Com. v. Bailey, K.

• Court: Superior Court of Pennsylvania
• Decided: July 15, 2019
• Docket: 1628 WDA 2018
• Status: Unpublished

Opinion

J-S27035-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KEVIN R. BAILEY : : Appellant : No. 1628 WDA 2018

Appeal from the Judgment of Sentence Entered October 26, 2018 In the Court of Common Pleas of Crawford County Criminal Division at No(s): CP-20-CR-0000485-2018

BEFORE: OLSON, J., OTT, J., and COLINS*, J.

MEMORANDUM BY COLINS, J.: FILED JULY 15, 2019

Appellant, Kevin R. Bailey, appeals from the judgment of sentence

imposed after entering a guilty plea. Appellate counsel has filed a petition to

withdraw and an Anders1 brief, stating that the appeal is wholly frivolous.

After careful review, we deny counsel’s petition to withdraw and direct counsel

to obtain the missing notes of testimony from Appellant’s September 6, 2018

guilty plea hearing and to file an advocate’s brief or another Anders brief and

petition seeking to withdraw following his review of the complete record. The

Commonwealth may file a brief within 30 days after service of the brief from

Appellant’s counsel.2 ____________________________________________

1 Anders v. California, 386 U.S. 738 (1967).

2 If the Commonwealth does not intend to file a brief in response, we request that the Commonwealth send a letter to this Court’s Prothonotary informing this Court of that decision as soon as possible.

____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S27035-19

The facts underlying this appeal are as follows. On multiple occasions

between January 1, 2017 and March 14, 2018, Appellant touched the vagina

of his biological daughter, J.L.B., with his fingers and tongue. J.L.B. would

have been six years old when the abuse started. On September 6, 2018

Appellant entered into a guilty plea to three counts of rape of a child, one

count of involuntary deviate sexual intercourse with a child and two counts of

aggravated indecent assault.3 On October 26, 2018, Appellant received an

aggregate sentence of 480 to 960 months’ incarceration. Appellant filed a

timely post-sentence motion challenging the discretionary aspects of his

sentence. The trial judge denied Appellant’s motion. On November 9, 2018,

Appellant filed this timely direct appeal.4

On March 20, 2019, appellate counsel filed an Anders Brief, in which

he presented the following issue:

Whether Appellant has any non-frivolous issues to raise on appeal?

Anders Brief at 5. On March 12, 2019, appellate counsel sent a letter to

Appellant, informing him that he intended to file an Anders brief and petition

____________________________________________

3 18 Pa.C.S. §§ 3121(c), 3123 (b), 3125 (a)(7), respectively. 4Appellant timely filed his statement of errors complained of on appeal on November 30, 2018. The trial court entered its opinion on December 13, 2018.

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to withdraw.5 On April 11, 2019, the Commonwealth sent a letter to this Court

stating that it did not intend to file a responsive brief.

“When presented with an Anders brief, this Court may not review the

merits of the underlying issues without first passing on the request to

withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.

2010) (internal citation omitted). An Anders brief shall comply with the

requirements set forth by the Supreme Court of Pennsylvania in

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009):

[W]e hold that in 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 statutes on point that have led to the conclusion that the appeal is frivolous.

Counsel seeking to withdraw on direct appeal must meet the following

obligations to his or her client:

5 In his letter to Appellant, counsel incorrectly stated “[y]ou do have the right to proceed pro se (representing yourself) or you may hire counsel of your own choosing should the Court decide to grant my Motion to Withdraw in your case.” (emphasis added). Our Court filed an Order on June 19, 2019, directing counsel to send a corrected letter to Appellant, informing him that he has the immediate right to proceed pro se or hire counsel to bring any additional points to this Court’s attention. See Commonwealth v. Muzzy, 141 A.3d 509 (Pa. Super. 2016). On June 24, 2019, counsel complied with the Order. In the Order, this Court gave Appellant until July 22, 2019 to file a response to counsel’s Anders brief. In light of the disposition, we vacate that July 22, 2019 due date.

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Counsel must also provide a copy of the Anders brief to his client. Attending the brief must be a letter that advises the client of his right to: (1) retain new counsel to pursue the appeal; (2) proceed pro se on appeal; or (3) raise any points that the appellant deems worthy of the court’s attention in the Anders brief.

Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (internal

quotation marks, citation, and brackets omitted). If counsel has satisfied the

above requirements, it is then this Court’s duty to conduct its own review of

the trial court’s proceedings and render an independent judgment as to

whether the appeal is wholly frivolous. Commonwealth v. Yorgey, 188 A.3d

1190, 1196 (Pa. Super. 2018) (en banc); Commonwealth v. Dempster, 187

A.3d 266, 271 (Pa. Super. 2018) (en banc).

In this appeal, we observe that appellate counsel’s March 12, 2019

correspondence to Appellant provided a copy of the Anders Brief to Appellant.

The revised letter to Appellant, dated June 19, 2019, advised Appellant of his

right to proceed pro se or to retain new counsel to raise any points he deems

worthy of the Court’s attention. Further, appellate counsel’s Anders Brief, at

6-7, complies with prevailing law in that counsel has provided a procedural

and factual summary of the case with references to the record. Appellant’s

counsel believes there is nothing in the record that arguably supports the

appeal. Anders brief at 16, 19. Ultimately, appellate counsel cites his

reasons and conclusion that Appellant’s “case presents no non-frivolous issues

for review.” Id. Counsel’s Anders brief and procedures therefore comply

with the technical requirements of Santiago and Orellana. We therefore

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proceed to conduct an independent review to ascertain whether the appeal is

indeed wholly frivolous.

[P]art and parcel of Anders is our Court’s duty to review the record to insure no issues of arguable merit have been missed or misstated. . . . This view comports with the main purpose of Anders, which is to make sure that an appellant is provided with adequate counsel as required by the Sixth Amendment of the U.S. Constitution. Ultimately, our Court’s overriding task is to ensure that a criminal defendant’s loss of liberty is reviewed with the gravity to which it is entitled. . . .

In light of the constitutional rights at issue, we must give Anders a most generous reading and review “the case” as presented in the entire record with consideration first of issues raised by counsel. . . . [T]his review does not require this Court to act as counsel or otherwise advocate on behalf of a party. Rather, it requires us only to conduct a review of the record to ascertain if on its face, there are non-frivolous issues that counsel, intentionally or not, missed or misstated. We need not analyze those issues of arguable merit; just identify them, deny the motion to withdraw, and order counsel to analyze them.

Yorgey, 118 A.3d at 1196 (citations and quotations omitted).

In reviewing the entire record to ensure that there are no other non-

frivolous issues present, we have determined that the notes of testimony from

Appellant’s guilty plea proceedings are not part of the record.6 Without these

notes of testimony, counsel could not have fulfilled his duty to review the

entire record for any non-frivolous issues. Commonwealth v. Flowers, 113

6 There is no motion requesting transcripts for the guilty plea hearing in the certified record. This Court confirmed with Crawford County that no transcripts for the guilty plea were requested and, therefore, none were prepared.

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A.3d 1246, 1249 (Pa. Super. 2015) (motion to withdraw denied where counsel

who filed Anders brief did not make guilty plea transcripts a part of the

certified record, 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) (motion to withdraw denied “[g]iven that this

represents a direct appeal, and that counsel has filed an Anders brief, it would

be prudent, if not mandatory, for counsel to have ordered all the notes of

testimony. . . . [C]ounsel cannot fulfill the mandates of Anders unless he has

reviewed the entire record.”).

Counsel could not have assessed whether any non-frivolous issues exist

in connection with Appellant’s guilty plea proceeding without these notes of

testimony. We, therefore, conclude that counsel has not fulfilled his

obligations pursuant to Anders. Thus, we deny counsel’s petition to withdraw

and direct counsel to obtain the missing notes of testimony and to file an

advocate’s brief or another Anders brief and petition seeking to withdraw

following his review of a complete record within 30 days of the date of this

memorandum.7

Petition to withdraw denied. Anders brief stricken. Panel jurisdiction

retained.

7Appellant, if he chooses, may file a response if counsel submits a new Anders brief.

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