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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JASON CISNE
Appellant No. 2078 EDA 2014
Appeal from the Judgment of Sentence March 1, 2010
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006829-2008
BEFORE: GANTMAN, P.J., MUNDY, J., and MUSMANNO, J.
MEMORANDUM BY MUNDY, J.: FILED FEBRUARY 12, 2016
Appellant, Jason Cisne, appeals nunc pro tunc from the March 1, 2010
aggregate judgment of sentence of 25 to 50 years’ incarceration, which was
entered following his guilty plea to third-degree murder, possession of an
instrument of crime (PIC), and possession of a firearm by a prohibited
person (VUFA).1 Appellant’s counsel has filed a motion to withdraw,
together with an Anders2 Brief. Because we conclude counsel has not
complied with the requirements of Anders and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009), we deny counsel’s motion to withdraw
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1
18 Pa.C.S.A. §§ 2502(c), 907(a), and 6105(a)(1), respectively.
2
Anders v. California, 386 U.S. 738 (1967).
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and direct him to file either an advocate’s brief or a new motion to withdraw
together with a compliant Anders brief.
Our review of the certified record discloses the following pertinent
procedural history. On March 1, 2010, Appellant, pursuant to a negotiated
plea agreement, entered a plea of guilty to the aforementioned charges.
Appellant waived the preparation of a presentence report and the trial court
immediately sentenced Appellant in accordance with the terms of the plea
agreement to an aggregate sentence of 25 to 50 years’ incarceration. 3 No
post-sentence motion or direct appeal was filed.
On January 13, 2011, [Appellant] filed a
timely, pro se PCRA petition. PCRA counsel was
appointed, and on January 8, 2013, filed a motion to
withdraw as counsel and accompanying
[4]
Turner/Finley “no merit” letter. Thereafter, on
February 22, 2013, the PCRA court sent [Appellant]
notice, pursuant to Pa.R.Crim.P. 907, of its intent to
dismiss his petition without a hearing. [Appellant]
filed a pro se response to counsel’s “no merit” letter
on March 21, 2013, challenging PCRA counsel’s
petition to withdraw for failing to address plea
counsel’s ineffectiveness in failing to file a direct
appeal. …
On March 22, 2013, the PCRA court entered an
order dismissing [Appellant’s] PCRA petition. The
PCRA court did not, either explicitly or implicitly,
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3
Specifically, the trial court imposed a sentence of 20 to 40 years’
incarceration on the third-degree murder count, a consecutive five to ten
years’ incarceration on the VUFA count, and a concurrent two and a half to
five years’ incarceration on the PIC count. N.T., 3/1/10, at 22.
4
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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grant counsel’s petition to withdraw, nor did it
address [Appellant’s] claim that plea counsel was
ineffective for failing to file a direct appeal.
Commonwealth v. Cisne, 100 A.3d 322 (Pa. Super. 2014) (unpublished
memorandum) (Cisne II).
Appellant filed a timely pro se notice of appeal from the PCRA court’s
order on April 16, 2013. Noting the PCRA court had not permitted counsel
to withdraw, this Court remanded the case for counsel to file an advocate’s
brief or a motion to withdraw and Turner/Finley letter. Commonwealth
v. Cisne, 93 A.3d 502 (Pa. Super. 2013) (unpublished memorandum).
Counsel complied and filed a motion to withdraw and Turner/Finley letter
with this Court. We ultimately determined Appellant was entitled to a
hearing on his allegation that trial counsel was ineffective for failing to file a
requested direct appeal. Cisne II, supra at 6-7. Accordingly, we denied
counsel’s motion to withdraw, vacated the order denying Appellant’s pro se
PCRA petition, and remanded for further proceedings. Id.
Upon remand, the PCRA court conducted a hearing, and on June 27,
2014, with agreement of the parties, granted Appellant’s PCRA petition,
permitting Appellant to file a direct appeal nunc pro tunc. Appellant filed a
notice of appeal on July 22, 2014.5 On May 14, 2015, counsel filed a
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5
The trial court did not require Appellant to file a concise statement of
errors complained of on appeal, pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). The trial court, noting the limited issues available for
direct appeal from the entry of a negotiated guilty plea, to wit, the
(Footnote Continued Next Page)
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Turner/Finley letter with this Court. Noting Appellant’s direct appeal rights
had been reinstated, on September 15, 2015, we ordered counsel’s
Turner/Finley letter stricken, vacated the Commonwealth’s briefing
schedule, and directed counsel to file within 30 days “either a petition to
withdraw as counsel and brief pursuant to Anders [] and [] Santiago, [] or
an advocate’s brief on Appellant’s behalf.” Per Curiam Order, 9/15/15, at 1.
On October 22, 2015, counsel filed a motion to withdraw and an Anders
brief. Appellant filed three pro se responses to counsel’s motion to withdraw
and Anders brief on November 20, 2015, December 8, 2015 and December
29, 2015, respectively.
“Before we begin [any] substantive analysis, we must first review
defense counsel’s Anders brief and motion to withdraw.” Commonwealth
v. Bennett, 124 A.3d 327, 330 (Pa. Super. 2015) (citation omitted).
A request by appointed counsel to withdraw pursuant
to Anders and Santiago gives rise to certain
requirements and obligations, for both appointed
counsel and this Court.
These requirements and the significant protection
they provide to an Anders appellant arise because a
criminal defendant has a constitutional right to a
direct appeal and to counsel on that appeal.
Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa. Super. 2015)
(citations omitted). “[T]he Anders brief aims to provide the appellate
_______________________
(Footnote Continued)
jurisdiction of the trial court, the validity of the plea, and the legality of the
sentence, prepared a Rule 1925(a) opinion addressing those issues. See
Trial Court Opinion, 11/19/14, at 2 n.1.
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courts with a means for making two determinations—whether appointed
counsel has fully supported his client’s appeal to the best of his ability and
whether the appeal is indeed so lacking in merit that counsel should be
permitted to withdraw. Santiago, supra at 355 (citations omitted).
The procedural requirements for withdrawal require
counsel to: 1) petition for leave to withdraw and
state that, after making a conscientious examination
of the record, counsel has concluded that the appeal
is frivolous; 2) provide a copy of the Anders brief to
the defendant; and 3) inform the defendant that he
has the right to retain private counsel or raise, pro
se, additional arguments that the defendant deems
worthy of the court’s attention.
… [If] Counsel [has] complied with the procedural
dictates of Anders, we next consider whether
counsel’s Anders brief meets the substantive
requirements of Santiago. Under Santiago, an
Anders brief 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, supra at 361.
Commonwealth v. Zeigler, 112 A.3d 656, 659-660 (Pa. Super. 2015)
(some citations omitted).
Instantly, in his Anders brief, counsel misidentifies the order appealed
from, the nature of this appeal, and the pertinent issues of arguable merit.
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See Anders Brief at 2-3. Under the “Order in Question” section of his
Anders brief, counsel states as follows. “On Appeal from the Order of
Judgment Rendered By The Honorable Sandy L. V. Byrd in the Philadelphia
Court of Common Pleas on March 22, 2013, which dismissed [Appellant’s]
Pro Se PCRA Petition filed under CP-51-CR-0006829-2008 pursuant to a
Finley Letter filed by Counsel.” Id. at 2. Counsel further identifies the
following as the sole issue of arguable merit. “Is there any reason to believe
that the Honorable Sandy L. V. Byrd, of the Philadelphia Court of Common
Pleas erred when he dismissed [Appellant’s] pro se PCRA Petition pursuant
to counsel’s Finley Letter?” Id. at 3. Counsel’s recitation of the procedural
history omits any actions by the PCRA court in reinstating Appellant’s direct
appeal rights on remand. Id. at 4-5. Counsel’s discussion pertains to
Appellant’s ineffectiveness of counsel issues raised in his January 13, 2011
pro se PCRA petition. Id. at 8-10. Although reminded by this Court that the
instant appeal is a nunc pro tunc direct appeal from Appellant’s March 1,
2010 judgment of sentence, counsel has done little else than retitle his
Turner/Finley letter as an Anders brief. In the process, counsel has failed
to comply with the dictates of Anders and Santiago and has paid mere lip
service to their technical requirements. By misconstruing the entire nature
of this appeal, counsel has failed to demonstrate “conscientious examination
of the record” or “refer to anything in the record that counsel believes
arguably supports the appeal.” See Zeigler, supra.
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In light of the foregoing, we once again remand the case with
instructions to counsel to file within 30 days a compliant motion to withdraw
together with an Anders brief, or an advocate’s brief on behalf of Appellant.
Because of this remand, we do not address the issues Appellant raised in his
various responses to counsel’s original Anders brief. Our remand is without
prejudice to Appellant to file further responses in the event counsel files a
new Anders brief, and it shall be incumbent upon counsel to consider
Appellant’s issues prior to any subsequent filings.
Petition to withdraw denied. Case remanded with instructions.
Jurisdiction retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/12/2016
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