Full Opinion

J-S19015-26 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ANDREW JAMES GILBERT : : Appellant : No. 884 WDA 2025 Appeal from the Judgment of Sentence Entered June 17, 2025 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0001340-2021 BEFORE: SULLIVAN, J., NEUMAN, J., and STEVENS, P.J.E.* MEMORANDUM BY SULLIVAN, J.: FILED: October 20, 2026 Andrew James Gilbert (“Gilbert”) appeals from the judgment of sentence following his open guilty plea to, inter alia, possession of a controlled substance with intent to deliver (“PWID”).1 Additionally, Gilbert’s counsel (“Counsel”) has filed a petition to withdraw and an accompanying brief pursuant to Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Because Gilbert’s appellate issues are frivolous and our independent review discloses no non- frivolous appellate issues, we grant Counsel’s petition to withdraw and affirm. We glean the relevant factual and procedural history from the trial court’s opinion as follows. In April 2020, Murrysville police found Gilbert ____________________________________________ * Former Justice specially assigned to the Superior Court. 1 See 35 P.S. § 780-113(a)(30). J-S19015-26 unconscious and slumped over his steering wheel at the Murrysville Sheetz. After obtaining a search warrant, police found in Gilbert’s vehicle narcotics, including 1,000 or more grams of methamphetamine, as well as marijuana and multiple Xanax pills; drug paraphernalia, including packaging material, needles, and baggies; and more than $4,000 in cash. A toxicology report confirmed the presence of amphetamine and methamphetamine in Gilbert’s blood samples collected at Forbes Regional Hospital. See Trial Court Opinion, 9/3/25, at 1-2. In May 2021, the Commonwealth filed a Criminal Information in this case, charging Gilbert with the aforementioned PWID and the following offenses: dealing in the proceeds of illegal activity, driving under the influence of alcohol or controlled substance (“DUI”), possession of drug paraphernalia, possession or distribution of a small amount of marijuana, and three counts of possession of a controlled substance.2 Gilbert later entered an open guilty plea in January 2025 to PWID and DUI;3 the trial court deferred sentencing for the preparation of a presentence investigation report. In June 2025, the court sentenced Gilbert to, inter alia, a standard-range sentence of five to ten ____________________________________________ 2 18 Pa.C.S.A. § 5111; 75 Pa.C.S.A. § 3802(d)(1); 35 P.S. § 780-113(a)(32); 35 P.S. § 780-113(a)(31); 35 P.S. § 780-113(a)(16). 3 As part of Gilbert’s plea, the Commonwealth nolle prosed the remaining charges. See N.T., 1/30/25, at 2. -2- J-S19015-26 years of imprisonment for PWID. Gilbert timely appealed. See id. Both Gilbert and the trial court complied with Pa.R.A.P. 1925.4 As noted above, Counsel has filed an application to withdraw along with an Anders brief. When presented with an Anders brief, this Court may not review the merits of the underlying issues without first passing on the request to withdraw. See Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super. 2010). Pursuant to Anders, when counsel believes an appeal is frivolous and wishes to withdraw from representation, he or she must do the following: (1) petition the court for leave to withdraw stating that after making a conscientious examination of the record, counsel has determined the appeal would be frivolous; (2) file a brief referring to any issues that might arguably support the appeal, but which does not resemble a no-merit letter; and (3) furnish a copy of the brief to the defendant and advise him of his right to retain new counsel, proceed pro se, or raise any additional points he deems worthy of this Court’s attention. Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006) (internal citation omitted). In Santiago, our Supreme Court addressed the ____________________________________________ 4 While the trial court ordered Gilbert to file a Rule 1925(b) statement of errors complained of on appeal, no such statement appears in the certified record. However, the court’s Rule 1925(a) opinion addresses the issues raised in Gilbert’s concise statement, and no party involved asserts Gilbert waived his appellate issues for failure to file a Rule 1925(b) statement. Therefore, this omission in the record does not impede our review. We remind Counsel that Pa.R.A.P. 2111(d) requires appellants to append to their brief a copy of their Rule 1925(b) statement. Additionally, the ultimate responsibility for a complete record rests with the party raising an issue that requires appellate court access to record materials. See Note to Pa.R.A.P. 1921. -3- J-S19015-26 second requirement of Anders, i.e., the contents of an Anders brief, and required that the brief: (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. Santiago, 978 A.2d at 361. Once counsel has satisfied these technical 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. See Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en banc). Here, Counsel has filed a petition to withdraw stating that after an extensive review of the record and applicable law, he has concluded that this appeal is wholly frivolous. See Petition to Withdraw, 1/22/26, at ¶ 7. Counsel has also filed a brief, provided it to Gilbert, and has advised Gilbert of his right to proceed in this appeal with private counsel or pro se, and to present to this Court any other information or documentation relevant to his appeal. See id. (attached letter from Counsel to Gilbert). Counsel’s Anders brief includes a summary of the factual procedural history of the appeal and explains his reasons for concluding that the appeal is wholly frivolous. See Anders Brief -4- J-S19015-26 at 8-14. Thus, we conclude that Counsel has complied with the technical requirements of Anders and Santiago, and we will proceed with an independent review of whether this appeal is frivolous. Counsel identifies the following issues for our review: 1. WHETHER THE COURT ERRED BY FAILING TO CONSIDER [GILBERT’S] REFORMED CHARACTER[ AND] HIS REHABILITATIVE NEEDS WHEN FASHIONING THE SENTENCE? 2. WAS [GILBERT] DENIED TO [SIC] EFFECTIVE ASSISTANCE OF COUNSEL BY HIS PRIOR COUNSEL? Anders Brief at 7. In his first intended issue, Gilbert raises a challenge to the discretionary aspects of his sentence. Before this Court may review the issue on the merits, we must first determine whether Gilbert has properly invoked this Court’s jurisdiction over this issue. This Court has explained the relevant law as follows: [A]n appellant challenging the sentencing court’s discretion must invoke this Court’s jurisdiction by (1) filing a timely notice of appeal; (2) properly preserving the issue at sentencing or in a motion to reconsider and modify the sentence; (3) complying with Pa.R.A.P. 2119(f), which requires a separate section of the brief setting forth “a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence[;]” and (4) presenting a substantial question that the sentence appealed from is not appropriate under the Sentencing Code. Commonwealth v. Padilla-Vargas, 204 A.3d 971, 975 (Pa. Super. 2019) (citation omitted; brackets in original); see also 42 Pa.C.S.A. § 9781(b). As stated above, Gilbert’s appeal is timely. In an Anders context, this Court has not required a separate Rule 2119(f) statement. See -5- J-S19015-26 Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa. Super. 2015). As such we look to whether Gilbert has preserved his issue. We note that at the sentencing hearing, Gilbert made no objection following imposition of the sentence. See N.T., 7/10/25, at 27-32. Additionally, Gilbert filed no post- sentence motion in which he raised a claim with respect to the discretionary aspects of his sentence. As such, Gilbert failed to preserve his challenge to the discretionary aspects of his sentence. See Padilla-Vargas, 204 A.3d at 975.5 Accordingly, this issue is wholly frivolous.6 Counsel next identifies a claim of ineffectiveness against “former counsel” who represented Gilbert. But “because this case is on direct appeal, . . . a claim of ineffective assistance of counsel must be raised in a timely filed PCRA petition.” See Layton, 2026 WL 2150809 at *3 n.3.7 Accordingly, this ____________________________________________ 5 See also Trial Court Opinion, 9/2/25, at 3-4 (concluding Gilbert failed to preserve this issue for failure to object at sentencing or file a post-sentence motion). 6 We recognize the failure to file a post-sentence motion, thereby foreclosing in its entirety a direct appeal, presents a viable claim for ineffectiveness against Gilbert’s attorney. See, e.g., Commonwealth v. Layton, Nos. 2293 EDA 2025, 2294 EDA 2025, 2026 WL 2150809 (Pa. Super. July 27, 2026) (unpublished memorandum at *3 n.3); see also Pa.R.A.P. 126(b). However, as discussed below, this claim must be deferred to collateral review. See Layton, 2026 WL 2150809 at *3 n.3. 7 There are two limited exceptions to the general rule that ineffectiveness claims are to be deferred to collateral review: (1) the trial court considers the claim and concludes it is both meritorious and apparent from the record and so immediate consideration and relief is warranted; or (2) there is good cause shown for the review and the appellant waives his right to PCRA review. See (Footnote Continued Next Page) -6- J-S19015-26 issue is not reviewable at this stage in the litigation, and the challenge, for purposes of direct appeal, is wholly frivolous. Because Gilbert has raised no non-frivolous grounds for appeal, and our independent review has uncovered no other non-frivolous claims, we affirm the judgment of sentence. Judgment of sentence affirmed. Application to withdraw granted. 10/20/2026 ____________________________________________ Commonwealth v. Watson, 310 A.3d 307, 310-11 (Pa. Super. 2024). Neither exception applies here. Accord Commonwealth v. Alameda, 339 A.3d 504, 511 (Pa. Super. 2025). -7-