J-S36006-15 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

CLAYTON MICHAEL SUDDUTH 

 Appellant No. 1004 WDA 2014 

Appeal from the Judgment of Sentence May 27, 2014 

In the Court of Common Pleas of Allegheny County 

Criminal Division at No(s): CP-02-CR-0017328-2013 

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

MEMORANDUM BY PANELLA, J. FILED JULY 27, 2015 

 

Appellant, Clayton Michael Sudduth, appeals from the judgment of 

sentence entered on May 27, 2014, after he pled guilty to multiple counts of 

sexual abuse of children and other remaining charges. Additionally, his 

court-appointed counsel, Brandon P. Ging, Esquire, and Elliott Howsie, 

Esquire, have 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). We affirm the judgment of sentence 

and grant counsels’ petition to withdraw. 

 

____________________________________________ 

*

 Retired Senior Judge assigned to the Superior Court. 
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 On November 13, 2013, Sudduth was charged with the following 

crimes: Count 1 — criminal solicitation (involuntary deviate sexual 

intercourse),1 Count 2 — unlawful contact with a minor,2 Count 3 — sexual 

abuse of children (dissemination of photographs),3 Count 4 — sexual abuse 

of children (dissemination of photographs),4 Count 5 — sexual abuse of 

children (dissemination of photographs),5 Count 6 — sexual abuse of 

children (child pornography),6 Count 7 — sexual abuse of children (child 

pornography),7 Count 8 — sexual abuse of children (child pornography),8

Count 9 — criminal use of communication facility,9 and Count 10 — criminal 

attempt (corruption of minors).10

 On May 27, 2014, Sudduth, represented by Owen M. Seman, Esquire, 

appeared for a jury trial. Rather than proceed to trial, however, Sudduth and 

the Commonwealth entered into a plea agreement. Specifically, the 

Commonwealth agreed to withdraw Count 1, Count 2, Count 5, Count 8, and 

Count 10. In exchange, Sudduth agreed to plead guilty to the remaining 

charges. The parties also agreed to a sentence of imprisonment of not less 

____________________________________________ 

1

 18 Pa.C.S.A. § 902(a). 

2

 18 Pa.C.S.A. § 6318(a)(1). 

3

 18 Pa.C.S.A. § 6312(c). 

4

 18 Pa.C.S.A. § 6312(c). 

5

 18 Pa.C.S.A. § 6312(c). 

6

 18 Pa.C.S.A. § 6312(d). 

7

 18 PA.C.S.A. § 6312(d). 

8

 18 Pa.C.S.A. § 6312(d). 

9

 18 Pa.C.S.A. § 7512(a). 

1018 Pa.C.S.A. § 901(a). 
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than two to four years and to a period of probation to be set by the trial 

court. 

 After conducting an extensive oral colloquy with Sudduth, the trial 

court accepted the guilty plea. Sudduth waived his right to a pre-sentence 

investigation report and the trial court immediately sentenced him as 

follows: to a term of imprisonment of not less than two to four years at 

Count 3; three years’ probation at Count 4; three years’ probation at Count 

6; three years’ probation at Count 7; and to no further penalty at Count 9. 

 Attorney Seman did not file a post-sentence motion on Sudduth’s 

behalf. Attorney Ging and Attorney Howsie timely filed a notice of appeal on 

Sudduth’s behalf. 

 After two extensions, due to the unavailability of the guilty 

plea/sentencing transcript, and after a conscientious review of the record 

and extensive legal research, appointed counsel concluded there were no 

non-frivolous issues to raise on direct appeal. Accordingly, they filed a 

motion to withdraw as counsel with this Court and submitted an Anders

brief in support thereof. 

When court-appointed counsel seek to withdraw from representation 

on appeal, counsel must meet the following requirements. 

[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 
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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. Santiago, 978 A.2d 349, 361 (Pa. 2009). Once counsel 

have met their 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.” Id. at 355 n.5 (citation omitted). 

Counsel have substantially complied with the technical requirements of 

Anders as articulated in Santiago. Additionally, counsel confirm that they 

sent a copy of the Anders brief to Sudduth, as well as a letter explaining to 

Sudduth that he has the right to proceed pro se or the right to retain new 

counsel. Counsel have appropriately appended a copy of the letter to the

motion to withdraw. Sudduth has not filed a response to the petition. 

We will now proceed to examine the issues counsel have set forth in 

the Anders brief. Counsel identifies three issues for our review. 

 “Settled Pennsylvania law makes clear that by entering a guilty plea, 

the defendant waives his right to challenge on direct appeal all nonjurisdictional defects except the legality of the sentence and the validity of 

the plea.” Commonwealth v. Lincoln, 72 A.3d 606, 609 (Pa. Super. 2013), 

appeal denied, 87 A.3d 319 (Pa. 2014) (citation omitted). 

Sudduth’s first issue challenges the validity of his guilty plea. In order 

to preserve an issue related to the guilty plea, an appellant must either 
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“object[ ] at the sentence colloquy or otherwise rais[e] the issue at the 

sentencing hearing or through a post-sentence motion.” Commonwealth v. 

Tareila, 895 A.2d 1266, 1270 n.3 (Pa. Super. 2006) (citation omitted; 

brackets in original). Here, Sudduth did neither. Therefore, this issue is 

waived. “Where an appellant fails to challenge his guilty plea in the trial 

court, he may not do so on appeal.” Id. (citation omitted). 

 Since Sudduth failed to preserve this issue prior to this appeal, he 

cannot challenge for the first time on direct appeal the validity of his guilty 

plea. See Pa.R.A.P. 302(a). Thus, we agree with counsels’ assessment that 

this claim is frivolous. See Commonwealth v. Hankerson, ___ A.3d ___, 

___, 2015 WL 3549969, *4 (Pa. Super., filed June 8, 2015) (waived claim is 

frivolous). 

 Next, Sudduth challenges the legality of his sentence. He somehow 

believes that the sentence imposed on each count exceeds the applicable 

statutory maximums. This claim is patently frivolous. 

“An illegal sentence is one that exceeds the statutory limits.” 

Commonwealth v. Bradley, 834 A.2d 1127, 1131 (Pa. 2003) (citations 

omitted).

Sudduth was sentenced at five charges, each charge being graded as a 

felony of the third degree. See N.T., Sentencing, 5/27/14, at 13-15. The 

statutory maximum sentence for a third-degree felony is “a term which shall 
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be fixed by the court at not more than seven years.” 18 Pa.C.S.A. § 

1103(3). 

 None of the sentences imposed runs afoul of Section 1103(3). 

Therefore, we conclude there is no basis upon which to challenge the legality 

of Sudduth’s sentence and we agree with counsel that this issue is frivolous. 

Finally, we consider a challenge to the discretionary aspects of 

Sudduth’s sentence. This presents another waived claim. Sudduth never 

preserved this issue in the lower court. See Commonwealth v. Shugars, 

895 A.2d 1270, 1273-1274 (Pa. Super. 2006) (describing how discretionary 

aspects of sentencing claim must be preserved). Therefore, this claim is 

waived. See id., at 1274. See also Commonwealth v. LeBarre, 961 A.2d 

176, 178 (Pa. Super. 2008) (“We find that because Appellant did not raise 

his discretionary aspects claim below, it is waived.”). Thus, we agree with 

counsels’ assessment that this claim is frivolous. See Hankerson, ___ A.3d 

at ___, 2015 WL 3549969, *4. 

After examining the issues contained in the Anders brief and 

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

assessment that the appeal is wholly frivolous. 

Judgment of sentence affirmed. Petition to withdraw as counsel granted. 

Judgment Entered. 
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Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 7/27/2015