J-S22036-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
SAUNDRA LEE DINGER, :
:
Appellant : No. 1784 WDA 2014
Appeal from the Judgment of Sentence Entered September 22, 2014,
in the Court of Common Pleas of Jefferson County,
Criminal Division, at No(s): CP-33-CR-0000445-2011 and
CP-35-CR-0000605-2012
BEFORE: PANELLA, LAZARUS, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED MAY 15, 2015
Saundra Lee Dinger (Appellant) appeals from a judgment of sentence
entered after the trial court revoked her probation. In addition, Appellant’s
counsel has filed a petition to withdraw and a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009). We deny counsel’s petition to withdraw and remand
with instructions.
We briefly summarize the background underlying this matter as
follows. The trial court revoked Appellant’s probation and sentenced her.
Appellant timely filed a post-sentence motion, which the trial court denied.
Appellant timely filed a notice of appeal. The trial court directed Appellant to
*Retired Senior Judge assigned to the Superior Court.
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comply with Pa.R.A.P. 1925(b). Appellant filed a 1925(b) statement,1 and
the trial court subsequently filed an opinion in compliance with Pa.R.A.P.
1925(a).
Counsel then filed with this Court a petition to withdraw and an
Anders brief. Thus, before we consider the substance of this appeal, we
must address counsel’s compliance with Anders.
Direct appeal counsel seeking to withdraw under Anders must
file a petition averring that, after a conscientious examination of
the record, counsel finds the appeal to be wholly frivolous.
Counsel must also file an Anders brief setting forth issues that
might arguably support the appeal along with any other issues
necessary for the effective appellate presentation thereof….
Anders counsel must also provide a copy of the Anders
petition and brief to the appellant, advising the appellant of the
right to retain new counsel, proceed pro se or raise any
additional points worthy of this Court’s attention.
If counsel does not fulfill the aforesaid technical
requirements of Anders, this Court will deny the petition to
withdraw and remand the case with appropriate instructions
(e.g., directing counsel either to comply with Anders or file an
advocate’s brief on Appellant's behalf). By contrast, 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. If
the appeal is frivolous, we will grant the withdrawal petition and
affirm the judgment of sentence. However, if there are non-
frivolous issues, we will deny the petition and remand for the
filing of an advocate’s brief.
1
Appellant’s counsel failed to append the 1925(b) statement to the Anders
brief, in violation of Pa.R.A.P. 2111(d).
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Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)
(citations omitted). Our Supreme Court has expounded further upon the
requirements of Anders as follows.
[I]n the Anders brief that accompanies court-appointed
counsel’s petition to withdraw, 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 statutes on point that have led to the conclusion that
the appeal is frivolous.
Santiago, 978 A.2d at 361.
In his petition to withdraw, counsel asserts that Appellant believes the
trial court abused its discretion in the manner in which it sentenced her.
Counsel avers that he reviewed the record in this case and that the appeal is
wholly frivolous. According to counsel, he served Appellant with a copy of
the petition to withdraw, the Anders brief, and a letter informing Appellant
that she may retain new counsel or raise any points worthy of this Court’s
attention. However, the certificate of service that counsel attached to the
petition to withdraw does not reflect that counsel served Appellant with the
petition.2
2
In Commonwealth v. Thomas, 511 A.2d 200, 201 (Pa. Super. 1986),
this Court suggested in a footnote that counsel simply could aver that
counsel furnished the appellant with a copy of the Anders brief and petition
to withdraw “by way of affidavit, certificate of service, or the petition for
leave to withdraw.” This statement constitutes obiter dictum. Even if the
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Regarding the Anders brief, its “statement of the case” does not
contain any citation to the record. Of particular concern is counsel’s
references to Appellant’s Gagnon I3, 4hearing. A transcript of that hearing is
not contained in the certified record. Furthermore, counsel does not
adequately explain his reasons for concluding that the appeal is wholly
frivolous.
Due to these deficiencies, we deny counsel’s petition to withdraw
without prejudice. We remand this case and direct counsel to file, within 30
days of the date of this memorandum, either an advocate’s brief or a proper
Anders brief and petition to withdraw. The Commonwealth shall have 30
days from the date that counsel files his brief in order to file a responsive
brief.
Petition to withdraw as counsel denied. Case remanded with
instructions. Panel jurisdiction retained.
statement were controlling law, we still would deny counsel’s petition to
withdraw due to the other deficiencies we highlight below.
3
Gagnon v. Scarpelli, 411 U.S. 778 (1973).
4
“[T]he Gagnon I hearing is similar to the preliminary hearing afforded all
offenders before a Common Pleas Court trial: the Commonwealth must
show probable cause that the violation was committed.” Commonwealth
v. Ferguson, 761 A.2d 613, 617 (Pa. Super. 2000) (citation omitted)
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