J-S46035-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF 

: PENNSYLVANIA 

Appellee : 

: 

v. : 

: 

TOBY L. OLIVER, : 

: 

Appellant : No. 2210 MDA 2013 

Appeal from the Judgment of Sentence entered on June 19, 2012 

in the Court of Common Pleas of Lackawanna County, 

Criminal Division, No. CP-35-CR-0001874-2011 

BEFORE: SHOGAN, LAZARUS and MUSMANNO, JJ. 

MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 20, 2014 

Toby L. Oliver (“Oliver”) appeals from the judgment of sentence 

entered following his conviction of three counts each of possession of a 

controlled substance with intent to deliver (“PWID”) and possession of a 

controlled substance, and one count each of possession of drug 

paraphernalia and possession of a small amount of marijuana.1

 Additionally, 

Oliver’s court-appointed counsel, Kurt T. Lynott, Esquire (“Attorney Lynott”), 

has filed a Petition to Withdraw as counsel and an accompanying brief 

pursuant to Anders v. California, 386 U.S. 738, 744 (1967). We grant 

Attorney Lynott’s Petition to Withdraw, and affirm the judgment of sentence. 

 In June 2011, a confidential police informant, cooperating with the 

Lackawanna County United Drug Task Force, conducted four controlled buys 

of marijuana from Oliver’s residence, located in Carbondale, Pennsylvania. 

 

1 See 35 P.S. §§ 780-113(a)(30), (a)(16), (a)(32), (a)(31).
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The police subsequently secured a search warrant, and discovered in Oliver’s 

residence large amounts of heroin and cocaine, as well as drug 

paraphernalia and marijuana. Oliver was arrested and charged with the 

above-mentioned offenses in a multiple-count Criminal Complaint, after 

which the matter proceeded to a jury trial. In March 2012, the jury found 

Oliver guilty on all counts. 

Prior to sentencing, the Commonwealth gave Notice of its intent to 

pursue a mandatory minimum sentence under two provisions of 18 Pa.C.S.A. 

§ 7508, which provide for enhanced mandatory minimum sentences where 

the offender possessed a certain amount of narcotics and had been 

convicted of a prior drug trafficking offense “at the time of sentencing.” See 

id. § 7508(a)(3)(ii), and (a)(7)(i); see also Commonwealth v. Vasquez, 

753 A.2d 807, 809 (Pa. 2000) (holding that that a conviction in a multiplecount complaint can be counted as a “prior” drug trafficking conviction 

triggering the enhancement provisions of 18 Pa.C.S.A. § 7508). 

On June 19, 2012, the trial court applied section 7508 to Oliver’s three 

PWID convictions (counting one of these PWID convictions as a prior drug 

trafficking conviction under Vasquez), and imposed an aggregate prison 

 
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sentence of 172 months to 348 months, plus thirteen years of probation.2

 

Oliver filed a post-sentence Motion for Reconsideration of Sentence, arguing 

that the trial court imposed an illegal sentence and inappropriately applied 

section 7508 to his convictions. The trial court denied Oliver’s Motion. 

Approximately four months later, in October 2012, Oliver filed a 

Petition under the Post Conviction Relief Act3

 seeking reinstatement of his 

direct appeal rights, nunc pro tunc. The trial court permitted Oliver to file an 

appeal nunc pro tunc, and appointed Attorney Lynott to represent Oliver. 

Attorney Lynott timely filed a Notice of Appeal. In response, the trial court 

 

2

 In his Anders Brief, Attorney Lynott explains Oliver’s sentence, and the 

sentencing court’s application of the mandatory minimum sentencing 

enhancement provisions of section 7508, as follows: 

[Oliver] was found guilty of [three separate counts of 

PWID, concerning his possession of] 4.8 grams of heroin, 13.4 

grams of [powder] cocaine[,] and 13.4 grams of crack cocaine. 

... [Under section 7508, a] conviction for a first offense of [PWID 

h]eroin[, where the amount of heroin possessed is over one 

gram but less than five grams,] carries a mandatory minimum 

sentence of two [] years and[,] for a second offense[,] three [] 

years. 18 Pa.C.S.A. [§] 7508(a)(7)(i). [Oliver] received a 

sentence of three [] to six [] years [in prison for his PWID 

(heroin) conviction]. For [PWID] cocaine, [where the amount of 

cocaine possessed is more than 10 grams but less than 100 

grams,] there is a mandatory sentence of three [] years for [a] 

first offense[,] and five [] years for [a] second offense[]. 18 

Pa.C.S.A. [§] 7508(a)(3)(ii). [Oliver] received a sentence of five 

[] to ten [] years [in prison] for each [of his two] count[s] of 

[PWID c]ocaine[.] 

Anders Brief at 7. 

3 See 42 Pa.C.S.A. §§ 9541-9546. 
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ordered Oliver to file a Pa.R.A.P. 1925(b) concise statement of errors 

complained of on appeal, and Oliver timely filed a Concise Statement. 

Subsequently, Attorney Lynott filed with this Court an Anders Brief 

and Petition to Withdraw as Oliver’s counsel, asserting that the claim that 

Oliver wished to raise on appeal was wholly frivolous and that there are no 

other meritorious issues to present on appeal. Oliver filed a pro se response 

(hereinafter “Response”) to Attorney Lynott’s Petition to Withdraw and 

Anders Brief.4

Before addressing Oliver’s issue on appeal, we must determine 

whether Attorney Lynott has complied with the dictates of Anders and its 

progeny in petitioning to withdraw from representation. Pursuant to 

Anders, when counsel believes that an appeal is frivolous and wishes to 

withdraw from representation, he must do the following: 

(1) petition the court for leave to withdraw stating that after 

making a conscientious examination of the record and 

interviewing the defendant, counsel has determined the appeal 

would be frivolous, (2) file a brief referring to any issues in the 

record of arguable merit, and (3) furnish a copy of the brief to 

defendant and advise him of his right to retain new counsel or to 

raise any additional points that he deems worthy of the court’s 

attention. The determination of whether the appeal is frivolous 

remains with the [appellate] court. 

Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012) 

(citations omitted). 

Additionally, the Pennsylvania Supreme Court has explained that a 

proper Anders brief must 

 

4

 Oliver did not retain alternate counsel for this appeal. 
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(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. Santiago, 978 A.2d 349, 361 (Pa. 2009). “Once 

counsel has satisfied the Anders requirements, it is then this Court’s duty to 

conduct its own review of the trial court’s proceedings and render an 

independent judgment as to whether the appeal is, in fact, wholly frivolous.” 

Commonwealth v. Edwards, 906 A.2d 1225, 1228 (Pa. Super. 2006) 

(citation and brackets omitted). 

Our review of Attorney Lynott’s Anders Brief and Petition to Withdraw 

reveals that he has substantially complied with the requirements of 

Anders/Santiago.

5 See Commonwealth v. O’Malley, 957 A.2d 1265, 

1267 (Pa. Super. 2008) (stating that substantial compliance with the 

requirements to withdraw as counsel will satisfy the Anders criteria). 

Additionally, Attorney Lynott has properly (1) provided Oliver with a copy of 

both the Anders Brief and Petition to Withdraw; and (2) appended to the 

Anders Brief a copy of the letter that he sent to Oliver advising him of his 

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

 

5 Attorney Lynott’s Petition to Withdraw (but not the Anders Brief) 

incorrectly states that counsel seeks to withdraw pursuant to 

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). 

This matter falls under Anders and its progeny, not Turner/Finley. 
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that he deems worthy of this Court’s attention. Accordingly, we next 

examine the record to make an independent determination of whether 

Oliver’s appeal is, in fact, wholly frivolous. 

 In the Anders Brief, Attorney Lynott explains that Oliver wishes to 

challenge the sentencing court’s application of the mandatory minimum 

sentencing enhancement provisions set forth in 18 Pa.C.S.A. 

§ 7508(a)(7)(i) and (a)(3)(ii), which allegedly resulted in an illegal sentence. 

See Anders Brief at 6. Attorney Lynott opines that Oliver’s sentence is not 

illegal, and the trial court properly applied section 7508 to Oliver’s 

convictions. See id. at 7-8. 

In Oliver’s pro se Response, he objects to Attorney Lynott’s filing an 

Anders Brief, and contends that the sentencing court imposed an illegal 

sentence by applying the enhancement provisions of section 7508(a)(3)(ii) 

and (a)(7)(i), in violation of the United States Supreme Court’s recent 

decision in Alleyne v. U.S., 133 S. Ct. 2151 (U.S. 2013) (holding that any 

“fact” that increases a mandatory minimum sentence must be treated as an 

element of the crime that must be submitted to a jury and found beyond a 

reasonable doubt).6

 Response, 4/29/14, at 7. We disagree. 

This Court has explained the holding in Alleyne as follows: 

According to the Alleyne Court, a fact that increases the 

sentencing floor is an element of the crime. Thus, it ruled that 

 

6 Although the sentencing court imposed Oliver’s sentence prior to the 

Alleyne decision, Alleyne applies retroactively. See Commonwealth v. 

Thompson, 2014 PA Super 106, at **31-33 (Pa. Super. 2014); 

Commonwealth v. Munday, 78 A.3d 661, 665-66 (Pa. Super. 2013). 
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facts that mandatorily increase the range of penalties for a 

defendant must be submitted to a fact-finder and proven beyond 

a reasonable doubt. The Alleyne decision, therefore, renders 

those Pennsylvania mandatory minimum sentencing statutes 

that do not pertain to prior convictions constitutionally 

infirm insofar as they permit a judge to automatically increase a 

defendant’s sentence based on a preponderance of the evidence 

standard. 

Commonwealth v. Watley, 81 A.3d 108, 117-18 (Pa. Super. 2013) (en 

banc) (emphasis added; footnotes omitted). 

In the instant case, the sentencing court applied the enhancement 

provisions of section 7508(a)(7)(i) and (a)(3)(ii) based upon Oliver’s “prior 

conviction” of a drug trafficking offense at the time of sentencing. 

Therefore, Oliver’s sentence is not illegal and does not run afoul of Alleyne. 

We conclude that Oliver’s issues lack merit, and our review discloses 

no non-frivolous issues that Oliver could present on appeal. Accordingly, we 

grant Attorney Lynott permission to withdraw under the precepts of Anders, 

and affirm the judgment of sentence. 

Petition to Withdraw as counsel granted; judgment of sentence 

affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/20/2014