affirm his judgment of 

sentence and grant Attorney Connors’s Application to Withdraw.

Application to Withdraw as counsel granted. Judgment of sentence 

affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/16/2015