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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                  v.                    :
                                        :
DAVID ALONSO CORADO,                    :         No. 1635 MDA 2015
                                        :
                       Appellant        :


        Appeal from the Judgment of Sentence September 21, 2015,
            in the Court of Common Pleas of Lancaster County
            Criminal Division at Nos. CP-36-CR-0002897-2012,
                         CP-36-CR-0002902-2012


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., AND STEVENS, P.J.E.*


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED APRIL 25, 2016

     David Alonso Corado appeals from the judgment of sentence of

September 21, 2015, following his guilty plea to drug and firearms charges.

Appointed counsel, Christopher P. Lyden, Esq., has filed a petition to

withdraw and accompanying Anders brief.1 After careful review, we grant

the withdrawal petition and affirm the judgment of sentence.

     On May 31, 2013, appellant entered a negotiated guilty plea to one

count each of possession with intent to deliver (“PWID”), delivery of a

controlled substance (heroin), possession of drug paraphernalia, criminal use




* Former Justice specially assigned to the Superior Court.
1
 See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).
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of a communication facility, and carrying a firearm without a license. The

trial court imposed the negotiated sentence of 5-10 years, which included a

5-year mandatory minimum sentence pursuant to 18 Pa.C.S.A. § 9712.1

(drug     offenses   committed    with   firearms).   Appellant   did   not   file

post-sentence motions or take a direct appeal; however, on April 9, 2014,

he filed a pro se motion for modification of sentence nunc pro tunc, which

was denied on April 14, 2014. Appellant filed a pro se notice of appeal on

April 30, 2014, followed by a pro se PCRA2 petition on May 30, 2014.

Counsel was appointed to represent appellant in the PCRA proceedings.

        On June 6, 2014, appellant withdrew his appeal. On June 18, 2015,

the Commonwealth filed a response to appellant’s PCRA petition, conceding

that his sentence was illegal.3    On July 17, 2015, the PCRA court granted

appellant’s petition and scheduled a resentencing hearing for September 21,

2015.      On that date, appellant was resentenced to an aggregate of

4-8 years’ incarceration followed by 2 years of probation. A timely notice of

appeal was filed on September 22, 2015. On September 23, 2015, appellant

was ordered to file a concise statement of errors complained of on appeal

within 21 days pursuant to Pa.R.A.P. 1925(b); appellant complied on


2
    Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
3
 In Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc),
appeal denied, 121 A.3d 496 (Pa. 2015), we found Section 9712.1
unconstitutional in light of Alleyne v. United States,     U.S.    , 133
S.Ct. 2151 (2013), which held that any fact that served to aggravate the
minimum sentence must be found by a jury beyond a reasonable doubt.


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September     29,   2015,   by   filing    a    statement   of   intent   to   file   an

Anders/McClendon brief in lieu of filing a statement in accordance with

Rule 1925(c)(4).     (Docket #43.)        The only potential issue identified for

appeal was whether the trial court imposed an illegal sentence. (Id.) On

November 3, 2015, the trial court filed a Rule 1925(a) opinion.                (Docket

#46.)

        Counsel having filed a petition to withdraw, we reiterate that “[w]hen

presented with an Anders brief, this court may not review the merits of the

underlying issues without first passing on the request to withdraw.”

Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa.Super. 2010), citing

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007)

(en banc) (citation omitted).

             In order for counsel to withdraw from an appeal
             pursuant to Anders, certain requirements must be
             met, and 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



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                  statutes on point that have led to the
                  conclusion that the appeal is frivolous.

Daniels, 999 A.2d at 593, quoting Commonwealth v. Santiago, 978 A.2d

349, 361 (Pa. 2009).

     Upon review, we find that Attorney Lyden has complied with all of the

above requirements.4 In addition, Attorney Lyden served appellant a copy

of the Anders brief, and advised him of his right to proceed pro se or hire a

private attorney to raise any additional points he deemed worthy of this

court’s review.    Appellant has not responded to counsel’s petition to

withdraw. As we find the requirements of Anders and Santiago are met,

we will proceed to the issues on appeal.

     First, we observe that appellant entered a negotiated guilty plea.

When he entered the plea, he agreed to waive all non-jurisdictional defects

and defenses.

           “A plea of guilty constitutes a waiver of all
           nonjurisdictional defects and defenses.    When a
           defendant pleads guilty, he waives the right to
           challenge anything but the legality of his sentence
           and the validity of his plea.” Commonwealth v.
           Montgomery, 485 Pa. 110, 401 A.2d 318, 319
           (1979)     (internal   citations   omitted);    see

4
   Initially, Attorney Lyden failed to comply with Anders/Santiago. He failed
to file a petition to withdraw or a letter to appellant with instructions
pursuant to Anders.         On February 5, 2016, this court ordered that
Attorney Lyden’s brief be stricken and that on or before March 11, 2016, he
file an advocate’s brief on behalf of appellant or a petition to withdraw and
brief following the dictates of Anders, McClendon, and Santiago.
Attorney Lyden complied on February 11, 2016, filing a petition to withdraw,
including the letter to appellant setting forth his rights under Anders, and a
proper Anders brief.


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             Commonwealth v. Irby, 445 Pa. 248, 284 A.2d
             738, 739 (1971) (“[I]t is settled law that all
             procedural and non-jurisdictional defects and
             defenses not previously raised were waived when he
             pleaded to the indictment.”).

Commonwealth v. Jones, 929 A.2d 205, 212 (Pa. 2007).                    Furthermore,

appellant may not challenge the discretionary aspects of the sentence,

where the terms of the sentence were made part of the negotiated plea.

Commonwealth v. Baney, 860 A.2d 127, 131 (Pa.Super. 2004), appeal

denied, 877 A.2d 459 (Pa. 2005).

      Here, appellant negotiated a sentence of 5 to 10 years, which was

reduced to 4 to 8 years following Alleyne. Appellant’s sentence was within

the guidelines and was not illegal.

      Attorney Lyden states that appellant’s guilty plea colloquy was

deficient in several respects, e.g., the trial court did not determine that

appellant understood he had the right to a jury trial and that he was

presumed innocent until proven guilty.         (Anders brief at 10.)            However,

appellant did not object to these alleged defects during the plea proceedings,

nor did he file post-sentence motions. (Id.) Therefore, any argument that

the plea colloquy was defective and appellant’s plea was invalid would have

to   be   raised   on   collateral   review   in   the   context   of   trial    counsel

ineffectiveness.   See Commonwealth v. D’Collanfield, 805 A.2d 1244,

1246 (Pa.Super. 2002) (appellant’s argument that there was an insufficient

factual basis for the plea was not properly preserved for appeal because trial



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counsel failed to preserve the issue by objecting at the sentencing colloquy

or otherwise raising the issue at the sentencing hearing or through a

post-sentence motion), citing Pa.R.Crim.P. 720(B), and Commonwealth v.

Archer, 722 A.2d 203, 209 (Pa.Super. 1998) (issues not preserved on

appeal are waived); Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002)

(defendants should wait until the collateral review phase to raise claims of

ineffective assistance of counsel); Commonwealth v. Holmes, 79 A.3d 562

(Pa.   2013)   (reaffirming   Grant    and     holding   that,   absent      specific

circumstances not applicable here, claims of ineffective assistance of counsel

are to be deferred to PCRA review).

       For the reasons discussed above, we determine that appellant’s issues

on appeal are wholly frivolous and without merit.        Furthermore, after our

own independent review of the record, we are unable to discern any

additional   issues   of   arguable   merit.      Therefore,     we   will     grant

Attorney Lyden’s petition to withdraw and affirm the judgment of sentence.

       Petition to withdraw granted. Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/25/2016




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