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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
BRETT MICHAEL SMEAL :
:
Appellant : No. 757 MDA 2018
Appeal from the Judgment of Sentence Entered April 18, 2018
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0000287-2017,
CP-41-CR-0000499-2018
BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY BOWES, J.: FILED JULY 17, 2019
Brett Michael Smeal appeals from the judgment of sentence of six to
twelve years of incarceration that was imposed after he pled guilty to failing
to verify his address and failing to provide accurate registration information,
as required under the Pennsylvania sex offender registration and notification
act (“SORNA”).1 Appellant’s counsel, Dance Drier, Esquire, has filed a petition
to withdraw and a brief pursuant to Anders v. California, 386 U.S. 738
(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We
deny counsel’s request to withdraw and remand for counsel to take
appropriate action in conformance with our decision.
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1 This Court does not quash the present appeal, despite Appellant’s failure to
file separate notices at each docket number, as this appeal was filed prior to
the decision in Commonwealth v. Walker, 185 A.3d 969, 971 (Pa. 2018),
which applies prospectively.
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On September 9, 2013, Appellant was convicted of unlawful contact or
communication with a minor based on an incident that occurred on June 13,
2013, and he was sentenced to six to twenty-three months of incarceration in
the Lycoming County prison. As a result of this conviction, Appellant was
deemed a Tier II sexual offender, and was required to register for a period of
twenty-five years pursuant to SORNA.
In December of 2016, Appellant moved from his registered address, but
did not register the change with the Pennsylvania State Police (“PSP”). The
Commonwealth charged Appellant with failing to comply with sexual offender
registration requirements under SORNA. On August, 23, 2017, Appellant pled
guilty to the charge in exchange for an agreed upon sentence of thirteen to
sixty months of incarceration. Sentencing was deferred in order for a pre-
sentence investigation report to be prepared. Appellant failed to appear for
sentencing twice, resulting in the revocation of the plea agreement and his
bail.
In the meantime, in March of 2018, Appellant was charged at a separate
information with twelve counts of failing to provide accurate registration
information and three counts of failing to register with the PSP, after Appellant
did not provide accurate information regarding his employment, his Facebook
account, and his email address.
On April 18, 2018, Appellant appeared before the trial court to enter an
open guilty plea at both cases. Appellant pled guilty at each case to one count
of failing to register in exchange for the Commonwealth’s withdrawal of the
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remaining charges. The trial court sentenced Appellant to an aggregate
sentence of six to twelve years of incarceration.
Appellant filed a timely notice of appeal. The trial court ordered
Appellant to file a Pa.R.A.P. 1925(b) statement and the clerk of courts to
prepare the appropriate transcripts within fourteen days after receipt of a
request by Appellant. Counsel filed a timely concise statement, but did not
order any transcripts. In response, the trial court authored an opinion.
In this Court, counsel filed both an Anders brief and a petition to
withdraw as counsel, which triggers specific requirements:
Direct appeal counsel seeking to withdraw under Anders must file
a petition averring that, after a conscientious examination of the
record, counsel finds the appeal to be wholly frivolous. Counsel
must also file an Anders brief setting forth issues that might
arguably support the appeal along with any other issues necessary
for the effective appellate presentation thereof.
Anders counsel must also provide a copy of the Anders petition
and brief to the appellant, advising the appellant of the right to
retain new counsel, proceed pro se or raise any additional points
worthy of this Court’s attention.
Commonwealth v. Woods, 939 A.2d 896, 898 (Pa.Super. 2007). Our
Supreme Court has also clarified portions of the Anders procedure:
[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 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 statues on point that have led
to the conclusion that the appeal is frivolous.
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Santiago, supra at 361. If counsel has met these 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.” Id. at 354 n.5.
Counsel’s petition to withdraw and Anders brief substantially complies
with the technical requirements set forth above. Counsel has set forth the
case history, referred to an issue that arguably supports the appeal, stated
his conclusion that the appeal is frivolous, and cited to controlling case law.
See Anders brief at 6-14. Additionally, counsel gave Appellant proper notice
of his right to immediately proceed pro se or retain another attorney.2 See
Santiago, supra; Petition to Withdraw, 1/14/19, at 2.
However, in our independent review of the record, we discovered that
the notes of testimony from Appellant’s guilty plea and sentencing proceeding
are not included. Without these notes of testimony, counsel could not have
fulfilled his duty to review the entire record for any non-frivolous issues.
Commonwealth v. Vilsaint, 893 A.2d 753, 758 (Pa.Super. 2006)
(“[C]ounsel cannot fulfill the mandates of Anders unless he has reviewed the
entire record.”). We therefore cannot conclude that counsel met his
obligations pursuant to Anders. See Commonwealth v. Flowers, 113 A.3d
1246, 1251 (Pa.Super. 2015) (denying counsel’s petition to withdraw and
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2 Appellant did not file a response to counsel’s petition.
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remanding because counsel failed to obtain and review guilty plea transcripts).
As such, we deny counsel’s petition to withdraw and remand with instructions
for counsel to obtain the missing notes of testimony and to supplement the
certified record within thirty days of receipt with either an advocate’s brief or
another Anders brief and petition seeking to withdraw, following counsel’s
review of a complete record.
Petition to withdraw denied. Case remanded with instructions. Panel
jurisdiction retained.
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