J-S20031-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SHANE MICHAEL GILLMEN,
Appellant No. 1253 WDA 2015
Appeal from the Judgment of Sentence July 1, 2015
in the Court of Common Pleas of Jefferson County
Criminal Division at Nos.: CP-33-CR-0000008-2015
CP-33-CR-0000118-2015
BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MARCH 3, 2016
Appellant, Shane Michael Gillmen, appeals from the judgment of
sentence entered on July 1, 2015, following revocation of his probation.
Because Appellant’s counsel failed to comply with the specific procedural
requirements of Anders and Santiago,1 or file a petition to withdraw, we
remand.
Appellant contends that he committed a relatively minor technical
violation of his probation, and therefore the court’s imposition of a sentence
of two and one-half to five years’ imprisonment was excessive. (See
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*
Retired Senior Judge assigned to the Superior Court.
1
Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
J-S20031-16
Appellant’s brief, at 9-10). Our standard of review of a sentence following
revocation of probation is limited to determining whether the trial court
committed an error of law or an abuse of discretion. See Commonwealth
v. Colon, 102 A.3d 1033, 1041 (Pa. Super. 2014), appeal denied, 109 A.3d
678 (Pa. 2015). Here, in Appellant’s brief, counsel briefly discusses
Appellant’s claim, and concludes that “[A]ppellant’s averments do not rise to
the level of an abuse of discretion” and “the instant appeal is without merit
and wholly frivolous. . . . based on a thorough review of the record, file and
all matters associated with this case.” (Id. at 10; see id. at 9-10). Counsel
has not filed a petition to withdraw from representation.
Court-appointed counsel who seek to withdraw from representation
must file a brief that meets the requirements of Anders and Santiago, and
must petition the court for leave to withdraw.2 Commonwealth v. Lilley,
978 A.2d 995, 997 (Pa. Super. 2009). Otherwise, counsel must file an
advocate’s brief.
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2
Counsel must also provide a copy of the Anders brief and petition to
withdraw to the appellant, together with a letter that advises the appellant
of his or her right to “(1) retain new counsel to pursue the appeal; (2)
proceed pro se on appeal; or (3) raise any points that the appellant deems
worthy of the court’s attention in addition to the points raised by counsel in
the Anders brief.” Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa.
Super. 2007), appeal denied, 936 A.2d 40 (Pa. 2007) (citation omitted); see
also Commonwealth v. Millisock, 873 A.2d 748, 751–52 (Pa. Super.
2005) (requiring counsel to attach to petition to withdraw copy of letter sent
to client advising of his rights).
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J-S20031-16
We observe that counsel has failed to comply with these requirements,
and accordingly, we are compelled to remand. Counsel shall have thirty
days from the date of this Memorandum either to file a properly developed
merits brief or a petition to withdraw and any supplemental Anders brief in
compliance with Anders and Santiago. If counsel files a petition to
withdraw, Appellant may file with this Court his own brief pro se, or by newly
retained counsel, within forty-five days of the date current counsel files a
new Anders brief and petition. See Millisock, supra at 752. The
Commonwealth may respond to any brief filed on behalf of Appellant within
thirty days of the date Appellant files his brief.
Case remanded. Panel jurisdiction retained.
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