J-S61020-15

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

JASON PAUL FAY,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 614 MDA 2015

Appeal from the Judgment of Sentence September 20, 2012, 

in the Court of Common Pleas of Susquehanna County, 

Criminal Division, at No.: CP-58-CR-0000251-2011

BEFORE: PANELLA, WECHT, and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.: FILED DECEMBER 06, 2016

Jason Paul Fay (Fay) appeals from the judgment of sentence entered 

September 20, 2012, in the Court of Common Pleas of Susquehanna County. 

Additionally, Fay’s counsel has filed a petition to withdraw and a brief 

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

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We affirm the 

judgment of sentence and grant the petition to withdraw.

This Court previously summarized the background underlying this 

matter as follows.

In the spring of 2010, Fay committed a series of 

burglaries, thefts, and related crimes in Susquehanna County, 

Pennsylvania. Around the same time, Fay perpetrated similar 

crimes in nearby counties. Fay was charged accordingly in the 

respective counties.

In Susquehanna County, Fay was charged in three 

separate criminal informations for his string of crimes. After 
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some cooperation and negotiation, Fay agreed to plead guilty to 

three counts of burglary. As part of the plea agreement, the 

Commonwealth agreed to each of the burglary sentences being 

run concurrently with each other. The Commonwealth also 

agreed not to object to Fay’s request that the trial court run his 

Susquehanna sentences concurrently with any sentences that he 

was serving, or would serve, in ... Lackawanna County [if he 

received a sentence there of four to eight years].

On August 24, 2012, Fay pleaded guilty according to the 

agreement. The Commonwealth nolle prossed all of the 

remaining charges. On September 20, 2012, the trial court 

sentenced Fay to two to fifteen years’ incarceration on each 

burglary count, and ordered each sentence to run concurrently 

to each other per the plea agreement. However, the trial court 

ordered these sentences to run consecutively, not concurrently, 

to any other sentence that was imposed for his actions outside of 

Susquehanna County. The Commonwealth upheld its end of the 

bargain. The Commonwealth did not object to Fay’s request that 

all of the sentences run concurrently. However, the victims of 

the burglaries did object. The trial court heeded the victim[s’] 

objections, and sentenced Fay accordingly. Fay filed a postsentence motion, which the trial court denied on October 17, 

2012.

Fay filed a notice of appeal on November 20, 2012, which 

was beyond the thirty-day appeal period. On [January 17, 

2013], this Court, noting our lack of jurisdiction due to Fay’s 

untimely notice of appeal, quashed Fay’s direct appeal.

Thereafter, Fay filed multiple petitions for relief pursuant 

to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-

46. Subsequently, the trial court granted relief to Fay, and 

reinstated Fay’s direct appeal rights. On April 7, 2015, Fay filed 

a notice of appeal. The trial court did not order Fay to file a 

Pa.R.A.P. 1925(b) concise statement of errors complained of on 

appeal, and Fay did not file a statement.

Commonwealth v. Fay, 134 A.3d 108 (Pa. Super. 2015) (unpublished 

memorandum at 2-3) (footnote omitted).
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On appeal, Fay’s counsel, Attorney Frederick J. Meagher, Jr., filed a 

petition to withdraw and Anders brief with this Court, which denied the 

petition for his failure to comply with Anders and its progeny in numerous 

respects. Id. at 4-7. We remanded the matter for Attorney Meagher to 

complete the record and file either a compliant Anders brief or advocate’s 

brief. Id. at 7. Following remand, Attorney Meagher filed a supplemental 

brief. Concluding that Attorney Meagher still had not complied with the 

procedure for withdrawal and that the record was still incomplete, we again 

denied Attorney Meagher’s petition to withdraw and remanded with 

instructions. Commonwealth v. Fay, 144 A.3d 210 (Pa. Super. 2016) 

(unpublished memorandum at 4-6). 

Following receipt of a letter from Attorney Meagher “suggest[ing] that 

[he] have another 30 days to wrap this up,” we denied his request and 

directed the trial court to revoke his appointment and appoint competent 

counsel to represent Fay on appeal.1 Order, 5/19/2016. Thereafter, 

Attorney Laurence M. Kelly was appointed to represent Fay and, on July 21, 

2016, he filed an Anders brief with this Court.2 Because Attorney Kelly had 

not filed an accompanying petition to withdraw, this Court directed him to do 

 

1 We also directed the trial court to withhold any fees which would normally 

be paid to Attorney Meagher for the appeal and directed him to reimburse 

the county if he had already received any fees. Order, 5/19/2016.

2 We note that the record was also supplemented with transcripts that 

previously had been missing.
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so by order dated September 8, 2016, and provided Fay with 30 days 

following the filing of the petition to respond. Attorney Kelly filed his petition 

to withdraw on September 14, 2016. Thus, we now turn to our analysis of 

Attorney Kelly’s petition and brief pursuant to Anders/Santiago.

As this Court has repeatedly stated throughout this protracted appeal, 

the following principles guide our review of this matter.

Direct appeal counsel seeking to withdraw under Anders must 

file a petition averring that, after a conscientious examination of 

the record, counsel finds the appeal to be wholly frivolous. 

Counsel must also file an Anders brief setting forth issues that 

might arguably support the appeal along with any other issues 

necessary for the effective appellate presentation thereof....

Anders counsel must also provide a copy of the Anders

petition and brief to the appellant, advising the appellant of the 

right to retain new counsel, proceed pro se or raise any 

additional points worthy of this Court’s attention.

If counsel does not fulfill the aforesaid technical 

requirements of Anders, this Court will deny the petition to 

withdraw and remand the case with appropriate instructions 

(e.g., directing counsel either to comply with Anders or file an 

advocate’s brief on Appellant’s behalf). By contrast, if counsel’s 

petition and brief satisfy Anders, we will then undertake our 

own review of the appeal to determine if it is wholly frivolous. If 

the appeal is frivolous, we will grant the withdrawal petition and 

affirm the judgment of sentence. However, if there are nonfrivolous issues, we will deny the petition and remand for the 

filing of an advocate’s brief. 

Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007) 

(citations omitted). Our Supreme Court has expounded further upon the 

requirements of Anders as follows.
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[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 

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.

Based upon a generous reading of Attorney Kelly’s petition to withdraw 

and Anders brief, we conclude that his efforts just barely meet the 

threshold of substantial compliance with the above requirements. Given that 

Attorney Meagher substantially and repeatedly failed to comply with those 

requirements, Fay availed himself of the opportunity to raise additional 

issues before this Court,3the protracted nature of this appeal, and our 

responsibility to conduct an independent review of the record in view of 

issues both raised and not raised pursuant to Commonwealth v. Flowers, 

113 A.3d 1246 (Pa. Super. 2015), we proceed with our analysis herein. Id.

at 1248 (quoting Santiago, 978 A.2d at 354 n.5) (stating that once 

“counsel has met these obligations, ‘it then becomes the responsibility of the 

reviewing court to make a full examination of the proceedings and make an 

 

3 Although Fay did not file a response to Attorney Kelly’s petition to 

withdraw, Fay filed a response to Attorney Meagher’s original petition to 

withdraw.
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independent judgment to decide whether the appeal is in fact wholly 

frivolous.’”).

A review of the Anders brief reveals that the only issue of arguable 

merit raised concerns the voluntariness of Fay’s guilty pleas. Attorney Kelly 

essentially states that this issue is frivolous because the record, particularly 

the written and oral guilty plea colloquies, establish that the pleas were 

entered voluntarily; Fay is bound by the statements he made therein and 

cannot assert grounds for withdrawing the plea that contradict those 

statements. Anders Brief at 7-10 (quoting Commonwealth v. Barnes, 

687 A.2d 1163, 1167 (Pa. Super. 1996); Commonwealth v. Yeomans, 24 

A.3d 1044, 1047 (Pa. Super. 2011)). 

Although we agree with Attorney Kelly’s conclusion that a challenge to 

the voluntariness of Fay’s guilty pleas is frivolous, we do so on a different 

basis. Specifically, Fay did not challenge the voluntariness of his pleas 

during the plea colloquy or file a post-sentence motion to withdraw the plea. 

Thus, he has failed to preserve this issue, and it is waived. 

Commonwealth v. Lincoln, 72 A.3d 606, 609-10 (Pa. Super. 2013) 

(citation omitted) (“A defendant wishing to challenge the voluntariness of a 

guilty plea on direct appeal must either object during the plea colloquy or file 

a motion to withdraw the plea within ten days of sentencing. Failure to 

employ either measure results in waiver.”). An issue that is waived is 
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frivolous. See Commonwealth v. Kalichak, 943 A.2d 285, 291 (Pa. 

Super. 2008) (holding that when an issue has been waived, “pursuing th[e] 

matter on direct appeal is frivolous”).

In the Anders brief, Attorney Kelly also presents a challenge to the 

validity of Fay’s guilty pleas on the basis of ineffective assistance of Fay’s 

counsel. Attorney Kelly proposes that this matter be remanded to the trial 

court so that it can conduct a hearing on Fay’s ineffectiveness claim in this 

regard, though he acknowledges that such claims are generally deferred to 

collateral review. Anders Brief at 10-12. 

Fay’s ineffectiveness claim is not properly before this Court at this 

juncture. See Commonwealth v. Holmes, 79 A.3d 562, 576 (Pa. 2013) 

(explaining that, absent certain circumstances not present herein, “claims of

ineffective assistance of counsel are to be deferred to PCRA review; ... such

claims should not be reviewed upon direct appeal.”). Thus, this issue is 

frivolous insofar as it is not cognizable on direct appeal.

Though not raised in Attorney Kelly’s Anders brief, we next address 

the issue raised in the Anders brief filed by Attorney Meagher prior to 

Attorney Kelly’s appointment: whether the trial court abused its discretion 

in imposing consecutive rather than concurrent sentences.

Challenges to the discretionary aspects of sentencing do not 

entitle an appellant to review as of right. An appellant 

challenging the discretionary aspects of his sentence must 

invoke this Court’s jurisdiction by satisfying a four-part test:
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We conduct a four-part analysis to determine: (1) whether 

appellant has filed a timely notice of appeal, see Pa.R.A.P. 

902 and 903; (2) whether the issue was properly 

preserved at sentencing or in a motion to reconsider and 

modify sentence, see Pa.R.Crim.P. 720; (3) whether 

appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and 

(4) whether there is a substantial question that the 

sentence appealed from is not appropriate under the 

Sentencing Code, 42 Pa.C.S.[] § 9781(b). 

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some 

citations omitted).

Fay filed a timely notice of appeal nunc pro tunc and presented his 

claim in a post-sentence motion. Although Attorney Meagher’s brief did not 

include a Rule 2119(f) statement, we nonetheless proceed to determine 

whether Fay’s claim raises a substantial question. Commonwealth v. 

Bynum-Hamilton, 135 A.3d 179, 184 (Pa. Super. 2016) (quoting 

Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa. Super. 2015)) 

(“Although counsel has not included the requisite Pa.R.A.P. 2119(f) 

statement in his Anders brief herein, ‘[w]here counsel files an Anders brief, 

this Court has reviewed the matter even absent a separate Pa.R.A.P. 2119(f) 

statement. Hence, we do not consider counsel’s failure to submit a Rule 

2119(f) statement as precluding review of whether Appellant’s issue is 

frivolous.’”).

The determination of what constitutes a substantial question must be 

evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825, 
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828 (Pa. Super. 2007). “A substantial question exists only when the 

appellant advances a colorable argument that the sentencing judge’s actions 

were either: (1) inconsistent with a specific provision of the Sentencing 

Code; or (2) contrary to the fundamental norms which underlie the 

sentencing process.” Griffin, 65 A.3d at 935 (citation and quotation marks 

omitted).

Although Attorney Meagher failed to present any argument with 

respect to Fay’s discretionary-aspects claim in his Anders brief, our 

independent review of the record reveals that, in his post-sentence motion, 

Fay challenged the consecutive nature of his sentences as excessive in light 

of various mitigating factors.4 This claim does not raise a substantial 

question. See Commonwealth v. Johnson, 961 A.2d 877, 880 (Pa. 

Super. 2008) (holding that Johnson’s “assertion of abuse of discretion for 

imposing consecutive sentences without properly considering mitigating 

factors fails to present a substantial question to justify this Court’s review of 

 

4 Because the trial court had the benefit of a pre-sentence investigation 

report (PSI), it is presumed that it considered the relevant mitigating 

factors. Griffin, 65 A.3d at 937 (quoting Commonwealth v. Devers, 546 

A.2d 12, 18 (Pa. 1988)) (“Where the sentencing court had the benefit of a 

[PSI], we can assume the sentencing court ‘was aware of relevant 

information regarding the defendant’s character and weighed those 

considerations along with mitigating statutory factors.’”). 
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his claim”). Thus, Fay’s discretionary-aspects-of-sentence claim is 

frivolous.5

Lastly, we observe that in his pro se response to Attorney Meagher’s 

petition to withdraw, Fay argued that Attorney Meagher did not comply with 

the requirements for withdrawal. In so doing, he alleged that Attorney 

Meagher did not present argument in support of Fay’s claims challenging the 

consecutive nature of his sentence, the validity of his guilty pleas, and 

whether the trial court erred “when the Honorable ... Kenneth W. Seamans 

refused to recuse himself.” Fay’s Response to Counsel’s Anders Brief at 10. 

Fay’s claims challenging the discretionary aspects of his sentence and the 

validity of his guilty pleas are frivolous for the reasons stated above. As for 

the issue of whether Judge Seamans erred in failing to recuse himself, we 

note that “[i]t is well-settled that a party seeking recusal or disqualification 

must raise the objection at the earliest possible moment or that party will 

suffer the consequence of being time barred.” Commonwealth v. Pappas, 

845 A.2d 829, 846 (Pa. Super. 2004). There is no indication in the record 

 

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In his post-sentence motion, Fay also alleged that his maximum sentence 

was excessive, particularly in light of mitigating factors. We likewise 

conclude that such a claim does not raise a substantial question. See 

Commonwealth v. Cannon, 954 A.2d 1222, 1229 (Pa. Super. 2008)

(explaining that “this Court has held on numerous occasions that a claim of 

inadequate consideration of mitigating factors does not raise a substantial 

question for our review” and concluding that “Cannon has failed to present a 

substantial question that his sentence was excessive”). Thus, any issue in 

this regard is frivolous as well.
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that Fay sought recusal before the trial court at any point and, thus, this 

issue is waived. Id.; see also Commonwealth v. Boyd, 835 A.2d 812, 

820 (Pa. Super. 2003) (holding that a claim that the trial judge erred in not 

recusing himself and in not holding an evidentiary hearing on the issue was 

waived because the trial court stated that it was never presented with a 

motion to recuse and Boyd did not direct the Court to any location in the 

record that reflects that he filed such a motion, nor did Boyd even allege 

that he did so). As explained earlier, an issue that is waived is frivolous.

Kalichak, 943 A.2d at 291.

Accordingly, we conclude that the issues raised in this direct appeal 

are frivolous. Moreover, we have conducted “a full examination of the 

proceedings” and conclude that “the appeal is in fact wholly frivolous.” 

Flowers, 113 A.3d at 1248. Thus, we affirm the judgment of sentence and 

grant Attorney Kelly’s petition to withdraw.
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Judgment of sentence affirmed. Petition to withdraw granted.

Judge (now Justice) Wecht did not participate in the consideration or 

decision of this Memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/6/2016