Com. v. Erwin, A.

• Court: Superior Court of Pennsylvania
• Decided: April 22, 2019
• Docket: 2275 EDA 2018
• Status: Unpublished

Opinion

J-A10042-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : ANTONIO ERWIN : : Appellant : No. 2275 EDA 2018

Appeal from the Judgment of Sentence Entered July 3, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001972-2011

BEFORE: GANTMAN, P.J.E., LAZARUS, J., and OTT, J.

JUDGMENT ORDER BY GANTMAN, P.J.E.: FILED APRIL 22, 2019

Appellant, Antonio Erwin, appeals from the judgment of sentence

imposed following revocation of probation. As a prefatory matter, we observe

counsel has designated and filed an Anders1 brief on appeal. Pursuant to

Anders and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349

(2009), when counsel determines that after a conscientious review of the

record, there are no non-frivolous issues for review, and seeks to withdraw

from representation, counsel must petition the Court for leave to withdraw

and (1) provide in the accompanying brief a summary of the procedural history

and facts of the case, with citations to the record; (2) refer to anything in the

record that counsel believes might arguably support the appeal; (3) set forth

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1 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). J-A10042-19

counsel’s conclusion that the appeal is frivolous; and (4) state counsel’s

reasons for concluding the appeal is frivolous. Id. at 178-79, 978 A.2d at

361. Counsel must also furnish a copy of the brief to the appellant with a

cover letter advising the appellant that he has an immediate right to

obtain new (privately-retained) counsel or file a pro se brief to raise

any additional points the appellant deems worthy of review.

Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa.Super. 2010). Santiago

altered the prior requirements for a proper withdrawal under Anders, where

counsel is now required to provide the reasons for concluding the appeal is

frivolous. Id. Santiago did not, however, alter the notice requirements of

Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa.Super. 2005), which

remain binding precedent. Daniels, supra at 594. The practice of attaching

to the withdrawal petition a copy of counsel’s letter to Appellant ensures

proper notice to the appellant of the appellant’s rights and relieves this Court

of having to assume counsel’s rightful burden. Millisock, supra.

Instantly, counsel attached to his petition to withdraw a copy of the

cover letter counsel sent to Appellant, enclosing a copy of the Anders brief

counsel filed and advising Appellant of his right to proceed pro se or with newly

retained counsel. See id. (holding counsel must attach as exhibit to petition

to withdraw filed with this Court, copy of letter sent to client advising of client’s

rights). Counsel’s letter, however, is inadequate as it failed to provide clear

advice to Appellant that Appellant has the immediate right to proceed pro se

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or with privately retained counsel to raise any additional issues Appellant

deems worthy of review in this Court. Counsel’s letter is either vague or

incomplete in this regard.

Accordingly, we deny counsel’s petition to withdraw at this time and

direct counsel to file an amended petition to withdraw as counsel in this Court,

within ten days of the filing date of this judgment order, and attach to the

amended withdrawal petition a copy of the amended letter sent to Appellant,

fully advising Appellant of his immediate right, either pro se or with privately

retained counsel, to file a brief on any additional points Appellant deems

worthy of review. Counsel must also advise Appellant that he may respond,

within 45 days of counsel’s amended letter, to counsel’s Anders brief.

Petition to withdraw as counsel denied; case remanded temporarily with

instructions. Panel jurisdiction is retained.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/22/19

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