J-A22014-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DESIRAE FEITL 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 215 WDA 2023

Appeal from the Judgment of Sentence Entered December 1, 2022

In the Court of Common Pleas of Butler County Criminal Division at 

No(s): CP-10-CR-0000749-2021

BEFORE: BOWES, J., OLSON, J., and KING, J.

MEMORANDUM BY BOWES, J.: FILED: April 30, 2024

Desirae Feitl appeals from the judgment of sentence of six and one-half 

to sixteen years of incarceration imposed after she pled guilty to one count of 

delivery of a controlled substance. In this Court, Benjamin B. Levine, Esquire,

has filed a petition to withdraw as counsel and a brief pursuant to Anders v. 

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

A.2d 349 (Pa. 2009). We grant counsel’s petition and affirm Appellant’s 

judgment of sentence. 

We previously provided the following background:

Appellant was a member of a large-scale drug distribution ring. 

At the time of her arrest, she possessed heroin and fentanyl. 

Following a grand jury investigation, Appellant was indicted and 

charged with numerous offenses related to the drug distribution 

ring. Thereafter, Appellant pled guilty to one count of delivery of 

a controlled substance and was sentenced to the [negotiated]
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term indicated above.[1] Appellant subsequently filed a pro se

notice of appeal. Plea counsel withdrew, and the court appointed 

Attorney Levine, who, pursuant to Pa.R.A.P. 1925(c)(4), filed in 

the trial court a statement noting his intention to withdraw from 

representation. Based thereon, the trial court transmitted the 

record to this Court in lieu of filing a Rule 1925(a) opinion. 

Commonwealth v. Feitl, 309 A.3d 1205, 2023 WL 7291255, at *1

(Pa.Super. 2023 (non-precedential decision). Noting deficiencies both in the 

record and with Attorney Levine’s initial brief, we directed him to supplement 

the certified record and submit either an advocate’s brief or new Anders brief 

and application to withdraw. Counsel has complied, and the matter is now 

ripe for review. In counsel’s new Anders brief, he presents nine issues that 

arguably support an appeal:

I. Whether there was a conflict of interest between 

prosecuting Senior Deputy Attorney General Kara Cotter 

and the Butler County District Attorney’s Office?

II. Whether there was a conflict of interest involving Butler 

County District Attorney Richard Goldinger?

III. Whether there was a conflict of interest with Magisterial 

District Judge [(“MDJ”)] Fullerton?

IV. Whether Appellant was improperly denied bond 

modification?

V. Whether Appellant’s sentence in this case is excessive?

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1 Appellant was advised at the time of both her guilty plea and sentencing that 

she was precluded from receiving a recidivism risk reduction incentive 

(“RRRI”) minimum sentence because of a prior conviction and based upon the 

amount of fentanyl involved in the case sub judice. See N.T. Plea, 10/5/22, 

at 11-13; N.T. Sentencing, 12/1/22, at 4, 6-7.
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VI. Whether plea counsel performed his due diligence in 

assisting Appellant?

VII. Whether Appellant was RRRI eligible?

VIII. Whether Appellant was given all work credit hours due her 

while in the Butler County Prison?

IX. Whether Appellant should have received “COVID time” or 

“half time” due to incarceration during the COVID-19 

pandemic?

Anders brief at 9 (reordered for ease of disposition).

Our review is guided by the following legal principles, and begins with 

an assessment of the brief and application to withdraw:

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.

. . . .
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In 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.

Commonwealth v. Stroud, 298 A.3d 1152, 1157–58 (Pa.Super. 2023)

(cleaned up). Counsel has substantially complied with the requirements set 

forth above. Accordingly, we now “proceed to examine the issues counsel 

identified in the Anders brief and then conduct a full examination of all the 

proceedings, to decide whether the case is wholly frivolous.” 

Commonwealth v. Redmond, 273 A.3d 1247, 1252 (Pa.Super. 2022)

(cleaned up).

At the outset, we observe that by entering a negotiated guilty plea with 

an agreed-upon sentence, a defendant forfeits most bases for appeal and

“may generally only appeal matters concerning the jurisdiction of the court, 

the validity of the guilty plea, and the legality of the sentence.” 

Commonwealth v. Brown, 240 A.3d 970, 972 (Pa.Super. 2020) (cleaned 

up). None of Appellant’s first five issues, concerning alleged conflicts of 

interest, denial of bond modification, or the discretionary aspects of her 

negotiated sentence, falls within any of these categories. Accordingly, they 
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are waived, and counsel correctly identified them as frivolous.

2

 See, e.g., 

Commonwealth v. Kalichak, 943 A.2d 285, 291 (Pa.Super. 2008) (holding 

that it would be frivolous to pursue a waived issue on appeal). 

We begin our substantive review, then, by considering the viability of 

the claim that plea counsel rendered ineffective assistance. Generally, such 

claims may not be raised on direct appeal, and instead should be raised in a 

petition pursuant to the Post Conviction Relief Act (“PCRA”) after a defendant’s 

direct appeal rights have been exhausted. There are three limited exceptions 

to this rule: “where (1) there are extraordinary circumstances in which trial 

counsel’s ineffectiveness is apparent from the record and meritorious to the 

extent that immediate consideration best serves the interests of justice[;]” 

(2) where “there is good cause shown, and the defendant knowingly and 

expressly waives his entitlement to seek subsequent PCRA review of his 

conviction and sentence[;]” and (3) “where the defendant is statutorily 

precluded from obtaining subsequent PCRA review.” Commonwealth v. 

James, 297 A.3d 755, 761 (Pa.Super. 2023) (cleaned up). Since we are not 

presented with extraordinary circumstances in which ineffectiveness is 

apparent from the record, that Appellant waived subsequent PCRA review, or 

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2 These issues are likewise waived for failure to present them to the trial court. 

See Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived and 

cannot be raised for the first time on appeal.”); Commonwealth v. Samuel, 

102 A.3d 1001, 1006-07 (Pa.Super. 2014) (listing as one of the requirements 

for invoking our jurisdiction in reviewing a discretionary sentencing issue that 

it was preserved either at sentencing or in a timely post-sentence motion).
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that she is statutorily precluded from later seeking such review, no exceptions 

to the general rule apply here. Id. Thus, we agree with counsel that raising 

an ineffectiveness claim in this appeal would be frivolous.

Appellant’s remaining claims implicate the legality of her sentence. See 

Commonwealth v. Quiles, 166 A.3d 387, 392 (Pa.Super. 2017) (“The 

question of whether a defendant is RRRI eligible presents a question of 

statutory construction and implicates the legality of the sentence imposed.”

(cleaned up)); Commonwealth v. Gibbs, 181 A.3d 1165, 1166 (Pa.Super. 

2018) (“A claim asserting that the trial court failed to award credit for time 

served implicates the legality of the sentence.” (cleaned up)). We review such 

claims de novo. See Gibbs, 181 A.3d at 1166.

Turning first to Appellant’s RRRI claim, we note that “RRRI eligibility 

permits offenders who exhibit good behavior and who complete rehabilitative 

programs in prison to be eligible for reduced sentences.” Quiles, 166 A.3d at 

392 (cleaned up). However, “[n]ot all defendants qualify for RRRI eligibility, 

and, therefore, when a court imposes a sentence of imprisonment in a state 

correctional facility, the court must also determine if the defendant is eligible 

for an RRRI Act minimum sentence.” Id. (cleaned up). 

The RRRI statute defines an “[e]ligible person” as “[a] defendant or 

inmate convicted of a criminal offense who will be committed to the custody 

of the department and who meets all of the following eligibility 

requirements[.]” 61 Pa.C.S. § 4503. One of those requirements is that the 
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defendant has not been found guilty or previously convicted of “[d]rug 

trafficking as defined in [§] 4103[.]” 61 Pa.C.S. § 4503(4). The definition of 

drug trafficking in § 4103 includes “fentanyl or a mixture containing fentanyl, 

if the aggregate weight of the compound or mixture containing the fentanyl is 

[ten] grams or more.” 61 Pa.C.S. § 4103(7) (capitalization altered).

At the sentencing hearing, the trial court properly determined that 

Appellant was statutorily disqualified from receiving a RRRI sentence. See

N.T. Sentencing, 12/1/22, at 7. The certified record bears out that Appellant

personally sold at least 256 grams of heroin/fentanyl during the trafficking 

scheme and, following her arrest, a search of her residence revealed 27.4 

grams of fentanyl. See Presentment No. 14, 5/28/21, at 1, 7-8, 13; see also

N.T. Sentencing, 12/1/22, at 6 (stating that “the overall amount that is alleged 

to have been trafficked through that time period was well over a thousand 

grams”). Moreover, Appellant’s ineligibility was discussed extensively at both 

her plea and sentencing hearings. See N.T. Plea, 10/5/22, at 4, 11-13; N.T. 

Sentencing, 12/1/22, at 4-7. Accordingly, any claim challenging the court’s 

RRRI determination would be frivolous. 

Finally, we consider Appellant’s time credit claims, which are governed 

by 42 Pa.C.S. § 9760, as follows:

After reviewing the information submitted under [§] 9737 

(relating to report of outstanding charges and sentences) the 

court shall give credit as follows:

(1) Credit against the maximum term and any minimum term shall 

be given to the defendant for all time spent in custody as a result 
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of the criminal charge for which a prison sentence is imposed or 

as a result of the conduct on which such a charge is based. Credit 

shall include credit for time spent in custody prior to trial, during 

trial, pending sentence, and pending the resolution of an appeal.

(2) Credit against the maximum term and any minimum term shall 

be given to the defendant for all time spent in custody under a 

prior sentence if he is later reprosecuted and resentenced for the 

same offense or for another offense based on the same act or 

acts. This shall include credit in accordance with paragraph (1) of 

this section for all time spent in custody as a result of both the 

original charge and any subsequent charge for the same offense 

or for another offense based on the same act or acts.

(3) If the defendant is serving multiple sentences, and if one of 

the sentences is set aside as the result of direct or collateral 

attack, credit against the maximum and any minimum term of the 

remaining sentences shall be given for all time served in relation 

to the sentence set aside since the commission of the offenses on 

which the sentences were based.

(4) If the defendant is arrested on one charge and later 

prosecuted on another charge growing out of an act or acts that 

occurred prior to his arrest, credit against the maximum term and 

any minimum term of any sentence resulting from such 

prosecution shall be given for all time spent in custody under the 

former charge that has not been credited against another 

sentence.

42 Pa.C.S. § 9760. 

The trial court awarded 580 days of credit for time spent incarcerated 

on this case prior to sentencing. See N.T. Sentencing, 12/1/22, at 7-8. We 

glean nothing from the record that would contradict this calculation. At the 

time of her sentencing hearing, Appellant sought what has been colloquially 

termed “COVID time.” Specifically, plea counsel advised the court that 

Appellant had “asked [him] to request – respectfully request additional time 

because of the amount of lockdown she was subject to during Covid lockdown 
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. . . [a]nd so, she would ask for an additional 50 percent of the time served[.]” 

N.T. Sentencing, 12/1/22, at 3. The Commonwealth deemed this request 

“ridiculous[,]” and the court denied it because no legal authority existed to 

grant Appellant additional credit for COVID lockdowns. Id. at 6-7. In the 

Anders brief, Attorney Levine admitted that he was “unfamiliar with this 

concept and, despite diligently seeking out prison authorities and conducting 

his own research, he could find no support for Appellant’s novel request. 

Anders brief at 26-27. Upon review, we have reached the same conclusion, 

i.e., no legal authority exists to support time-and-a-half credit for days spent 

in lockdown because of COVID-19 exposures at the jail. Therefore, we agree 

with counsel that the time credit claims are frivolous.

Based on the foregoing and our own independent review of the certified 

record that revealed no non-frivolous issues, we grant Attorney Levine’s 

petition to withdraw and affirm Appellant’s judgment of sentence.

Petition of Benjamin B. Levine, Esquire, to withdraw granted. Judgment 

of sentence affirmed.

DATE: 04/30/2024