J-S03028-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ERIC ELROD

Appellant No. 1758 EDA 2014

Appeal from the Judgment of Sentence May 16, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0000057-2011

BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OTT, J.

MEMORANDUM BY PANELLA, J. FILED APRIL 07, 2015

Appellant, Eric Elrod, appeals from the judgment of sentence entered 

May 16, 2014, in the Court of Common Pleas of Philadelphia County. 

Additionally, Elrod’s court-appointed counsel, Bobby Ochoa III, Esquire, has 

filed an application to withdraw as counsel pursuant to Anders v. 

California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 

A.2d 349 (Pa. 2009). After careful review, we affirm Elrod’s judgment of 

sentence and grant counsel’s petition to withdraw.

On February 12, 2014, Elrod entered a negotiated nolo contendere

plea to indecent assault of a person less than 13 years of age1and 

____________________________________________

1 18 Pa.C.S.A. § 3126.
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corruption of minors.2 At the plea hearing, the Commonwealth set forth the 

facts underlying the plea as follows.

Your Honor, had this matter gone to trial the Commonwealth 

would have proven beyond a reasonable doubt that between the 

dates of October 1, 2009 and January of 2010 on diverse dates 

the defendant did place his hand on the private area of the 

complainant who is [S.C.T.] who was at the time ten years old. 

Her date of birth is September 26, ’99. That touching was over 

the clothing. ... It occurred on at least three occasions. 

Plea Hearing, 2/12/14 at 10. Pursuant to the agreement, the trial court 

sentenced Elrod to one and one-half to three years’ imprisonment for 

corruption of minors. Following a hearing, Elrod was determined to be a 

sexually violent predator, and the trial court sentenced him to a consecutive 

seven years’ probation for indecent assault. This timely appeal followed. 

Preliminarily, we note that Attorney Ochoa has requested to withdraw 

and has submitted an Anders brief in support thereof contending that 

Elrod’s appeal is frivolous. The Pennsylvania Supreme Court has articulated 

the procedure to be followed when court-appointed counsel seeks to 

withdraw from representing an appellant on direct appeal.

[I]n 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 arguably believes 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 

____________________________________________

2 18 Pa.C.S.A. § 6301. 
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record, controlling case law, and/or statutes on point that 

have led to the conclusion that the appeal is frivolous. 

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

We note that Attorney Ochoa has substantially complied with all of the 

requirements of Anders as articulated in Santiago. Additionally, Attorney 

Ochoa confirms that he sent a copy of the Anders brief as well as a letter 

explaining to Elrod that he has the right to proceed pro se or the right to 

retain new counsel. A copy of the letter is appended to Attorney Ochoa’s 

petition. See Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 

2010); Commonwealth v. Millisock, 873 A.2d 748, 749 (Pa. Super. 

2005). 

We now proceed to examine the issues counsel set forth in the Anders

brief.3 Elrod first contends that the trial court imposed an illegal sentence. 

It is well-established that “[i]f no statutory authorization exists for a 

particular sentence, that sentence is illegal and subject to correction.” 

Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa. Super. 2014) 

(citation omitted). “An illegal sentence must be vacated.” Id. “Issues 

relating to the legality of a sentence are questions of law[.] ... Our standard 

of review over such questions is de novo and our scope of review is plenary.” 

Id. (citation omitted). 

____________________________________________

3 Elrod has not filed a response to Attorney Ochoa’s petition to withdraw. 
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We find no indication that the trial court imposed an illegal sentence. 

Elrod entered a nolo contendere plea to indecent assault, a felony of the 

third degree and corruption of minors, a misdemeanor of the first degree. 

See 18 Pa.C.S.A. §§ 3126(b)(3) and 6301(a)(1)(i), respectively. A thirddegree felony carries a maximum term of imprisonment of seven years; a 

first-degree misdemeanor carries a maximum term of imprisonment of five 

years. See 18 Pa.C.S.A. § 1103(3) and 18 Pa.C.S.A. § 1104(1), 

respectively. As previously noted, the trial court sentenced Elrod to one and 

one-half to three years’ imprisonment for corruption of minors a consecutive 

term of seven years’ probation for indecent assault. These sentences fall 

squarely within the standard range and clearly do not exceed the statutory 

maximum permitted for the crimes committed. We therefore concur with 

counsel’s assessment that a challenge to the legality of the sentence 

imposed is indeed frivolous. 

Elrod next maintains that his negotiated nolo contendere was 

involuntarily, unknowingly or unintelligently entered. A review of the record, 

however, reveals that Elrod did not challenge his nolo contendere plea either 

at sentencing or in a post-sentence motion. As such, we are constrained to 

find that Elrod has waived this issue on appeal. See Pa.R.A.P. 302(a) 

(“Issues not raised in the lower court are waived and cannot be raised for 

the first time on appeal.”); Commonwealth v. Tareila, 895 A.2d 1266, 

1270 n.3 (Pa. Super. 2006) (“Where an appellant fails to challenge his guilty 

plea in the trial court, he may not do so on appeal.”).
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Finally, Elrod purports to challenge trial counsel’s effectiveness. Apart 

from two limited exceptions not pertinent here, claims of ineffective 

assistance of counsel cannot be raised on direct review. See 

Commonwealth v. Holmes, 79 A.3d 562, 563 (Pa. 2013). Accordingly, 

Elrod cannot raise this claim on direct review; this issue of ineffectiveness of 

trial counsel must await collateral review.

After examining the issues contained in the Anders brief and after 

undertaking our independent review of the record, we concur with counsel’s 

assessment that the appeal is wholly frivolous. 

Judgment of sentence affirmed. Permission to withdraw as counsel is 

granted. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/7/2015