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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
LESLIE M. FULTZ
Appellant No. 798 MDA 2017
Appeal from the Judgment of Sentence April 13, 2017
In the Court of Common Pleas of Mifflin County
Criminal Division at No(s): CP-44-CR-0000283-2016
BEFORE: PANELLA, J., SHOGAN, J., and FITZGERALD, J.
MEMORANDUM BY PANELLA, J. FILED NOVEMBER 09, 2017
Appellant, Leslie M. Fultz, appeals from the judgment of sentence
entered on April 13, 2017, in the Mifflin County Court of Common Pleas.
Additionally, Fultz’s counsel-of-record, Stuart A. Cilo, Esquire, has filed a
petition to withdraw from representation, and a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009). We affirm the judgment of sentence and grant Attorney
Cilo permission to withdraw.
On March 21, 2016, Fultz was charged through a criminal complaint with
driving under the influence. Subsequent to a motion in limine filed pursuant
to the holding in Birchfield v. North Dakota, 136 S.Ct. 2160 (2016), the
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Retired Justice assigned to the Superior Court.
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trial court reduced Fultz’s charge to one count of general impairment.
Following a bench trial, the trial court convicted Fultz and sentenced him to a
period of one to six months’ imprisonment. This timely appeal follows.
Prior to addressing the merits of Fultz’s requested appeal, we must first
examine Attorney Cilo’s request to withdraw. The Pennsylvania Supreme
Court has articulated the procedure to be followed when court-appointed
counsel seeks to withdraw from representing an appellant on direct appeal.
[I]n the Anders brief that accompanies court-appointed counsel’s
petition to withdraw, counsel must: (1) provide a summary of the
procedural history and facts, with citations to the record; (2) refer
to anything in the record that counsel arguably believes 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. Once counsel has met his obligations, “it then
becomes the responsibility of the reviewing court to make a full examination
of the proceedings and make an independent judgment to decide whether the
appeal is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5 (citation
omitted).
Attorney Cilo has substantially complied with all of the requirements of
Anders as articulated in Santiago.1 Additionally, Attorney Cilo confirms he
sent a copy of the Anders brief as well as a letter explaining to Fultz that he
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1Attorney Cilo has failed to highlight Fultz’s issue on appeal in the “Statement
of Questions Involved” section of his brief. However, Fultz’s issue is clear upon
a reading of the brief.
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has the right to proceed pro se or the right to retain new counsel. A copy of
the letter is appended to the Anders brief and his petition to withdraw as
counsel. See Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super.
2010); Commonwealth v. Millisock, 873 A.2d 748, 749 (Pa. Super. 2005).
Fultz did not file a response.
Counsel has identified one issue Fultz believes entitles him to relief. Fultz
wishes to challenge the trial court’s decision to hold a bench trial, despite
Fultz’s request for a jury trial.
Similar to the Sixth Amendment of the United States Constitution,
Article 1, Section 9 of the Pennsylvania Constitution provides criminal
defendants the right to a jury trial. See Pa. Const. art. I § 9. However,
both [the] U.S. Constitution and Article I, Section 9 of the
Pennsylvania Constitution only guarantee a defendant a right to a
jury trial for “serious offenses,” or crimes which carry more than
a six month maximum prison sentence. In contrast, crimes that
carry a maximum of six months’ imprisonment or less are
considered “petty offenses” for which there is no right to a jury
trial.
Commonwealth v. Langley, 145 A.3d 757, 760 (Pa. Super. 2016) (citing
Commonwealth v. Mayberry, 327 A.2d 86, 89 (Pa. 1974)). Fultz’s charge
of general impairment carried a maximum sentence of six months
imprisonment. See 75 Pa.C.S.A. § 3803(a)(1). Thus, he was not entitled to a
jury trial.
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After examining the issues contained in the Anders brief and
undertaking our independent review of the record, we concur with counsel’s
assessment that the appeal is wholly frivolous.
Judgment of sentence affirmed. Petition to withdraw as counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/9/2017
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