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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ASHLYNN TAYLOR HARTMAN
Appellant No. 2027 MDA 2015
Appeal from the Judgment of Sentence September 16, 2015
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0000006-2015
BEFORE: SHOGAN, J., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY OTT, J.: FILED JUNE 09, 2016
Ashlynn Taylor Hartman appeals from the judgment of sentence
imposed September 16, 2015, in the Franklin County Court of Common
Pleas. The trial court imposed an aggregate sentence of eight to 36 months’
imprisonment, following Hartman’s guilty plea to charges of possession of a
controlled substance and theft.1 Contemporaneous with this appeal,
Hartman’s counsel has filed a petition to withdraw from representation and
an Anders brief. See Anders v. California, 386 U.S. 738 (1967);
Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981). The sole issue
addressed in the Anders brief is a challenge to the discretionary aspects of
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*
Retired Senior Judge assigned to the Superior Court.
1
35 P.S. §780-113(a)(16) and 18 Pa.C.S. § 3921(a), respectively.
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Hartman’s sentence. For the reasons that follow, we deny counsel’s petition
to withdraw, and remand for further proceedings.
The facts underlying Hartman’s guilty plea are as follows. On
November 7, 2014, Hartman stole three hydrocodone pills from the
complainant, Ralph Kline. When confronted by the police, Hartman admitted
to the theft, and, on August 5, 2015, entered a guilty plea to the above-
stated charges. On September 16, 2015, the trial court imposed a sentence
of six to 24 months’ imprisonment for the charge of possession of a
controlled substance, and a consecutive term of two to 12 months’
imprisonment for the charge of theft.2 Hartman filed a timely post sentence
motion seeking modification of her sentence. The trial court denied the
motion on October 23, 2015, and this timely appeal followed.3
When counsel files a petition to withdraw and accompanying Anders
brief, we must first examine the request to withdraw before addressing any
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2
The same day, Hartman was sentenced in three separate cases for
violations of probation. See Docket Nos. 1353-2012, 364-2013, and 1212-
2014. On those charges, the court imposed an aggregate term of 30 to 72
months’ imprisonment, and ordered that sentence to run consecutively to
the sentence imposed herein. The appeals from those sentences were
consolidated, and are pending before this Court. See Superior Court Docket
Nos. 1800 MDA 2015, 1801 MDA 2015, and 1802 MDA 2015.
3
On November 20, 2015, the trial court ordered Hartman to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Hartman complied with the court’s directive, and filed a concise statement
on December 11, 2015.
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of the substantive issues raised on appeal. Commonwealth v. Goodwin,
928 A.2d 287, 290 (Pa. Super. 2007) (en banc).
Pursuant to Anders and its progeny, in order for counsel to withdraw,
counsel must:
1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel
has determined that the appeal would be frivolous; 2) furnish a
copy of the brief to the defendant; and 3) advise the defendant
that he or she has the right to retain private counsel or raise
additional arguments that the defendant deems worthy of the
court’s attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc) (emphasis supplied).
Here, it appears counsel has technically complied with the
requirements for withdrawal outlined in Anders, supra, and its progeny.
Notably, counsel filed a petition for leave to withdraw, in which she states
her belief that the appeal is wholly frivolous, filed an Anders brief pursuant
to the dictates of Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa.
2009), furnished a copy of the Anders brief to Hartman and advised
Hartman of her right to retain new counsel or proceed pro se.4 Cartrette,
supra, 83 A.3d at 1032.
Nevertheless, in order to withdraw from representation, counsel is
required to conduct a review of the entire record to ensure there are no
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4
Hartman has not responded to counsel’s Anders brief.
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non-frivolous issues for appeal. Cartrette, supra. Our review of the
certified record, however, reveals no transcript from Hartman’s guilty plea
hearing. “Without these notes of testimony, [c]ounsel could not have
fulfilled [her] duty to review the entire record for any non-frivolous issues.”
Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015)
(denying petition to withdraw and remanding for further proceedings when
guilty plea transcript was not included in certified record). See also
Commonwealth v. Vilsaint, 893 A.2d 753 (Pa. Super. 2006).
Accordingly, we conclude counsel failed to fulfill her obligations for
withdrawal pursuant to Anders and its progeny.5 Therefore, we deny
counsel’s petition to withdraw and remand with instructions to counsel to
obtain the notes of testimony from Hartman’s August 5, 2015, guilty plea
hearing. Within 30 days of receipt of that transcript, and after a thorough
review of the record, counsel is then directed to file either an advocate’s
brief or another Anders brief and concomitant petition to withdraw as
counsel.
Petition to withdraw as counsel denied. Case remanded for
proceedings consistent with this Memorandum. Panel jurisdiction retained.
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5
We note that, in her petition for leave to withdraw, counsel did not aver
that she conducted a “conscientious examination of the record.” Cartrette,
83 A.3d at 1032 (Pa. Super. 2013). Rather, she simply stated that she had
“reviewed all issues for appeal.” Petition of Counsel for Leave to Withdraw,
1/26/2016, at ¶ 3.
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