Com. v. Hicks-Franklin, K.

• Court: Superior Court of Pennsylvania
• Decided: June 20, 2023
• Docket: 829 WDA 2022
• Status: Unpublished

Opinion

J-S09028-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KEVIN GERARD HICKS-FRANKLIN : : Appellant : No. 829 WDA 2022

Appeal from the Judgment of Sentence Entered April 19, 2021 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0001634-2019

BEFORE: BENDER, P.J.E., BOWES, J., and SULLIVAN, J.

MEMORANDUM BY BOWES, J.: FILED: June 20, 2023

Kevin Gerard Hicks-Franklin appeals from the judgment of sentence of

twenty to forty years of incarceration followed by one year of probation

following his conviction of third-degree murder and related charges. Counsel

has filed an application to withdraw and brief pursuant to Anders v.

California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009). We deny the petition to withdraw as counsel and direct

counsel to take remedial action within ten days of the filing of this

memorandum.

In light of our current disposition, we provide an abbreviated procedural

history. The underlying case concerns Appellant stabbing Starleisha Smith to

death in the presence of two other individuals. Following a trial, the jury

convicted Appellant of one count of third-degree murder, two counts of

aggravated assault, one count of possession of instruments of crime, two J-S09028-23

counts of recklessly endangering another person, and one count of terroristic

threats. On April 19, 2021, the trial court sentenced Appellant as indicated

above. Appellant filed post-sentence motions, which the trial court denied.

After having his appellate rights reinstated nunc pro tunc, this appeal followed.

Appellant and the trial court complied with Pa.R.A.P. 1925, and counsel has

filed both an Anders brief and a petition to withdraw. Counsel seeking to

withdraw pursuant to Anders must:

(1) petition the court for leave to withdraw stating that, after making a conscientious examination of the record, counsel has determined that the appeal would be frivolous; (2) furnish a copy of the brief to the appellant; and (3) advise the appellant that he or she has the right to retain private counsel or raise additional arguments that the appellant deems worthy of the court’s attention.

Commonwealth v. Redmond, 273 A.3d 1247, 1252 (Pa.Super. 2022)

(cleaned up). Our Supreme Court further detailed counsel’s duties as follows:

[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.

Santiago, supra at 361. “Substantial compliance with these requirements is

sufficient.” Commonwealth v. Prieto, 206 A.3d 529, 533 (Pa.Super. 2019)

(cleaned up). “If counsel does not fulfill the aforesaid technical requirements

of Anders, this Court will deny the petition to withdraw and remand the case

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with appropriate instructions[.]” Commonwealth v. Wrecks, 931 A.2d 717,

721 (Pa.Super. 2007) (cleaned up).

Here, the Anders brief does not contain a summary of the facts or

citations to the record. Moreover, there is a discrepancy in identifying the

issues Appellant seeks to raise. Compare Petition to Withdraw, 1/20/23, at

unnumbered 1 (identifying the issues as questioning the sufficiency and

weight of the evidence) with Anders brief at 3 (identifying a sentencing

issue). If those were the only deficiencies, we might deem counsel to have

substantially complied with the technical requirements. However, the proofs

of service for the Anders brief and petition to withdraw do not reflect that

counsel served a copy to Appellant.1 Since we are unable to ascertain whether

counsel furnished a copy of the required documents to Appellant,2 an essential

requirement for seeking withdrawal under Anders, we deny her petition to

withdraw. We direct counsel to rectify the inconsistency between the petition

to withdraw and the Anders brief. Counsel shall then send new copies of the

corrected Anders brief, petition to withdraw as counsel, and letter to

Appellant with amended certificates of service demonstrating proper service

on Appellant and to file a proof of service with this Court reflecting such ____________________________________________

1 Counsel’s certificates of service reflect service on the prothonotary and the district attorney’s office. The attached proofs of service reflect service only on the district attorney’s office.

2 While counsel purports to have provided Appellant a copy of her brief and petition to withdraw with the letter informing him of his rights, the letter itself lacks any proof or certificate of service. Moreover, counsel does not acknowledge any such service in the Anders brief or petition to withdraw.

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service. Counsel is ordered to complete these actions within ten days of our

filing of this memorandum. Appellant shall then have thirty days to respond.

Petition to withdraw as counsel denied. Panel jurisdiction retained.

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