J-S22010-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL ROMAN
Appellant No. 839 WDA 2014
Appeal from the Judgment of Sentence April 17, 2014
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000029-2014
CP-25-CR-0001311-2013
CP-25-CR-0001314-2013
CP-25-CR-0001317-2013
CP-25-CR-0001319-2014
CP-25-CR-0002074-2013
CP-25-CR-0002115-2013
BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER, J.*
JUDGMENT ORDER BY PANELLA, J. FILED MAY 22, 2015
Appellant, Michael Roman, appeals from the judgment of sentence
entered April 17, 2014, in the Court of Common Pleas of Erie County. We
are constrained to remand for the appointment of new counsel, with
instructions.
We note that although counsel herein, Jason A. Checque, Esquire,
seeks to withdraw from this appeal on the basis of frivolity, he has failed to
file a petition to withdraw as counsel, thus rendering his attempt to proceed
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S22010-15
under Anders v. California, 386 U.S. 738 (1967), Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981), and their progeny deficient. By per
curiam Order entered December 18, 2014, this Court directed counsel to file
a petition to withdraw as counsel as follows:
AND NOW, upon review of the Brief for Appellant, filed on
September 8, 2014, by Jason A. Checque, Esquire, it would
appear that by inclusion within the Argument section of the brief
of a "Part B -- Santiago Argument", at pages 11-12, in which
counsel argues the sole issue raised is non-frivolous, counsel for
appellant has attempted to file an Anders brief pursuant to
Anders v. California, 386 U.S. 738 (1967), Commonwealth
v. McClendon, 434 A.2d 1185 (Pa. 1981), and Commonwealth
v. Santiago, 978 A.2d 349 (Pa. 2009). However, counsel has
failed to file a contemporaneous petition to withdraw as counsel
as required. See Commonwealth v. Goodwin, 928 A.2d 287,
290 (Pa.Super. 2007)(en banc; "When faced with a purported
Anders brief, this Court may not review the merits of any
possible underlying issues without first examining counsel's
request to withdraw."); Commonwealth v. Wrecks, 931 A.2d
717, 721 (Pa.Super.2007)(“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."). Nor has counsel filed the required
notice letter addressed to the appellant explaining appellant's
rights under Anders and enclosing copies of the Anders brief
and petition to withdraw as counsel. The notice letter is used by
counsel to advise the appellant of the rights associated with the
Anders process to this Court. See Commonwealth v. Woods,
939 A.2d 896, 900 (Pa.Super. 2007)(citing Commonwealth v.
Millisock, 873 A.2d 748, 752 (Pa.Super. 2005)). Accordingly,
within fourteen (14) days of the date of this Order, counsel is
directed to comply with the dictates of the Anders requirements
and file a petition to withdraw as counsel with this Court, with an
accompanying notice letter to appellant-Roman enclosing a copy
of both the petition to withdraw as counsel and Anders brief,
and explaining to appellant-Roman his rights in compliance the
dictates of Anders and Woods.
Per Curiam Order, 12/18/14.
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As of the date of this writing, Attorney Checque has not responded to
this Court’s Order of December 18, nor filed a petition to withdraw with this
Court. Such inaction is simply unacceptable and we admonish Attorney
Checque’s quiescence. His unprofessional conduct has needlessly delayed
the resolution of this appeal.
Since we may not address the merits of the issues raised on appeal
without first reviewing the request to withdraw, see Commonwealth v.
Rojas, 874 A.2d 638, 639 (Pa. Super. 2005), we cannot decide this case on
the merits until an appropriate Anders brief is filed.
Accordingly, we direct the trial court “to revoke [counsel’s]
appointment and withhold any fees which would normally be paid for this
appeal and to appoint competent counsel to represent Appellant on appeal.”
Commonwealth v. McDaniels, 785 A.2d 120, 122 (Pa. Super. 2001). “If
[counsel] has received any fees for this appeal, he is directed to reimburse
the county forthwith the amount of said fees.” Id.
Once the trial court appoints new counsel, we direct our Prothonotary
to set a new briefing schedule. New counsel is directed to review the record
and file either an advocate’s brief or a petition to withdraw as counsel and
accompanying Anders brief setting forth case law and citations to the
sentencing record indicating that the issues are wholly frivolous.
Petition to withdraw denied. Case remanded with instructions. Panel
jurisdiction retained.
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