Com. v. Fontanez, E.

Superior Court of Pennsylvania

Com. v. Fontanez, E.

DecidedDecember 18, 2019

Docket2428 EDA 2018

StatusUnpublished

This text of Com. v. Fontanez, E. (Com. v. Fontanez, E.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Com. v. Fontanez, E., (Pa. Ct. App. 2019).

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Opinion

J-S63005-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : ERNESTO FONTANEZ : : Appellant : No. 2428 EDA 2018

Appeal from the Judgment of Sentence Entered June 18, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005937-2016

BEFORE: GANTMAN, P.J.E., MURRAY, J., and STRASSBURGER, J.*

MEMORANDUM BY GANTMAN, P.J.E.: FILED DECEMBER 18, 2019

Appellant, Ernesto Fontanez, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his bench

trial convictions for conspiracy, simple assault, possessing instruments of

crime (“PIC”), and theft by unlawful taking.1 For the following reasons, we

grant counsel’s petition to withdraw in favor of the appointment of new

counsel and remand with instructions.

The relevant facts and procedural history of this case are as follows. On

April 9, 2018, the court convicted Appellant of conspiracy, simple assault, PIC,

and theft by unlawful taking. Appellant’s convictions stem from an incident

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 903; 2701(a)(1); 907; 3921(a), respectively. J-S63005-19

on April 3, 2016, where Appellant and his cohorts strangled Victim, punched

her in the face, threatened her at gunpoint, and took her cell phone and

money. The court sentenced Appellant on June 18, 2018, to an aggregate

term of 11½ to 23 months’ imprisonment, plus 3 years’ probation. On July

18, 2018, Appellant filed a pro se notice of appeal2 but mistakenly filed it in

the Supreme Court. The Supreme Court transferred the appeal to this Court

on August 16, 2018. On August 20, 2018, the court ordered a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)

and served the Rule 1925(b) order on counsel of record. Counsel did not

respond to the court’s order. In its opinion, the trial court deemed any

appellate issues waived for failure to comply with the court’s Rule 1925(b)

order.

As a preliminary matter, appellate counsel seeks to withdraw his

representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.

1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Santiago, 602 Pa. 159,

978 A.2d 349 (2009). Anders and Santiago require counsel to: 1) petition

the Court for leave to withdraw, certifying that after a thorough review of the

2Appellant was still represented by trial counsel at the time. The record does not indicate if the clerk of courts forwarded the notice of appeal to counsel in compliance with Pa.R.Crim.P. 576(A)(4) (explaining that in any case in which defendant is represented by attorney, if defendant submits for filing any pro se document, clerk of courts shall accept it for filing, time stamp it with date of receipt, and forward copy of time stamped document to defendant’s counsel of record and attorney for Commonwealth).

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record, counsel has concluded the issues to be raised are wholly frivolous; 2)

file a brief referring to anything in the record that might arguably support the

appeal; and 3) furnish a copy of the brief to the appellant and advise him of

his right to obtain new counsel or file a pro se brief to raise any additional

points the appellant deems worthy of review. Santiago, supra at 173-79,

978 A.2d at 358-61.

In Santiago, supra, our Supreme Court addressed the briefing

requirements where court-appointed appellate counsel seeks to withdraw

representation:

Neither Anders nor McClendon3 requires that counsel’s brief provide an argument of any sort, let alone the type of argument that counsel develops in a merits brief. To repeat, what the brief must provide under Anders are references to anything in the record that might arguably support the appeal.

* * *

… In his brief in the case [here], counsel identified the claims that his client asked for inclusion in the brief and cited to testimony from the trial that arguably supported those claims. Counsel did not, however, advert to his own review of the record or flag anything in the record that he himself saw as having some chance of prevailing on appeal, but which he ultimately rejected as frivolous. Nor did counsel state that there were no such references for him to make. Without one or the other, we are not assured, as Anders requires, that counsel fully performed his duty as [the appellant’s] advocate to independently search the record as a trained advocate with an eye to uncovering appealable error, before concluding that [the appellant’s] appeal was frivolous. Under Anders, the right to counsel is vindicated ____________________________________________

3 Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).

-3- J-S63005-19

by counsel’s examination and assessment of the record and counsel’s references to anything in the record that arguably supports the appeal. The universe of potential claims is not limited to those claims and testimony that counsel’s unschooled client believes the court should consider. Therefore, we hold that the brief counsel presently submitted was insufficient.

Santiago, supra at 176-77, 978 A.2d at 359-60. Thus, the Court held:

[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 statutes on point that have led to the conclusion that the appeal is frivolous.

Id. at 178-79, 978 A.2d at 361. “Ultimately, then, Anders does not involve

a pointless formalism but, instead, a fruitful protocol, adherence to which not

only facilitates an appellant’s exercise of constitutional rights but also allows

counsel to prove to this Court the appellant has been afforded those rights.”

Commonwealth v. Woods, 939 A.2d 896, 899 (Pa.Super. 2007).

Instantly, counsel’s Anders brief is woefully deficient. At the outset,

counsel does not set forth any argument on Appellant’s behalf. In the one-

page “argument” section, counsel states he “will set forth the issue [A]ppellant

believes might have arguable merit but which counsel believes is frivolous and

discuss why counsel believes the issue is frivolous in accordance with

Santiago, supra.” (Anders Brief at 6). Yet, counsel does not identify or

discuss any issue. Counsel ends the “argument” paragraph by stating

-4- J-S63005-19

Appellant has not communicated to counsel any specific grounds for appeal.

Then, in the conclusion section of the brief, counsel suggests Appellant wanted

to challenge the denial of a suppression motion.4 (See id. at 6-7). The brief

is internally inconsistent in this regard. Even if Appellant did not articulate a

specific claim he wanted to pursue, counsel was still obligated to conduct an

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