J-S49039-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CLEO JOSEPH METTS,
Appellant No. 3048 EDA 2015
Appeal from the Judgment of Sentence September 4, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0008095-2013
BEFORE: PANELLA, J., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 20, 2016
Appellant Cleo Joseph Metts appeals from the judgment of sentence
entered in the Court of Common Pleas of Delaware County on September 4,
2015, following the imposition of sentence upon the revocation of his parole.
Appellant’s court-appointed counsel has filed a purported Anders1 brief. For
the reasons discussed below, we remand and direct court-appointed counsel
to file either a proper advocate’s brief or a petition to withdraw and
accompanying brief in accordance with Anders, and Commonwealth v.
Santiago, 602 Pa. 159, 978 A.2d 349 (2009).
We summarize the relevant procedural background of this case as
follows: Appellant, who was represented by counsel, entered a negotiated
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1
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967).
*Former Justice specially assigned to the Superior Court.
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guilty plea to burglary and conspiracy (to commit burglary).2 He was
sentenced to an aggregate term of eight months to twenty-three months in
prison, to be followed by one year of probation.
At some point, Appellant was placed on parole; however, on
September 4, 2014, he failed to appear at a scheduled meeting with his
parole officer. Consequently, on October 9, 2014, the trial court issued a
bench warrant for his arrest, and Appellant was apprehended on June 24,
2015.
Thereafter, Appellant appeared with court-appointed counsel for a
Gagnon II hearing,3 following which Appellant was found to be in violation of
his parole, and it was revoked. On September 4, 2015, the trial court
sentenced Appellant, giving him his full back-time with immediate parole, to
be followed by one year of probation.
This timely appeal followed. The trial court directed Appellant to file a
Pa.R.A.P. 1925(b) statement, and counsel filed a statement pursuant to
Pa.R.A.P. 1925(c)(4) indicating his intent to file an Anders brief. The trial
court filed a brief Pa.R.A.P. 1925(a) opinion noting counsel’s intent to file an
Anders brief.
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2
18 Pa.C.S.A. §§ 3502(a)(2) and 903(c), respectively.
3
Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756 (1973).
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Thereafter, on March 18, 2016, Appellant’s counsel filed in this Court a
brief entitled “Brief of Appellant pursuant to Anders v. California.”
Therein, counsel presented the following sole issue: “Was the sentence
imposed on [Appellant] harsh and excessive under the circumstances
because the order for his immediate parole did not require immediate
release from incarceration?” Anders Brief at 3. Counsel set forth the
reasons supporting the issue but ultimately concluded the issue is frivolous.
See id. at 7-8. However, despite arguing the frivolous nature of the issue,
court-appointed counsel has not filed a petition to withdraw his
representation.
In Anders, the U.S. Supreme Court discussed the obligation of
appointed counsel to an indigent client during direct appeal with respect to
crafting a balance between counsel’s role as advocate and counsel’s
conclusion that any issue raised on direct appeal would be wholly frivolous.
Thus, to withdraw under Anders, court-appointed counsel must satisfy
certain technical requirements.
First, counsel must “petition the court for leave to withdraw and state
that after making a conscientious examination of the record, he has
determined that the appeal is frivolous.” Commonwealth v. Martuscelli,
54 A.3d 940, 947 (Pa.Super. 2012) (quoting Santiago, 602 Pa. at 178, 978
A.2d at 361).
Second, counsel must file an Anders brief, in which counsel:
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(1) provide[s] a summary of the procedural history and facts,
with citations to the record; (2) refer[s] to anything in the record
that counsel believes arguably supports the appeal; (3) set[s]
forth counsel's conclusion that the appeal is frivolous; and (4)
state[s] 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, 602 Pa. at 178-79, 978 A.2d at 361.
Finally, counsel must furnish a copy of the Anders brief to his client
and “advise[ ] him of his right to retain new counsel, proceed pro se or raise
any additional points that he deems worthy of the court’s attention, and
attach [ ] to the Anders petition a copy of the letter sent to the client.”
Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa.Super. 2010) (citation
omitted).
“[If] counsel has satisfied the above requirements, it is then this
Court's duty to conduct its own review of the trial court's proceedings and
render an independent judgment as to whether the appeal is, in fact, wholly
frivolous.” Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa.Super.
2007) (en banc) (quotation marks and quotation omitted).
Instantly, we conclude court-appointed counsel’s representation falls
short of that of an active advocate. Moreover, he has not complied with the
technical requirements related to the withdrawal of his representation. For
instance, he has not made any attempt to fulfill the first requirement
pertaining to petitioning the court for leave to withdraw stating that after
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making a conscientious examination of the record it has been determined
that the appeal would be frivolous. Martuscelli, 54 A.3d at 947.
Moreover, as to the second requirement, with regard to his purported
Anders brief, we note that, although counsel has provided a summary of
the procedural history of this case, he has not included a single citation to
the record. Santiago, 602 Pa. at 178, 978 A.2d at 361. It is further
noteworthy that counsel indicates no transcripts exist, and accordingly, he
filed a Pa.R.A.P. 1923 “Statement in Absence of Transcript.” However, this
Court has not been provided with a copy of this Statement.
Finally, as to the third requirement, there is no indication that counsel
provided a copy of the Anders-styled brief to Appellant or advised him of his
right to retain new counsel, proceed pro se, or raise any additional points
that he deems worthy of this Court’s attention. Daniels, 999 A.2d at 594.
Due to the deficiencies set forth supra, we remand this case and direct
counsel to file, within 30 days of the date of this memorandum, either an
advocate’s brief or a proper petition to withdraw his representation, along
with a proper Anders/Santiago brief. The Commonwealth shall have 30
days from the date that counsel files his brief in order to file a responsive
brief, if necessary.
Case remanded with instructions. Panel jurisdiction retained.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/20/2016
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