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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee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 th e judgment of sentence entered on May 27, 2014, after he pled gui lty to multiple counts of sexual abuse of children and other remaining charge s. Additionally, his court-appointed counsel, Brandon P. Ging, Esquire, and Elliott Howsie, Esquire, have filed an application to withdraw as c ounsel pursuant to Anders v. California , 386 U.S. 738 (1967), and Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009). We affirm the judgment o f sentence and grant counsels’ petition to withdraw.

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* Retired Senior Judge assigned to the Superior Cour t.J-S36006-15

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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 pornograp hy), 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. S eman, Esquire, appeared for a jury trial. Rather than proceed to t rial, however, Sudduth and the Commonwealth entered into a plea agreement. Spe cifically, the Commonwealth agreed to withdraw Count 1, Count 2, C ount 5, Count 8, and Count 10. In exchange, Sudduth agreed to plead guil ty to the remaining charges. The parties also agreed to a sentence of i mprisonment 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). 10 18 Pa.C.S.A. § 901(a).J-S36006-15

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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 S udduth, the trial court accepted the guilty plea. Sudduth waived his right to a pre-sentence investigation report and the trial court immediatel y 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 y ears’ probation at Count 6; three years’ probation at Count 7; and to no fur ther penalty at Count 9. Attorney Seman did not file a post-sentence motion on Sudduth’s behalf. Attorney Ging and Attorney Howsie timely fi led a notice of appeal on Sudduth’s behalf. After two extensions, due to the unavailability of the guilty plea/sentencing transcript, and after a conscientio us review of the record and extensive legal research, appointed counsel con cluded there were no non-frivolous issues to raise on direct appeal. Acc ordingly, they filed a motion to withdraw as counsel with this Court and s ubmitted an Anders brief in support thereof. When court-appointed counsel seek to withdraw from representation on appeal, counsel must meet the following requirem ents. [I]n the Anders brief that accompanies court-appointed counsel’s petition to withdraw, counsel must: (1) p rovide a summary of the procedural history and facts, with c itations to the record; (2) refer to anything in the record th at counsel believes arguably supports the appeal; (3) set fort h counsel’s conclusion that the appeal is frivolous; and (4) st ate counsel’sJ-S36006-15

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reasons for concluding that the appeal is frivolous . Counsel should articulate the relevant facts of record, con trolling 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 re sponsibility of the reviewing court to make a full examination of the p roceedings and make an independent judgment to decide whether the appeal i s in fact wholly frivolous.” Id . at 355 n.5 (citation omitted). Counsel have substantially complied with the techni cal 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 t o 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 respons e to the petition. We will now proceed to examine the issues counsel h ave set forth in the Anders brief. Counsel identifies three issues for our re view. “Settled Pennsylvania law makes clear that by ente ring a guilty plea, the defendant waives his right to challenge on dire ct appeal all nonjurisdictional defects except the legality of the s entence 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 omi tted). Sudduth’s first issue challenges the validity of hi s guilty plea. In order to preserve an issue related to the guilty plea, an appellant must eitherJ-S36006-15

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“object[ ] at the sentence colloquy or otherwise ra is[e] the issue at the sentencing hearing or through a post-sentence motio n.” Commonwealth v. Tareila , 895 A.2d 1266, 1270 n.3 (Pa. Super. 2006) (citati on omitted; brackets in original). Here, Sudduth did neither. T herefore, 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 appea l the validity of his guilty plea. See Pa.R.A.P. 302(a). Thus, we agree with counsels’ as sessment 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 sente nce. He somehow believes that the sentence imposed on each count ex ceeds the applicable statutory maximums. This claim is patently frivolou s. “An illegal sentence is one that exceeds the statut ory 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 felon y is “a term which shallJ-S36006-15

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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 Sectio n 1103(3). Therefore, we conclude there is no basis upon which to challenge the legality of Sudduth’s sentence and we agree with counsel tha t this issue is frivolous. Finally, we consider a challenge to the discretiona ry aspects of Sudduth’s sentence. This presents another waived cl aim. Sudduth never preserved this issue in the lower court. See Commonwealth v. Shugars , 895 A.2d 1270, 1273-1274 (Pa. Super. 2006) (describ ing how discretionary aspects of sentencing claim must be preserved). The refore, 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 A ppellant 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, w e concur with counsel’s assessment that the appeal is wholly frivolous.
Judgment of sentence affirmed. Petition to withdraw as counsel granted. Judgment Entered.J-S36006-15

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Joseph D. Seletyn, Esq. Prothonotary

Date: 7/27/2015