Com. v. Montgomery, K.
CourtSuperior Court of Pennsylvania
Date FiledOctober 26, 2026
Docket832 WDA 2025
JudgePanella
StatusUnpublished
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Full Opinion
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KAIWAN LA MONTGOMERY JR. :
:
Appellant : No. 832 WDA 2025
Appeal from the Judgment of Sentence Entered June 18, 2025
In the Court of Common Pleas of Fayette County Criminal Division at
No(s): CP-26-CR-0001226-2024
BEFORE: PANELLA, P.J.E., KING, J., and LANE, J.
MEMORANDUM BY PANELLA, P.J.E.: FILED: October 26, 2026
Kaiwan La Montgomery Jr. appeals from the judgment of sentence, an
aggregate term of fifteen to thirty years’ incarceration, entered in the Court
of Common Pleas of Fayette County after he pled guilty to various offenses.
Additionally, appellate counsel seeks to withdraw from representation
pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After careful review,
we vacate Montgomery’s judgment of sentence and deny counsel’s petition to
withdraw.
On June 4, 2025, Montgomery entered a general guilty plea to the
charges of attempted homicide, aggravated assault, persons not to possess
firearms, simple assault, recklessly endangering another person, driving
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without a license, and careless driving.1 Prior to entering his plea, Montgomery
completed a written plea colloquy with the assistance of Travis Rhodes, Esq.
(“plea counsel”) of the Fayette County Public Defender’s Office, and the court
conducted an oral plea colloquy on the record during which Montgomery
admitted to the following:
[O]n or about May 22, 2024, [Montgomery] intentionally,
knowingly, recklessly, or negligently attempted to cause the death
of another human being by shooting Ian Murphy with a firearm
and striking him twice[. Montgomery was] in possession of that
firearm and [was] not permitted to be in possession of a firearm
due to a prior felony conviction[.]
N.T. Plea Hearing, 6/4/25, at 8 (unpaginated). Upon determining that
Montgomery’s plea was knowing, intelligent, and voluntary, the court
accepted his plea and deferred sentencing to a later date. See id. at 9
(unpaginated).
On June 11, 2025, the court held Montgomery’s sentencing proceedings,
the entirety of which consisted of the following:
[Prosecutor]: Your Honor, ... the defendant previously
entered a general plea to charges including attempted homicide.
He is present in the courtroom with his attorney, Travis Rhodes,
from the Public Defender’s Office. This is the time and place for
sentencing.
The Court: Mr. Rhodes—
[Montgomery]: Excuse me, Your Honor.
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1 18 Pa.C.S.A. §§ 901(a), 2702(a)(1), 6105(a)(1), 2701(a)(1), 2705, 75
Pa.C.S.A. §§ 1501(a) and 3714(a), respectively.
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The Court: Yes?
[Montgomery]: I’m here to fire my attorney for ineffective
counsel.
The Court: We’re here for sentencing.
[Montgomery]: Yeah. But I’m not taking that.
The Court: You already plead guilty.
[Montgomery]: I’m not taking that, Your Honor.
The Court: Okay, so—
[Montgomery]: Ineffective—
The Court: You can make a motion after we’re done but you
entered a plea of guilty, we told you we were sentencing you
today. So, the guidelines are, offense gravity score is twenty-six,
prior record score is a four, standard range 132 to the statutory
limit so you can make any motions you want when this is over but
you entered a guilty plea, a general plea, so we’re going to impose
a sentence.
[Montgomery]: He didn’t ... look through my case thoroughly
enough to accept this.
The Court: That’s going to be afterwards. We already took
the plea[,] and we made a determination that you entered a
knowing and voluntary waiver of your right to go to trial.
Remember when I asked you those questions?
[Montgomery]: Yes, sir.
The Court: You said you wanted to enter a general plea. So
anything else you want to say before we impose sentence, then
you can file any motions you want afterwards. Post sentence,
PCRA, fire your attorney, all that stuff.
[Montgomery]: I’m not ready to take this plea right today
though.
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The Court: You already took the plea. ... You asked me to
come back in person so we could do the sentence—
[Montgomery]: He didn’t—
The Court: And I said okay.
[Montgomery]: —get a chance to tell you I need new counseling
for my case. I’m not ready to take this plea, Your Honor.
The Court: As I said. We already entered a plea, we made
a determination that you made a knowing, intelligent and a
voluntary waiver of your right to go to trial. I remember telling
you, we got a jury picked, you can go to trial if you want.
[Montgomery]: Can I go to trial then? I would like to go to trial.
The Court: So, as we indicated, we will review the
guidelines. We have a 132 to statutory limit and we are going to
impose a sentence in the middle of the standard range of not less
than fifteen years nor more than thirty years. This is Count 1.
Credit for time served from [May 30, 2024] to the present date,
standard fines, costs, fees. All other counts, no further penalty.
You are to be transported to SCI Greene for compliance with this
sentence. You could file any motions you wish to. You have ten
days to file any post-sentence motions, thirty days to file any
appeal to the Superior Court and then we’ll entertain those
motions to withdraw a plea, fire your attorney, and all that stuff.
[Montgomery]: So I got—
The Court: For now, we’re doing the sentence. Defendant
will stand committed. He’s good to go.
N.T. Sentencing Hearing, 6/11/25, at 1-3 (unpaginated; unnecessary
capitalization omitted). The court subsequently entered a sentencing order
imposing a term of fifteen to thirty years’ incarceration on the count of
attempted homicide and no further penalty on the remaining charges. On June
16, 2025, Montgomery pro se filed a “Motion to Withdraw Plea on Said
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Grounds” in which he generally disputed the trial court’s denial of his oral
motion to withdraw his guilty plea, based upon counsel’s alleged ineffective
assistance, at his sentencing hearing.2
On June 18, 2025, without holding an additional hearing and outside of
Montgomery’s presence, the trial court entered an amended sentencing order,
which included the following handwritten language under the section titled
“Remarks/Comments/Additional Conditions”:
[T]he defendant shall serve the mandatory state reentry
supervision of twelve months as outlined in [204 Pa. Code §
303.12(f)(2)] in regards to aggregate minimum sentences of four
(4) years or more[.] [A]ll original provisions remain in full effect.
Amended Sentencing Order, 6/18/25 (unnecessary capitalization omitted).
Montgomery timely filed a pro se notice of appeal.3 On July 2, 2025, the court
entered an order directing Montgomery to file a concise statement of errors
complained of on appeal, pursuant to Pa.R.A.P. 1925(b), by July 23, 2025. On
July 28, 2025, the trial court filed a statement in lieu of filing an opinion
____________________________________________
2 Based on our review of the certified record, it does not appear that the court
entered an order ruling on Montgomery’s post-sentence motion to withdraw
his guilty plea.
3 Because “a defendant has no right to hybrid representation, this Court will
not accept pro se motions while that defendant is represented by counsel.
However, this Court is required to docket a pro se notice of appeal even when
the defendant is represented by counsel[,] as a notice of appeal protects a
constitutional right and is distinguishable from other filings that require
counsel to provide legal knowledge and strategy in creating a motion, petition,
or brief.” Commonwealth v. Moore, 307 A.3d 95, 99 (Pa. Super. 2023)
(citations, internal quotation marks, and brackets omitted).
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pursuant to Pa.R.A.P. 1925(a) in which it determined that Montgomery had
waived all appellate issues by failing to timely file a 1925(b) statement. On
August 1, 2025, plea counsel filed a “Motion for Grazier[4] Hearing,” and
Montgomery filed a pro se 1925(b) statement. On August 12, 2025, the court
entered an order permitting plea counsel to withdraw and appointing current
counsel, Brent E. Peck, Esq., to represent Montgomery on direct appeal.
Prior to reviewing the merits of Montgomery’s appeal, we must first
determine whether counsel has complied with the requirements set forth in
Anders and its progeny.
To withdraw from representation pursuant to Anders, counsel
must:
1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel
has determined that the appeal would be frivolous; 2)
furnish a copy of the Anders brief to the appellant; and 3)
advise the appellant that he or she has the right to retain
private counsel or raise additional arguments that the
appellant deems worthy of the court’s attention.
With respect to the third requirement of Anders, that counsel
inform the appellant of his or her rights in light of counsel’s
withdrawal, this Court has held that counsel must attach to their
petition to withdraw a copy of the letter sent to their client
advising him or her of their rights.
Further, an Anders brief must comply with the following
requirements:
(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;
____________________________________________
4 See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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(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.
If counsel’s petition and brief satisfy Anders, we will then
undertake our own review of the appeal to determine if it is wholly
frivolous.
Commonwealth v. Steager, 357 A.3d 137, 142-43 (Pa. Super. 2026)
(brackets and citation omitted). “This includes an independent review of the
record to discern if there are any additional, non-frivolous issues overlooked
by counsel.” Commonwealth v. Thompson, 333 A.3d 461, 466 (Pa. Super.
2025) (internal quotation marks and citations omitted).
In his petition to withdraw, counsel indicates that he reviewed the entire
record and determined that there are no non-frivolous grounds for an appeal.
Counsel furnished Montgomery with a copy of his Anders brief and advised
Montgomery of his right to retain new counsel or proceed pro se and to raise
any additional arguments he deems worthy of this Court’s attention.
Furthermore, counsel’s Anders brief contains an adequate factual and
procedural summary of the case and discusses the applicable law on which he
bases his conclusion that there are no non-frivolous issues to be raised on
Montgomery’s behalf. Thus, counsel has substantially complied with the
technical and substantive requirements set forth in Anders and its progeny.
Accordingly, we proceed to conduct an independent review to determine
whether the appeal is wholly frivolous.
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In his Anders brief, counsel identifies potential issues concerning the
validity of Montgomery’s guilty plea5 and his purported attempts to withdraw
his plea based upon the claims of error Montgomery raised in his pro se
1925(b) statement. See Anders Brief, at 6 (unpaginated).6
____________________________________________
5 To the extent counsel’s Anders brief purports to raise a claim of plea
counsel’s ineffectiveness, see Anders Brief, at 6 (unpaginated), the issue is
premature and must await collateral review. See Commonwealth v. Crosby,
844 A.2d 1271, 1271-72 (Pa. Super. 2004).
6 We note our disagreement with both the trial court’s and counsel’s conclusion
that Montgomery waived all potential appellate issues by failing to file a timely
1925(b) statement. See Statement in Lieu of Opinion, 7/28/25; Anders Brief,
at 7 (unpaginated). “Ordinarily, the failure to file a 1925(b) statement would
constitute waiver of all issues and per se ineffectiveness.” Commonwealth
v. Stroud, 298 A.3d 1152, 1156 (Pa. Super. 2023) (quotation marks,
unnecessary capitalization, and citation omitted). Upon learning of counsel’s
failure to file a concise statement on Montgomery’s behalf, the trial court
should have issued a 1925(a) opinion that “not[ed] the ineffectiveness of
counsel, permit[ted] counsel to file a statement nunc pro tunc[,] and
address[ed] the issues in a subsequent Rule 1925(a) opinion.” Id. at 1157
(citation omitted). The trial court was also permitted to “appoint new counsel
if original counsel fail[ed] to comply with the order[.]” Id. (citation omitted).
However, the court failed to take these steps, and, instead, filed its Rule
1925(a) statement finding all issues waived, after which Montgomery filed the
untimely pro se 1925(b) statement. We acknowledge that, in addition to being
untimely, Montgomery’s pro se concise statement was a legal nullity, as it was
filed when he was still represented by plea counsel. See Commonwealth v.
Bradley, 326 A.3d 982, 985 (Pa. Super. 2024) (“As our courts do not permit
hybrid representation, pro se filings submitted by counseled defendants are
generally treated as legal nullities.”) (internal quotation marks and citation
omitted). Nevertheless, we decline to find waiver of all potential appellate
issues based on plea counsel’s failure to comply with the court’s order and
Montgomery’s untimely filing of a pro se 1925(b) statement because this case
involves an application to withdraw as counsel, which requires this Court to
conduct an independent review of the complete record to determine whether
there are any nonfrivolous issues. See Thompson, 333 A.3d at 466.
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“Generally, a plea of guilty amounts to a waiver of all defects and
defenses except those concerning the jurisdiction of the court, the legality of
the sentence, and the validity of the guilty plea.” Commonwealth v.
Alameda, 339 A.3d 504, 511 (Pa. Super. 2025) (citation omitted).
The law governing pre-sentence plea withdrawals is well-settled.
Rule 591 permits withdrawal of a plea as follows: “At any time
before the imposition of sentence, the court may, in its discretion,
permit, upon motion of the defendant, ... the withdrawal of a plea
of guilty ... and the substitution of a plea of not guilty.”
Pa.R.Crim.P. 591(A). Thus, the standard for pre-sentence plea
withdrawal is a very liberal one, governed by the following
considerations:
(1) there is no absolute right to withdraw a guilty plea; (2)
trial courts have discretion in determining whether a
withdrawal request will be granted; (3) such discretion is to
be administered liberally in favor of the accused; and (4)
any demonstration by a defendant of a fair-and-just reason
will suffice to support a grant, unless withdrawal would work
substantial prejudice to the Commonwealth.
The trial courts in exercising their discretion must recognize that
before judgment, the courts should show solicitude for a
defendant who wishes to undo a waiver of all constitutional rights
that surround the right to trial—perhaps the most devastating
waiver possible under our constitution. We will not reverse a trial
court’s decision absent abuse of discretion.
Commonwealth v. McLendon, 293 A.3d 658, 663-64 (Pa. Super. 2023)
brackets, footnote, case citations, and quotation marks omitted). When
determining whether to permit a defendant to withdraw his guilty plea prior
to the imposition of his sentence, “the proper inquiry ... is whether the accused
has made some colorable demonstration, under the circumstances, such that
permitting withdrawal of the plea would promote fairness and justice.”
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Commonwealth v. Norton, 201 A.3d 112, 120-21 (Pa. 2019) (citation
omitted).
Furthermore:
To withdraw a plea after sentencing, a defendant must make a
showing of prejudice amounting to “manifest injustice.” A plea
rises to the level of manifest injustice when it was entered into
involuntarily, unknowingly, or unintelligently. A defendant’s
disappointment in the sentence imposed does not constitute
“manifest injustice.”
To ensure a voluntary, knowing, and intelligent plea, trial courts
are required to ask the following questions in the guilty plea
colloquy:
1) Does the defendant understand the nature of the charges
to which he or she is pleading guilty or nolo contendere?
2) Is there a factual basis for the plea?
3) Does the defendant understand that he or she has the
right to a trial by jury?
4) Does the defendant understand that he or she is
presumed innocent until found guilty?
5) Is the defendant aware of the permissible ranges of
sentences and/or fines for the offenses charged?
6) Is the defendant aware that the judge is not bound by
the terms of any plea agreement tendered unless the judge
accepts such agreement?
[Pa.R.Crim.P. 590, Comment.] The guilty plea colloquy must
affirmatively demonstrate that the defendant understood what the
plea connoted and its consequences. Once a defendant has
entered a plea of guilty, it is presumed that he was aware of what
he was doing, and the burden of proving involuntariness is upon
him. In determining whether a guilty plea was entered knowingly
and voluntarily, a court is free to consider the totality of the
circumstances surrounding the plea. Furthermore, nothing in the
rule precludes the supplementation of the oral colloquy by a
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written colloquy that is read, completed, and signed by the
defendant and made a part of the plea proceedings.
Commonwealth v. Felix, 303 A.3d 816, 820 (Pa. Super. 2023) (citations
omitted).
The totality of the circumstances surrounding the entry of Montgomery’s
guilty plea supports the court’s determination that it was valid, as it was
knowingly, intelligently, and voluntarily tendered. During his oral plea colloquy
and in his written colloquy, Montgomery indicated that he understood the
English language, was entering the plea under his own free will, and was not
under the influence of any intoxicants. See N.T. Plea Hearing, 6/4/25, at 6,
7-8, 9 (unpaginated); Guilty Plea Petition, 6/4/25, at ¶¶ 3, 7, 5. Montgomery
further indicated that he understood the nature of the crimes to which he was
pleading guilty and admitted to the underlying factual basis for the charges.
See N.T. Plea Hearing, 6/4/25, at 8 (unpaginated); Guilty Plea Petition,
6/4/25, at ¶¶ 12, 13. Furthermore, Montgomery indicated that he understood
the permissible range of sentences and acknowledged that the court retained
the discretion to fashion a sentence within that range. See N.T. Plea Hearing,
6/4/25, at 8 (unpaginated); Guilty Plea Petition, 6/4/25, at ¶ 14. Montgomery
confirmed that he understood the rights he would forgo in entering his guilty
plea, including the right to a jury trial and the presumption of innocence. See
N.T. Plea Hearing, 6/4/25, at 6-7 (unpaginated); Guilty Plea Petition, 6/4/25,
at ¶¶ 10, 11. Montgomery further confirmed that his plea was not a product
of force or threat and that he was not promised anything in exchange for
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tendering it. See N.T. Plea Hearing, 6/4/25, at 7-8 (unpaginated); Guilty Plea
Petition, 6/4/25, at ¶ 7. Finally, Montgomery confirmed that he had an
adequate opportunity to discuss his plea with plea counsel and that he was
satisfied with the services rendered by plea counsel. See N.T. Plea Hearing,
6/4/25, at 9 (unpaginated).
Thus, any challenge to the validity of Montgomery’s plea would fail, as
“[a] person who elects to plead guilty is bound by the statements he makes
in open court while under oath and he may not later assert grounds for
withdrawing the plea which contradict the statements he made at his
colloquy.” Alameda, 339 A.3d at 510 (citation omitted). Accordingly, we
conclude that the trial court did not abuse its discretion in declining to permit
Montgomery to withdraw his plea at the time of sentencing based on the
alleged ineffective assistance of counsel and agree with counsel’s conclusion
that any challenge to the validity of Montgomery’s plea is frivolous.
Nevertheless, following our review of the certified record, we disagree
with counsel’s conclusion that Montgomery’s appeal is wholly frivolous, where
both the original and amended sentences imposed by the court were illegal
and must be vacated. In Commonwealth v. Mumford, 353 A.3d 247 (Pa.
Super. 2026), a panel of this Court recently considered the sentencing
provisions implicated in the case sub judice:
Pennsylvania law sets forth a requirement for mandatory
imposition of reentry supervision in Section 6137.2, which “applies
to persons committed to the department with an aggregate
minimum sentence of total confinement under 42 Pa.C.S.A. §
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9756(b) (relating to sentence of total confinement) of 4 years or
more.” 61 Pa.C.S.A. § 6137.2(a). The statute mandates that “any
person under subsection (a) shall be sentenced to a period of
reentry supervision of 12 months consecutive to and in addition
to any other lawful sentence issued by the court.” 61 Pa.C.S.A. §
6137.2(b).
This Court considered the implications of Section 6137.2 in
Commonwealth v. Santiago, 768 MDA 2023, 2024 WL 1462304
(Pa. Super. filed Apr. 4, 2024) (unpublished memorandum).[7]
There, the trial court sentenced the appellant to an aggregate
term of 7½ to 15 years of incarceration. Id. at *7. This Court
concluded that the “appellant was subjected to the mandatory
reentry supervision requirements of 61 Pa.C.S.A. § 6137.2” and
the trial court’s original sentence, which omitted the requirement
for reentry supervision, was an illegal sentence. Id. Accordingly,
this Court concluded that the trial court possessed the authority
to mold a new, statutorily correct sentence. Id. Nevertheless, this
Court held that the trial court’s amended sentence was also an
illegal sentence, where there was no indication that the trial court
held a resentencing hearing or that [the] appellant was otherwise
present in court when the amended sentence was imposed. Id.
[We] considered a similar issue in Commonwealth v. Norris,
1439 WDA 2022, 2023 WL 6458962 (Pa. Super. filed Oct. 4, 2023)
(unpublished memorandum), when we considered sua sponte
whether the “trial court entered an illegal sentence when it
amended the appellant’s sentence outside his presence.” Id. at
*6. This Court explained that because the trial court imposed an
aggregate sentence of more than four years, Section 6137.2
required that the court impose a term of one year of reentry
supervision. See id. at *7. Although the trial court issued an
amended sentence adding the term of reentry supervision,
there [was] no indication on the trial court docket that the
trial court held a resentencing hearing or that the appellant
was present in court when the amended sentence was
imposed. See Pa.R.Crim.P. 602 (“The defendant shall be
present at every stage of the trial including the impaneling
of the jury and the return of the verdict, and at the
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7 We may rely upon the non-precedential memorandum decisions of this Court
filed after May 1, 2019 for their persuasive value. See Pa.R.A.P. 126(b).
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imposition of sentence.”). As such, the trial court entered
an illegal sentence.
Id. Therefore, this Court vacated the amended sentence and
remanded for resentencing.
Mumford, 353 A.3d 247 at 261-62 (brackets, footnote, and unnecessary
capitalization omitted; some citation formatting altered). Thus, the panel
determined that Mumford’s aggregate sentence of 7½ to 15 years’
incarceration implicated the mandatory reentry supervision requirements set
forth in section 6137.2 and that Mumford’s original sentence, which did not
include a term of reentry supervision, was illegal. See id. at 262. Although
Mumford’s amended sentence included the mandatory term of reentry
supervision, the panel further concluded that “the trial court entered an illegal
sentence by amending [Mumford’s] sentence outside of his presence” where
there was “no indication that the trial court conducted a resentencing hearing
or that [Mumford] was present when the amended sentence was imposed[.]”
Id.
The case sub judice presents identical circumstances to those in
Mumford. Here, the court sentenced Montgomery to an aggregate term of
fifteen to thirty years’ incarceration, thereby implicating section 6137.2’s
mandatory reentry supervision requirements. However, the trial court’s initial
sentence did not provide for a term of reentry supervision, see Sentencing
Order, 6/11/25, and was therefore illegal. See Mumford, 353 A.3d at 262.
Although the trial court subsequently entered an amended sentencing order
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to provide for the mandatory term of reentry supervision, see Amended
Sentencing Order, 6/18/25, the certified record is devoid of any indication that
the court held a resentencing hearing or that Montgomery was present when
his amended sentence was imposed. Accordingly, the court’s amended
sentence is likewise illegal. See Mumford, 353 A.3d at 262.
Based on the foregoing, we are constrained to vacate both
Montgomery’s June 11, 2025 judgment of sentence and his June 18, 2025
amended judgment of sentence as legal nullities, remand for resentencing,
and deny counsel’s petition to withdraw. Unless granted permission to
withdraw by the trial court, counsel shall remain counsel of record through the
completion of Montgomery’s direct appeal process following resentencing. This
memorandum is entered without prejudice to current counsel’s right to
request the trial court’s permission to withdraw and request substitute
counsel.
Judgment of sentence vacated. Petition to withdraw denied. Case
remanded for resentencing consistent with this decision. Jurisdiction
relinquished.
DATE: 10/26/2026
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