J-S50013-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

TRACY R. MARTIN

Appellant No. 3864 EDA 2016

Appeal from the Judgment of Sentence November 17, 2016

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0006054-2016

BEFORE: PANELLA, J., MOULTON, J., and RANSOM, J.

MEMORANDUM BY PANELLA, J. FILED OCTOBER 12, 2017

Appellant, Tracy Martin, pled guilty to one count of failing to stop after 

an accident causing damage to an attended vehicle, 75 Pa.C.S.A. § 3743. 

The trial court proceeded to impose the negotiated sentence of time served 

– approximately 3 months – to 12 months’ imprisonment. In this appeal, 

Martin’s court-appointed counsel, Patrick J. Connors, Esquire, seeks 

permission to withdraw as counsel. As such, he has filed a brief 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 the 

judgment of sentence and grant Attorney Connors permission to withdraw.

Attorney Connors has complied with the mandated procedure for 

withdrawing as counsel. See Santiago, 978 A.2d at 361 (articulating 

Anders requirements); Commonwealth v. Daniels, 999 A.2d 590, 594 
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(Pa. Super. 2010) (providing that counsel must inform client by letter of 

rights to proceed once counsel moves to withdraw and append a copy of the 

letter to the petition). Martin has not filed a response to counsel’s petition to 

withdraw.1

Counsel has identified one issue that Martin believes entitles him to 

relief. Martin wishes to challenge the sentence imposed by the trial court. 

We begin by observing that the maximum sentence imposed was not above 

the statutory maximum. See 75 Pa.C.S.A. § 3743(b) (“Any person violating 

this section commits a misdemeanor of the third degree, punishable by ... 

imprisonment for not more than one year ....”) Nor is there any indication 

the court imposed a mandatory minimum sentence. Martin has not identified 

any other possible issue with the legality of his sentence.

We therefore turn to the discretionary aspects of his sentence. As

Martin negotiated this sentence as part of his guilty plea agreement, he is 

precluded from challenging the discretionary aspects of his sentence. See 

Commonwealth v. O’Malley, 957 A.2d 1265, 1267 (Pa. Super. 2008). 

Thus, we agree with Attorney Connor’s assessment that any challenge to 

Martin’s sentence is frivolous.

____________________________________________

1 Martin did file a response when Attorney Connors filed his notice of intent 

to file an Anders brief in lieu of a statement of matters complained of on 

appeal. In that response, Martin identified two issues he wished to raise on 

appeal: the legality of the sentence imposed and ineffective assistance of 

counsel. We address both issues in this memorandum.
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Next, we address the issue raised by Martin in his pro se response to 

Attorney Connors’s notice of intent to file an Anders brief. Martin argues 

that both Attorney Connors and another member of the Delaware County 

Public Defender’s Office rendered ineffective assistance of counsel. 

Generally, claims of ineffectiveness of counsel are not ripe until 

collateral review. See Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 

2013). However, in extraordinary cases where the trial court determines that 

the claim of ineffectiveness is “both meritorious and apparent from the 

record,” it may exercise its discretion to consider the claim in a postsentence motion. Id., at 577. 

In Holmes, the Supreme Court of Pennsylvania explicitly identified 

ineffectiveness claims as “presumptively reserved for collateral attack[.]” 

Id., at 577 n.10. The Court warned against trial courts appointing “new 

counsel post-verdict to search for ineffectiveness claims.” Id. Thus, while 

the trial court retains discretion in addressing such claims, the presumption 

weighs heavily in favor of deferring such claims to collateral review.

Further, the Court justified the creation of the “meritorious and 

apparent from the record” exception by explaining that “[t]he administration 

of criminal justice is better served by allowing trial judges to retain the 

discretion to consider and vindicate such distinct claims of ineffectiveness[.]” 

Id., at 577 (emphasis added). Most importantly, the Court required an 
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express waiver of the right to file a first, timely PCRA petition. See id., at 

579.

Martin failed to expressly forgo his right to file a timely, first PCRA 

petition. Furthermore, this issue was never presented to the trial court in 

any filing. It is not even clear, from Martin’s handwritten filing, what he

believes was ineffective about the Public Defender’s office’s representation. 

For all these reasons, we conclude that Martin’s claim that counsel was 

ineffective would be frivolous in this direct appeal.

As a result, we agree with Attorney Connors’s assessment that this 

appeal is wholly frivolous. We therefore grant his petition to withdraw, and 

affirm the judgment of sentence.

Judgment of sentence affirmed. Permission to withdraw as counsel 

granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/12/2017