J-S26016-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTHONY JONES
Appellant No. 3291 EDA 2014
Appeal from the Judgment of Sentence entered November 28, 2011
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0015505-2008
BEFORE: OLSON, STABILE, and STRASSBURGER,* JJ.
MEMORANDUM BY STABILE, J.: FILED JUNE 20, 2016
Appellant, Anthony Jones, appeals from the judgment of sentence the
Court of Common Pleas of Philadelphia County entered November 28, 2011.
Counsel has filed a brief under Anders v. California, 386 U.S. 738 (1967),
and petitioned to withdraw as counsel, alleging that this appeal is wholly
frivolous. Upon review, we deny counsel’s application to withdraw as
counsel, and remand this case either for a compliant Anders/Santiago1
brief or an advocate’s brief.
The trial court summarized the procedural background of the case in
its Rule 1925(a) opinion, which reads:
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
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The relevant facts regarding the instant appeal are as follows:
On September 26, 2011, Appellant Anthony Jones [] was found
guilty in a waiver trial before the Honorable Ellen Ceisler and was
convicted of [p]ossession of a [f]irearm [p]rohibited. On
November 28, 2011, Judge Ceisler sentenced Appellant to a term
of between three and one half to seven years of imprisonment.
On July 9, 2012, Appellant filed a timely pro se petition under
the Post Conviction Relief Act. Appellant was assigned a new
court appointed attorney, [present counsel], who filed an entry
of appearance on May 3, 2013.
On March 6, 2014, Appellant filed an Amended Petition pursuant
to the Post Conviction Relief Act. On October 30, 2014, Judge
Ceisler reinstated Appellant’s appeal rights nunc pro tunc. On
October 31, 2014, this [c]ourt entered an order, pursuant to
Pa.R.A.P. 1925(b)(1), instructing Appellant to file a concise
statement of errors complained of on appeal no later than
twenty-one days after Appellant received notice of said order.
Appellant failed to file such a concise statement within the
required twenty-one days; however, on February 24, 201[5],
[c]ounsel for Appellant did file an untimely statement, pursuant
to Pa.R.A.P. 1925(c)(4), indicating his intent to file an
Anders/McClendon[2] brief[.]
Trial Court Opinion, 4/29/14, at 1-2 (footnotes omitted).
On appeal, Appellant raises the following issue:
Were any meritorious issues properly raised or preserved in this
appeal?
Appellant’s Brief at 7.3
When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first examining counsel’s petition to
____________________________________________
2
Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981).
3
A review of the brief reveals that Appellant intended to raise ineffective
assistance of counsel claims (IAC) pertaining to trial counsel.
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withdraw. See Santiago, 978 A.2d at 361; see also Commonwealth v.
Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc). It is well-
established that, in requesting a withdrawal, counsel must satisfy the
following procedural requirements: 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)
provide a copy of the brief to the defendant; and 3) advise the defendant
that he or she has the right to retain private counsel, proceed pro se or raise
additional arguments that the defendant considers worthy of the court’s
addition. Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super. 2009).
Instantly, counsel’s petition to withdraw from representation provides
that counsel reviewed the record and concluded that the appeal is frivolous.
Furthermore, counsel notified Appellant that he was seeking permission to
withdraw and provided Appellant with copies of the petition to withdraw and
his Anders brief. Counsel also advised Appellant of his right to retain new
counsel, proceed pro se, or raise any additional points he deems worthy of
this Court’s attention. Accordingly, we conclude that counsel has satisfied
the procedural requirements of Anders.
We next must determine whether counsel’s Anders brief complies with
the substantive requirements of Santiago, wherein our Supreme Court
held:
[I]n the Anders brief that accompanies court-appointed
counsel’s petition to withdraw, counsel must: (1) provide a
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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, 978 A.2d at 361. Here, our review of the brief indicates that
counsel has failed to comply with the briefing requirements of Santiago.
The summary of the procedural history and facts consists of a few
sentences, with no citations to the record, or description of the facts
underlying Appellant’s conviction. Counsel does not refer to anything in the
record that he believes arguably supports the appeal, nor did he state there
are no references for him to make.4 Counsel merely addresses Appellant’s
arguments in support of this appeal (IAC claims), explaining why the issues
have no merit,5 but fails to cite any statute or caselaw “on point that have
led to the conclusion that the appeal is frivolous.” Santiago, 978 A.2d at
361. Counsel also states the IAC claims have no merit because “in most
cases ineffective assistance of trial counsel arguments cannot be brought on
____________________________________________
4
“Without one or the other, we are not assured, as Anders requires, that
counsel fully performed his duty as [Appellant]’s advocate to independently
search the record as a trained advocate with an eye to uncovering
appealable error, before concluding that [Appellant]’s appeal was frivolous.”
Santiago, 978 A.2d at 360.
5
Counsel blurs the distinction between “wholly frivolous” and “no-merit”.
See Santiago, 978 A.2d at 358-59.
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direct appeal.” Appellant’s Brief at 10. While the statement is generally
true, there is no explanation why the issues raised by Appellant cannot be
addressed at this junction. There are indeed exceptions to the general rule,
both falling within the trial court’s discretion. See Commonwealth v.
Holmes, 79 A.3d 562, 563-64 (Pa. 2013). Here, the trial court never had a
chance to address the exceptions because it was never apprised of the
issues (counsel filed an untimely Rule 1925(c)(4) statement) and the trial
court’s Rule 1925(a) opinion consists only of the factual and procedural
background, declining to provide any further analysis based on counsel’s
Rule 1925(c)(4) statement (relying on Commonwealth v. McBride, 957
A.2d 752 (Pa. Super. 2008) for the proposition that “[I]f counsel files a
statement of intent to file an Anders/McClendon brief pursuant to Rule
1925(c)(4), a trial court opinion is not necessary.”).
Due to counsel’s failure to comply with Anders and its progeny, we
deny counsel’s application to withdraw as counsel. We remand this case
with instruction to counsel to file either a compliant Anders/Santiago brief
or an advocate brief. Counsel is directed to comply with this directive within
30 days of the date of this Memorandum. Appellant and Commonwealth
may respond within 30 days of counsel’s filing to whatever course of action
is chosen by counsel.
Application to withdraw as counsel denied. Case remanded.
Jurisdiction retained.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/20/2016
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