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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
AMEEN MCNAIR
Appellant No. 1027 EDA 2016
Appeal from the Judgment of Sentence February 2, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006577-2009
BEFORE: BENDER, P.J.E., RANSOM, J., and FORD ELLIOTT, P.J.E.
JUDGMENT ORDER BY RANSOM, J.: FILED JULY 26, 2017
Appellant, Ameen McNair, appeals from the judgment of sentence of
five to ten years of incarceration, consecutive to any other sentence he was
currently serving, imposed February 2, 2016, following a revocation of
probation hearing. Additionally, Appellant’s counsel, Richard H. Maurer,
Esq., seeks to withdraw his representation of Appellant pursuant to Anders
v. California, 87 S. Ct. 1936 (1967), and Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009). As counsel’s Anders brief is deficient, we deny
his petition to withdraw and direct him to file either a proper Anders brief or
a brief on the merits.
Pursuant to Anders and Santiago when, after a conscientious review
of the record, counsel determines that there exist no non-frivolous issues for
review, counsel must: 1) petition the Court for leave to withdraw, certifying
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that after a thorough review of the record, counsel has concluded the issues
to be raised are wholly frivolous; 2) file a brief referring to anything in the
record that might arguably support the appeal; and 3) furnish a copy of the
brief to the appellant and advise him of his right to obtain new counsel or file
a pro se brief to raise any additional point the appellant deems worth of
review. Santiago, 978 A.2d at 358-61.
Instantly, the letter sent to Appellant advising him of his right to
respond is deficient. It states, “If the Superior Court approves the brief and
grants the motion, it will allow me to withdraw from this appeal and give you
some period of time (I requested 45 days) to raise new issues, either by
yourself or through counsel.” We note that counsel’s petition to withdraw
and the merits of the case are conducted at the same time, and counsel is
not permitted to withdraw unless the court finds the appeal frivolous.
Santiago, 978 A.2d at 358-61. Appellant would not be permitted to file a
response after such a determination. Appellant may file a response to this
court upon notification of the Anders filing by counsel and prior to the case
proceeding to the merits panel for review. Id.
Further, counsel did not properly advise Appellant that he may proceed
either pro se or with privately retained counsel. See Commonwealth v.
Millisock, 873 A.2d 748, 752 (Pa. Super. 2005). Accordingly, counsel’s
petition to withdraw is denied.
Petition to withdraw denied. Counsel is directed to certify to the
Prothonotary that he has forwarded a copy of this Order to Appellant by
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certified mail, return receipt requested. Appellant has thirty days to respond
upon receipt of this Order. Jurisdiction retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/26/2017
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