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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : TOBY L. OLIVER, : :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 d rug paraphernalia and possession of a small amount of mariju ana. 1 Additionally, Oliver’s court -appointed counsel, Kurt T. Lynott, Esquire (“Attorney Lynott”) , has filed a Petition to Withdraw as counsel and an accom panying brief pursuant to Anders v. California , 386 U.S. 738, 744 (1967). We grant Attorney Lynott’s Petition to Withdra w, and affirm the judgment of sentence. In June 2011, a confidential police informant, coope rating with the Lackawanna County United Drug Task Force, conducted four controlled buys of marijuana from Oliver’s residence, located in Carbon dale, Pennsylvani a.

1 See 35 P.S. §§ 780-113(a)(30), (a)(16), (a)(32), (a)(31 ).J-S46035- 14

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The police subsequently secured a search warrant, and disc overed 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- co unt 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 i ts intent to pursue a mandatory minimum sentence under two provision s 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 ti me 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 co nviction in a multiplecount compl aint can be counted as a “prior” drug trafficking convicti on 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 prisonJ-S46035- 14

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sentence of 172 months to 348 months, plus thirteen year s of probation. 2 Oliver filed a post-sentence Motion for Reconsideration of Sentence, arguing that the trial court imposed an illegal sentence and in appropriately applied section 7508 to his convictions. The trial court denied Oliver’s Motion. Approximately four months later, in October 2012, Ol iver filed a Petition under the Post Conviction Relief Act 3 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 cour t

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 cocain e. ... [Under section 7508, a] conviction for a first offense of [PWID h]eroin[, where the amount of heroin possessed is over o ne gram but less than five grams,] carries a mandatory mini mum sentence of two [] years and[,] for a second offense[,] three [] years. 18 Pa.C.S.A. [§] 7508(a)(7)(i). [Oliver] re ceived a sentence of three [] to six [] years [in prison for his PWID (heroin) conviction]. For [PWID] cocaine, [where the a mount of cocaine possessed is more than 10 grams but less than 100 grams,] there is a mandatory sentence of three [] year s for [a] first offense[,] and five [] years for [a] second offense []. 18 Pa.C.S.A. [§] 7508(a)(3)(ii). [Oliver] received a se ntence of five [] to ten [] years [in prison] for each [of his two] cou nt[s] of [PWID c]ocaine[.] Anders Brief at 7.

3 See 42 Pa.C.S.A. §§ 9541-9546.J-S46035- 14

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ordered Oliver to file a Pa.R.A.P. 1925(b) concise stat ement of errors complained of on appeal, and Oliver timely filed a C oncise Statement. Subsequently, Attorney Lynott filed with this Court a n Anders Brief and Petition to Withdraw as Oliver’s counse l, asserting that the claim that Oliver wished to raise on appeal was wholly frivolou s 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 a nd Anders Brief. 4 Before addressing Oliver’s issue on appeal, we must dete rmine whether Attorney Lynott has complied with the dictate s of Anders and its progeny in petitioning to withdraw from representati on. Pursuant to Anders , when counsel believes that an appeal is frivolous and wishes to withdraw from representation, he must do the followin g: (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 an y issues in the record of arguable merit, and (3) furnish a copy of th e brief to defendant and advise him of his right to retain new counsel or to raise any additional points that he deem s 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 expl ained that a
proper Anders brief must

4 Oliver did not retain alternate counsel for this app eal.J-S46035- 14

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(1) provide a summary of the procedural history and f acts, with citations to the record; (2) refer to anything in the record that counsel believes arguably supports the appeal; (3) set fo rth counsel’s conclusion that the appeal is frivolous; and (4) state counsel’s reasons for concluding that the appeal is frivol ous. Counsel should articulate the relevant facts of record, co ntrolling case law, and/or statutes on point that have led to th e 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 a nd render an independent jud gment as to whether the appeal is, in fact, wholly f rivolous.” 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 requ irements of Anders / Santiago

. 5 See Commonwealth v. O’Malley , 957 A.2d 1265 , 1267 (Pa. Super. 2008) (stating that substantial compl iance with the requirements to withdraw as counsel will satisfy the Anders criteria). Additionally, Attorney Lynott has properly (1) provi ded Oliver with a copy of both the Anders Brief and Petition to Withdraw; and (2) appended t o the Anders Brief a copy of the letter that he sent to Oliver ad vising 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. Accord ingly, we next examine the record to make an independent determinat ion of whether Oliver’s appeal is, in fact, wholly frivolous. In the Anders Brief, Attorney Lynott explains that Oliver wishes t o challenge the sentencing court’s application of the manda tory minimum sentencing enhancement provisions set forth in 18 Pa.C.S. A. § 7508(a)(7)(i) and (a)(3)(ii), which allegedly resulte d 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 f iling an Anders Brief, and contends that the sentencing court imposed an illegal sentence by applying the enhancement provisions of sectio n 7508(a)(3)(ii) and (a)(7)(i), in violation of the United States Sup reme 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. Th is 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 pr ior 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).J-S46035- 14

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facts that mandatorily increase the range of penalties for a defendant must be submitted to a fact-finder and pro ven 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 automaticall y increase a defendant’s sentence based on a preponderance of the ev idence 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 “prio r conviction” of a drug trafficking offense at the time of sentencing. Therefore, Oliver’s sentence is not illegal and does no t run afoul of Alleyne

. We conclude that Oliver’s issues lack merit, and our revie w discloses no non-frivolous issues that Oliver could present on appe al. Accordingly, we grant Attorney Lynott permission to withdraw under t he precepts of Anders , and affirm the judgment of sentence. Petition to Withdraw as counsel granted; judgment of se ntence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 8/20/2014