J-S80016-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CODY ALLEN BREINER

Appellant No. 701 MDA 2016

Appeal from the Judgment of Sentence Entered March 28, 2016

In the Court of Common Pleas of Berks County

Criminal Division at No: CP-06-CR-0005748-2015

BEFORE: LAZARUS, STABILE, and RANSOM, JJ.

MEMORANDUM BY STABILE, J.: FILED DECEMBER 23, 2016

Appellant Cody Allen Breiner appeals from the March 28, 2016 

judgment of sentence entered in the Court of Common Pleas of Berks 

County (“trial court”), following his guilty plea to receiving stolen property 

and firearms not to be carried without a license.1 Appellant’s counsel has 

filed a petition to withdraw, alleging that this appeal is wholly frivolous, and 

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

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). For the reasons 

set forth below, we affirm Appellant’s judgment of sentence, and grant 

counsel’s petition to withdraw.

____________________________________________

1 18 Pa.C.S.A. §§ 3925(a) and 6106(a)(1), respectively.
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The facts and procedural history of this case are undisputed. Briefly, 

Appellant entered into a negotiated guilty plea to the above-referenced 

offenses and the trial court sentenced him to an aggregate term of 364 to 

728 days’ imprisonment,2followed by 5 years of probation on March 28, 

2016. Appellant did not file any post-sentence motions. This timely appeal 

followed.3 After this appeal was filed, on May 25, 2015, Appellant’s counsel 

filed a nunc pro tunc post-sentence motion seeking the withdrawal of his 

guilty plea.4 

On the same day, instead of filing a court-ordered Pa.R.A.P. 1925(b) 

statement of errors complained of on appeal, Appellant’s counsel5filed a 

statement of intent to file an Anders brief under Pa.R.A.P. 1925(c)(4).6 

____________________________________________

2 Appellant received a credit of 143 days for time served.

3 Although Appellant’s notice of appeal is time-stamped April 28, 2018, the 

envelope containing the notice is dated April 26, 2016. Accordingly, we 

conclude that, pursuant to the “prisoner mailbox rule,” Appellant notice of 

appeal was filed on April 26, 2016. See Commonwealth v. Wilson, 911 

A.2d 942, 944 (Pa. Super. 2006) (recognizing that under the “prisoner

mailbox rule” a document is deemed filed when placed in the hands of prison 

authorities for mailing).

4 On June 6, 2016, the trial court permitted Appellant to file the nunc pro 

tunc post-sentence motion to withdraw the guilty plea, but denied him relief 

on the merits. 

5 Because of a conflict of interest, the trial court appointed Abby Rigdon, 

Esquire, as conflict counsel to represent Appellant on this appeal.

6 Rule 1925(c)(4) provides: 

In a criminal case, counsel may file of record and serve on the 

judge a statement of intent to file an [Anders] brief in lieu of 

filing a Statement. If, upon review of the [Anders] brief, the 

appellate court believes that there are arguably meritorious 

(Footnote Continued Next Page)
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Appellant’s counsel noted Appellant intended to raise ineffectiveness claims 

that could not be reviewed on direct appeal. On June 22, 2016, the trial 

court issued a two-page Pa.R.A.P. 1925(a) opinion, concluding that no 

meritorious issues exist for purposes of direct appeal. 

On July 29, 2016, Appellant’s counsel filed in this Court a motion to 

withdraw as counsel and filed an Anders brief, wherein counsel raises two 

issues for our review:

[I.] Did the trial court err in denying the post sentence motion to 

withdraw the guilty plea?

[II.] Was trial counsel ineffective at the guilty plea and 

sentencing hearing and by failing to file post sentence motions?

Anders Brief at 5. 

When presented with an Anders brief, this Court may not review the 

merits of the underlying issues without first examining counsel’s petition to 

withdraw. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 

2007) (en banc). It is well-established that, in requesting a withdrawal, 

counsel must satisfy the following procedural requirements: 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 

(Footnote Continued) _______________________

issues for review, those issues will not be waived; instead, the 

appellate court may remand for the filing of a Statement, a 

supplemental opinion pursuant to Rule 1925(a), or both. Upon 

remand, the trial court may, but is not required to, replace 

appellant’s counsel.

Pa.R.A.P. 1925(c)(4). 
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frivolous; 2) provide a copy of the brief to the defendant; and 3) advise the 

defendant that he or she has the right to retain private counsel, proceed pro 

se or raise additional arguments that the defendant considers worthy of the 

court’s addition. Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super. 

2009).

Instantly, counsel’s petition to withdraw from representation provides 

that counsel reviewed the record and concluded that the appeal is frivolous. 

Furthermore, counsel notified Appellant that she was seeking permission to 

withdraw and provided Appellant with copies of the petition to withdraw and 

his Anders brief. Counsel also advised Appellant of his right to retain new 

counsel, proceed pro se, or raise any additional points he deems worthy of 

this Court’s attention. Accordingly, we conclude that counsel has satisfied 

the procedural requirements of Anders. 

We next must determine whether counsel’s Anders brief complies with 

the substantive requirements of Santiago, wherein our Supreme Court 

held: 

[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. Here, our review of counsel’s brief indicates 

that she has complied with the briefing requirements of Santiago. We, 
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therefore, conclude that counsel has satisfied the minimum requirements of 

Anders/Santiago.

Once counsel has met her obligations, “it then becomes the 

responsibility of the reviewing court to make a full examination of the 

proceedings and make an independent judgment to decide whether the 

appeal is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5. Thus, 

we now turn to the merits of Appellant’s appeal. 

Appellant first argues that the trial court erred in denying his postsentence motion to withdraw a guilty plea. Before we may discuss the 

merits of Appellant’s claim, we must determine whether the trial court had 

jurisdiction to permit the nunc pro tunc filing of the post-sentence motion to 

withdraw the guilty plea. As noted earlier, Appellant here failed to file any 

post-sentence motions within 10 days from the date of sentencing, i.e., by 

April 7, 2016. Instead, Appellant’s counsel filed a nunc pro tunc motion to 

withdraw the negotiated guilty plea on May 25, 2015, almost one month 

after the notice of appeal was filed and nearly two months after the 

imposition of sentence. We recently explained:

[A] post-sentence motion nunc pro tunc may toll the appeal 

period, but only if two conditions are met. First, within 30 days 

of imposition of sentence, a defendant must request the trial 

court to consider a post-sentence motion nunc pro tunc. The 

request for nunc pro tunc relief is separate and distinct from the 

merits of the underlying post-sentence motion. Second, the trial 

court must expressly permit the filing of a post-sentence 

motion nunc pro tunc, also within 30 days of imposition of 

sentence.
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Commonwealth v. Capaldi, 112 A.3d 1242, 1244 (Pa. Super. 2015) 

(emphasis in original) (citation and quotation marks omitted); see 42 

Pa.C.S.A. § 5505 (“Except as otherwise provided or prescribed by law, a 

court upon notice to the parties may modify or rescind any order within 30 

days after its entry, notwithstanding the prior termination of any term of 

court, if no appeal from such order has been taken or allowed.”). Here, 

Appellant filed his nunc pro tunc post-sentence motion nearly 60 days after 

sentencing and almost 30 days after Appellant filed the notice of appeal. 

Accordingly, the trial court did not have jurisdiction to consider the nunc pro 

tunc post-sentence motion.

Next, Appellant argues that his trial counsel rendered ineffective 

assistance. We, however, decline to consider the ineffectiveness claims at 

this juncture based on our Supreme Court’s decision in Commonwealth v. 

Holmes, 79 A.3d 562 (Pa. 2013). In Holmes, our Supreme Court 

reaffirmed its prior holding in Commonwealth v. Grant, 813 A.2d 726 (Pa. 

2002), that, absent certain circumstances, claims of ineffective assistance of 

counsel should be deferred until collateral review under the Post Conviction 

Relief Act (PCRA). See Holmes, 79 A.3d at 576. The specific circumstances 

under which ineffectiveness claims may be addressed on direct appeal are 

not present in the instant case. See id. at 577-78 (holding that the trial 

court may address claims of ineffectiveness where they are “both 

meritorious and apparent from the record so that immediate consideration 

and relief is warranted,” or where the appellant’s request for review of 
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“prolix” ineffectiveness claims is “accompanied by a knowing, voluntary, and 

express waiver of PCRA review”). Accordingly, Appellant must raise his 

ineffectiveness claims in a timely-filed PCRA petition. We, however, express 

no opinion on the merits of such effectiveness claim. 

We have conducted an independent review of the record and 

addressed Appellant’s arguments properly before us on direct appeal. We 

agree with counsel that the issues Appellant seeks to litigate in this appeal 

are wholly frivolous. Also, we do not discern any non-frivolous issues that 

Appellant could have raised. We, therefore, grant counsel’s petition to 

withdraw and affirm the judgment of sentence.

Judgment of sentence affirmed. Petition to withdraw granted. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/23/2016