Com. v. Gillmen, S.

• Court: Superior Court of Pennsylvania
• Decided: March 3, 2016
• Docket: 1253 WDA 2015
• Status: Unpublished

Opinion

J-S20031-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

SHANE MICHAEL GILLMEN,

Appellant No. 1253 WDA 2015

Appeal from the Judgment of Sentence July 1, 2015 in the Court of Common Pleas of Jefferson County Criminal Division at Nos.: CP-33-CR-0000008-2015 CP-33-CR-0000118-2015

BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED MARCH 3, 2016

Appellant, Shane Michael Gillmen, appeals from the judgment of

sentence entered on July 1, 2015, following revocation of his probation.

Because Appellant’s counsel failed to comply with the specific procedural

requirements of Anders and Santiago,1 or file a petition to withdraw, we

remand.

Appellant contends that he committed a relatively minor technical

violation of his probation, and therefore the court’s imposition of a sentence

of two and one-half to five years’ imprisonment was excessive. (See ____________________________________________

* Retired Senior Judge assigned to the Superior Court. 1 Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). J-S20031-16

Appellant’s brief, at 9-10). Our standard of review of a sentence following

revocation of probation is limited to determining whether the trial court

committed an error of law or an abuse of discretion. See Commonwealth

v. Colon, 102 A.3d 1033, 1041 (Pa. Super. 2014), appeal denied, 109 A.3d

678 (Pa. 2015). Here, in Appellant’s brief, counsel briefly discusses

Appellant’s claim, and concludes that “[A]ppellant’s averments do not rise to

the level of an abuse of discretion” and “the instant appeal is without merit

and wholly frivolous. . . . based on a thorough review of the record, file and

all matters associated with this case.” (Id. at 10; see id. at 9-10). Counsel

has not filed a petition to withdraw from representation.

Court-appointed counsel who seek to withdraw from representation

must file a brief that meets the requirements of Anders and Santiago, and

must petition the court for leave to withdraw.2 Commonwealth v. Lilley,

978 A.2d 995, 997 (Pa. Super. 2009). Otherwise, counsel must file an

advocate’s brief.

____________________________________________

2 Counsel must also provide a copy of the Anders brief and petition to withdraw to the appellant, together with a letter that advises the appellant of his or her 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.” Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007), appeal denied, 936 A.2d 40 (Pa. 2007) (citation omitted); see also Commonwealth v. Millisock, 873 A.2d 748, 751–52 (Pa. Super. 2005) (requiring counsel to attach to petition to withdraw copy of letter sent to client advising of his rights).

-2- J-S20031-16

We observe that counsel has failed to comply with these requirements,

and accordingly, we are compelled to remand. Counsel shall have thirty

days from the date of this Memorandum either to file a properly developed

merits brief or a petition to withdraw and any supplemental Anders brief in

compliance with Anders and Santiago. If counsel files a petition to

withdraw, Appellant may file with this Court his own brief pro se, or by newly

retained counsel, within forty-five days of the date current counsel files a

new Anders brief and petition. See Millisock, supra at 752. The

Commonwealth may respond to any brief filed on behalf of Appellant within

thirty days of the date Appellant files his brief.

Case remanded. Panel jurisdiction retained.

-3-