Com. v. Dixon, J.

Opinion

J-S20039-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOHN E. DIXON : : Appellant : No. 1222 MDA 2024

Appeal from the Judgment of Sentence Entered February 8, 2023 In the Court of Common Pleas of Susquehanna County Criminal Division at No(s): CP-58-CR-0000387-2020

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOHN DIXON : : Appellant : No. 1223 MDA 2024

Appeal from the Judgment of Sentence Entered February 8, 2023 In the Court of Common Pleas of Susquehanna County Criminal Division at No(s): CP-58-CR-0000171-2022

BEFORE: OLSON, J., LANE, J., and BENDER, P.J.E.

MEMORANDUM BY BENDER, P.J.E.: FILED: JUNE 26, 2025

Appellant, John Dixon, appeals nunc pro tunc from the aggregate

judgment of sentence of three to twelve years’ incarceration, imposed after

he pled guilty, in two separate cases, to driving under the influence of alcohol

(DUI), 75 Pa.C.S. § 3802(b), in case CP-58-CR-0000387-2020 (hereinafter

case “387-2020”), as well as homicide by vehicle, 75 Pa.C.S. § 3732(a), and

another count of DUI, in case CP-58-CR-0000171-2022 (hereinafter case J-S20039-25

“171-2022”). On appeal, Appellant seeks to challenge the validity of his guilty

pleas and the discretionary aspects of his sentence. Additionally, Appellant’s

counsel, Joseph G. McGraw, Esq., seeks to withdraw his representation of

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

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After careful review,

we deny counsel’s petition to withdraw and issue instructions.

The facts underlying Appellant’s convictions are not pertinent to our

instant disposition. Procedurally, Appellant pled guilty to DUI in case 387-

2020 on December 1, 2021. While he was awaiting sentencing, he obtained

new charges in case 171-2022. On January 4, 2023, Appellant pled guilty to

DUI and homicide by vehicle in that case. On February 8, 2023, Appellant

was sentenced in both cases to the aggregate term stated above. He did not

file any post-sentence motions, nor did he perfect a direct appeal.

On November 30, 2023, Appellant filed, in both cases, a pro se petition

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546,

alleging, inter alia, that his trial counsel was ineffective for not filing a direct

appeal on his behalf. Attorney McGraw was appointed to represent Appellant

and filed an amended petition. On July 24, 2024, the PCRA court issued an

order reinstating Appellant’s post-sentence motion and direct appeal rights

nunc pro tunc, and dismissing his remaining PCRA claims without prejudice to

his right to raise them in a new petition after his judgment of sentence

becomes final.

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On August 21, 2024, Attorney McGraw improperly filed a single notice

of appeal on Appellant’s behalf, listing the docket numbers of both of

Appellant’s two underlying cases. See Pa.R.A.P. 341, Note (“Where … one or

more orders resolves issues arising on more than one docket or relating to

more than one judgment, separate notices of appeal must be filed.”). This

Court subsequently ordered Appellant to file amended notices of appeal listing

only one docket number, and counsel complied. We thereafter consolidated

Appellant’s appeals sua sponte.

On August 23, 2024, the trial court issued an order directing Appellant

to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal. Attorney McGraw did not comply with this order, and filed no Rule

1925(b) statement on Appellant’s behalf. On September 20, 2024, the trial

court issued a Rule 1925(a) opinion concluding that Appellant had waived any

issue(s) for our review by not complying with the court’s Rule 1925(b) order.

See Trial Court Opinion, 9/20/24, at 3. However, the court went on to provide

a detailed discussion of the issues it foresaw Appellant raising on appeal,

namely, challenges to the validity of his guilty plea and the sentences imposed

by the court. See id. at 3-9.1 ____________________________________________

1 Given that (1) Attorney McGraw is seeking to withdraw, (2) the trial court

thoroughly addressed in its opinion the issues that Appellant desires to raise on appeal, and (3) the record before us is complete, including transcripts of the plea and sentencing hearings, we decline — in the interests of judicial economy — to remand for the filing of a Rule 1925(b) statement or Rule 1925(c)(3) statement of intent to withdraw. See Pa.R.A.P. 1925(c)(3) (“If an (Footnote Continued Next Page)

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On January 8, 2025, Attorney McGraw filed an Anders brief. Therein,

Attorney McGraw states that “[t]here is no colorable issue which supports an

appeal in this case” and “that any further proceedings on behalf of [Appellant]

would be wholy [sic] frivolous, and without arguable merit within the meaning

of Anders….” Anders Brief at 10. Counsel then briefly discusses the two

issues Appellant seeks to assert herein: a challenge to the validity of his guilty

plea, id. at 11, and a “complaint … with the sentence imposed[,]” id. at 12.

Attorney McGraw concludes that because these two issues are frivolous, we

should permit him to withdraw. See id. at 13.

Problematically, Attorney McGraw did not file a separate petition to

withdraw with this Court. It is well-settled that “[d]irect 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

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appellant represented by counsel in a criminal case was ordered to file and serve a Statement and either failed to do so, or untimely filed or served a Statement, such that the appellate court is convinced that counsel has been per se ineffective, and the trial court did not file an opinion, the appellate court may remand for appointment of new counsel, the filing or service of a Statement nunc pro tunc, and the preparation and filing of an opinion by the judge.”) (emphasis added); Commonwealth v. Stroud, 297 A.3d 1152, 1158 (Pa. Super. 2023) (finding that a remand of Stroud’s case was necessary, not because of his counsel’s failure to file a Rule 1925(b) statement or statement of intent to withdraw, but because the lack of a complete record prohibited this Court from conducting an independent review under Anders); Commonwealth v. Burton, 973 A.2d 428, 433 (Pa. Super. 2009) (concluding that where an untimely Rule 1925(b) statement has been filed, “this Court may decide the appeal on the merits if the trial court had adequate opportunity to prepare an opinion addressing the issues being raised on appeal”).

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frivolous.” Commonwealth v. Wrecks, 931 A.2d 717, 720 (Pa. Super. 2007)

(emphasis added) (citing Anders, 386 U.S. at 744). This is in addition to

the Anders brief filed by counsel. See id. (“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.”) (emphasis added) (citing Commonwealth v. Smith, 700 A.2d

1301, 1303 (Pa. Super. 1997)). Although Attorney McGraw attached to his

Anders brief a document entitled “Motion to Withdraw as Counsel,” that

document was not actually filed with this Court as a separate petition/motion

to withdraw. See Appellant’s Brief at Exhibit F.

Additionally, Attorney McGraw also attached to his brief a letter directed

to Appellant, in which counsel advised him that he is filing an Anders brief,

and notified Appellant of his “right to retain other counsel, or in the alternative

to file motions in response to [counsel’s] brief, setting for[th] any argument

[Appellant] wish[es] to make on appeal.” Id. at Exhibit G. See

Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007) (stating

that, in conjunction with the Anders brief, counsel must file 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 addition to the points raised by counsel in

the Anders brief”). However, the letter does not clearly indicate whether

Attorney McGraw actually provided Appellant with a copy of his Anders brief.

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

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(“Counsel also must provide a copy of the Anders brief to his client.”). The

proof of service attached to Attorney McGraw’s brief also does not indicate

that it was served on Appellant.

We also conclude that Attorney McGraw’s Anders brief is inadequate.

Namely, although counsel indicates that Appellant wishes to challenge “the

validity of his plea[,]” he does not discuss the substance of this claim at all,

instead simply noting that the trial court “found that … Appellant’s guilty plea

was knowing, voluntary and intelligent[,]” with a general citation (without any

page numbers) to the trial court’s September 20, 2024 opinion. See Anders

Brief at 11. Attorney McGraw does not specifically discuss why he has

concluded that Appellant’s guilty plea was valid, nor does he cite any legal

authority to support this conclusion. See Santiago, 978 A.2d at 361

(directing that the Anders brief must “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”) (emphasis added). Attorney

McGraw also cites no legal authority to support his five-sentence discussion of

why Appellant’s desire to challenge the discretionary aspects of his sentence

is frivolous. See Anders Brief at 12.

Accordingly, we deny Attorney McGraw’s request to withdraw and issue

the following instructions. Within 30 days of the filing date of this

memorandum, counsel is directed to either file an advocate’s brief on

Appellant’s behalf, or a separate petition to withdraw and a new Anders brief

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that fully addresses Appellant’s claims and explains, with citations to legal

authority, why they are frivolous. Counsel must also attach to his Anders

brief a letter that advises Appellant of the rights enumerated in Nischan and

demonstrate to this Court he has provided this letter to Appellant, along with

copies of his petition to withdraw and new Anders brief.

Petition to withdraw denied. Panel jurisdiction retained.

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