Com. v. Bantum, B.

• Court: Superior Court of Pennsylvania
• Decided: January 8, 2020
• Docket: 1476 WDA 2017
• Status: Unpublished

Opinion

J-A30044-18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : BRIAN KURT BANTUM, : : Appellant : No. 1476 WDA 2017

Appeal from the Judgment of Sentence August 31, 2017 in the Court of Common Pleas of Blair County Criminal Division at No(s): CP-07-CR-0002204-2016

BEFORE: SHOGAN, J., KUNSELMAN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.: FILED JANUARY 8, 2020

Brian Kurt Bantum (Appellant) appeals from the August 31, 2017

judgment of sentence imposed after a jury convicted him of person not to

possess a firearm, theft by unlawful taking, receiving stolen property, and

disorderly conduct. Counsel for Appellant has filed a petition to withdraw

and brief pursuant to Anders v. California, 386 U.S. 738 (1967), and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we

deny counsel’s petition to withdraw.1

On October 4, 2019, this Court denied counsel’s prior petition to

withdraw. In the accompanying letter to Appellant, counsel conditioned

Appellant’s right to proceed pro se or with privately-retained counsel upon

1Given our disposition, we do not recount the full procedural history in this memorandum.

*Retired Senior Judge assigned to the Superior Court. J-A30044-18

this Court’s granting of counsel’s petition to withdraw. See Attorney

Zang’s Letter to Appellant, 9/9/2019, at 2 (unnumbered). This was error.

As soon as counsel files a petition to withdraw, an appellant has an

immediate and present right to proceed pro se or with privately-retained

counsel to raise any issues an appellant deems worthy of this Court’s review.

As such, this Court denied counsel’s petition, concluding that counsel “failed

to comply with the technical requirements [of Anders and its progeny] by

failing to provide clear advice to Appellant of his immediate right to proceed

pro se or with privately[-]retained counsel[.]” Commonwealth v. Bantum,

___ A.3d ___, 2019 WL 4899743 (Pa. Super. 2019) (unpublished

memorandum at 3-4) (emphasis added).

Although counsel’s October 21, 2019 letter to Appellant is more

detailed, it still erroneously conditions Appellant’s right to proceed pro se or

with privately-retained counsel upon this Court’s granting of counsel’s

petition to withdraw. See Attorney Zang’s Letter to Appellant, 10/21/2019,

at 2 (unnumbered) (notifying Appellant that “[i]f the Court grants my

petition, you have various rights that I am required to explain to you”).

Accordingly, we are constrained to deny again counsel’s petition to

withdraw. We direct Attorney Zang, within ten days of the filing of this

memorandum, to file either an advocate’s brief or a compliant Anders brief,

petition to withdraw, and accompanying letter, which fully advises Appellant

of Appellant’s present and immediate right to proceed in this appeal

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either pro se or with privately-retained counsel, and to file a brief with this

Court raising any issues Appellant deems worthy of review.2 See Santiago,

978 A.2d at 351; Commonwealth v. Dempster, 187 A.3d 266, 270 (Pa.

Super. 2018) (en banc) (citing Commonwealth v. Daniels, 999 A.2d 590,

594 (Pa. Super. 2010)) (“providing that counsel must inform client by letter

of rights to proceed once counsel moves to withdraw and append a copy of

the letter to the petition”).

Petition to withdraw denied. Panel jurisdiction retained.

2 We note also that while counsel only raised a potential sufficiency-of-the- evidence claim in his Anders brief, he erroneously conflated sufficiency of the evidence with weight of the evidence in his letter to Appellant.

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