J-S20042-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TAI THACH :
:
Appellant : No. 2641 EDA 2016
Appeal from the Judgment of Sentence February 6, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004527-2013
BEFORE: BOWES, J., OTT, J. and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OTT, J.: FILED JUNE 20, 2017
Tai Thach appeals from the judgment of sentence imposed on
February 6, 2014, in the Court of Common Pleas of Philadelphia County,
following his guilty plea to the charges of aggravated assault and conspiracy.
In this timely appeal,1 Counsel identifies the issue Thach wishes to preserve,
specifically, he was not properly informed that as a consequence of his plea
he might be deported and that the guilty plea colloquy was deficient due to
the inadequacy of the Cambodian translator supplied by the Court. Counsel
has filed an Anders2 brief, asserting that all claims are wholly frivolous.
Counsel has also filed a motion to withdraw from representation and has
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1
Thach filed a PCRA petition seeking reinstatement of his direct appeal
rights, which was granted without opposition on December 12, 2016.
2
Anders v. California, 386 U.S. 738 (1967).
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mailed Thach the required notification of intent to file an Anders brief along
with a recitation of Thach’s rights. Because it is unclear if Thach
comprehends the English language sufficiently to understand the meaning
and import of the notification letter and Anders brief, we must remand to
ensure Thach’s comprehension.
Initially, we note that we may not address the merits of the
issue raised on appeal without first reviewing the request to
withdraw. Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.
Super. 2005). Therefore, we review counsel's petition at the
outset. Our Supreme Court's decision in [Commonwealth v.]
Santiago, supra, [978 A.2d 349 (Pa. 2009)] did not alter the
procedural requirements counsel must satisfy in requesting to
withdraw from representation. 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. Lilley, 978 A.2d 995, 997 (Pa. Super.
2009).
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013)
While counsel has complied with the letter of the law, this matter
presents a unique situation. Thach needed a Cambodian translator in his
court appearances and he denied any ability to read or write in English. See
N.T. Guilty Plea, 12/6/2016 at 3. Neither does he read or write the
Cambodian language. Id. at 3. He understands the spoken Cambodian
language, id., but was not asked if he understood spoken English.
Accordingly, the record is silent as to his actual capabilities in understanding
spoken English.
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Thach’s counsel undeniably provided Thach with the required copy of
the Anders brief as well as the letter explaining Thach’s rights. However,
those documents, as found in the certified record, were in English, which
Thach can neither read nor write. The certified record does not reflect
whether the notice was translated for Thach, nor provided any indication
whether SCI Benner Township, the state correctional institution wherein
Thach is housed, has the services of a certified Cambodian translator. If
Thach was unable to comprehend the Anders notice, it cannot be said that
he was properly notified of the status of his appeal or of his rights to
challenge counsel’s determination.
In light of the above, we are required to remand this matter to ensure
Thach has been adequately notified of his rights pursuant to Anders.3 If
counsel has already provided Thach with notice in a form Thach can
understand or arranged for a translator, counsel shall inform this court of
that fact, including a statement of how said notification was accomplished,
within 15 days of the date of this decision.
However, if said notification has not already been accomplished,
counsel shall have 60 days from the date of this decision to achieve proper
notification through the use of a certified Cambodian translator. Thach shall
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3
This decision is purely procedural in nature and is not intended to be
commentary on the merits of counsel’s Anders analysis.
-3-
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then have another 60 days in which to respond, also through the use of a
certified Cambodian translator
This matter is remanded for action consistent with this decision. Panel
jurisdiction retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/20/2017
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