J-S23033-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DAVID JULIUS PRICE, SR., :
:
Appellant : No. 1647 EDA 2014
Appeal from the Judgment of Sentence Entered April 30, 2014,
in the Court of Common Pleas of Delaware County,
Criminal Division, at No(s): CP-23-CR-0006350-2013
BEFORE: DONOHUE, SHOGAN, and STRASSBURGER, JJ.*
MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 26, 2015
David Julius Price, Sr. (Appellant) appeals from the judgment of
sentence entered April 30, 2014, following his guilty plea to one count of
driving under the influence of alcohol (DUI) - highest rate of alcohol - third
offense, three counts of recklessly endangering another person, and one
count of driving while operating privilege was suspended or revoked.
Counsel for Appellant has filed a petition to withdraw and brief pursuant to
Anders v. California, 386 U.S. 738 (1967) and Commonwealth v.
Santiago, 978 A.2d 349, 361 (Pa. 2009). On June 11, 2015, this panel
remanded the case, directing counsel either to comply with the requirements
of Anders or to file an advocate’s brief. Upon review of counsel’s new
petition to withdraw and brief, we again remand this case with instructions.
*Retired Senior Judge assigned to the Superior Court.
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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.
Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)
(citations omitted).
In our prior memorandum, we denied counsel’s petition to withdraw
and pointed out deficiencies in counsel’s petition and Anders brief: counsel
purportedly reviewed Appellant’s discretionary aspects of sentencing claim;
however, counsel’s stated reason for concluding the argument was frivolous
was legally erroneous; counsel failed to preserve properly the discretionary
aspects claim by filing a separate Pa.R.A.P. 2119(f) statement, and failed to
indicate whether Appellant’s claim raised a substantial question for our
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review. With respect to the final two issues, we set forth for counsel the
relevant procedure for challenging the discretionary aspects of sentence on
direct appeal:
Before [this Court may] reach the merits of [a challenge to
the discretionary aspects of a sentence], we must engage
in a four part analysis to determine: (1) whether the
appeal is timely [filed]; (2) whether Appellant preserved
his issue; (3) whether Appellant’s brief includes a concise
statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of
sentence; and (4) whether the concise statement raises a
substantial question that the sentence is appropriate under
the sentencing code.... [I]f the appeal satisfies each of
these four requirements, we will then proceed to decide
the substantive merits of the case.
Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations
omitted); see Commonwealth v. Price, 1647 EDA 2014, at *6 n2 (Pa.
Super. filed June 11, 2015).
On July 27, 2015, counsel filed a new petition to withdraw and Anders
brief. While he now concedes that the discretionary aspects of Appellant’s
sentence are reviewable on direct appeal, counsel has once more failed to
comply with the requirements of Disalvo. Accordingly, we are unable to
review Appellant’s substantive issue.
Thus, we again “deny the petition to withdraw and remand the case
with appropriate instructions … directing counsel either to comply with
Anders or file an advocate’s brief on Appellant’s behalf.” Wrecks, supra.
We note that we will not countenance a third non-compliant effort.
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J-S23033-15
Petition to withdraw as counsel denied. Case remanded with
instructions. Jurisdiction retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/26/2015
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