J-S22012-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
ANTONIO ADAM HOWELL
Appellant No. 1454 MDA 2015
Appeal from the Judgment of Sentence July 22, 2015 In the Court of Common Pleas of Lebanon County Criminal Division at No(s): CP-38-CR-0001676-2014
BEFORE: MUNDY, J., DUBOW, J., and STRASSBURGER, J.*
MEMORANDUM BY MUNDY, J.: FILED MARCH 04, 2016
Appellant, Antonio Adam Howell, appeals from the July 22, 2015
aggregate judgment of sentence of 4 and 1/2 to 16 years’ imprisonment,
imposed by the trial court after Appellant entered a negotiated guilty plea to
21 criminal offenses, including two counts of simple assault, one count of
aggravated assault, seven counts of robbery, and eleven counts of
conspiracy.1 With this appeal, Appellant’s counsel has filed a petition to
withdraw and an Anders2 brief, stating that the appeal is wholly frivolous.
____________________________________________
* Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S.A. §§ 2701, 2702, 3701, and 903, respectively. 2 Anders v. California, 386 U.S. 738 (1967). J-S22012-16
After careful review, we are constrained to deny counsel’s petition to
withdraw and remand for further proceedings consistent with this Court’s
recent decision in Commonwealth v. Flowers, 113 A.3d 1246 (Pa. Super.
2015).
The trial court summarized the relevant factual and procedural history
of this case as follows.
On October 28, 2014, the Commonwealth charged [Appellant] with 22 counts, including two counts of Simple Assault, one count of Aggravated Assault, eight counts of Robbery and eleven counts of Conspiracy to commit the forgoing crimes. On April 29, 2015, the Commonwealth agreed to nolle pros one of the robbery charges, and [Appellant] entered a guilty plea to all of the remaining counts, as charged. On July 22, 2015, [the trial court] imposed a sentence on [Appellant]. In doing so, [the trial court] complied with the parties’ plea agreement calling for a minimum of 54 months in prison. ...
[The trial court] found that most of the counts merged, and only sentenced [Appellant] on Count 1, []; Count 2 []; Count 12 []; and Count 13[].
[The trial court] imposed identical sentences for Counts 1 and 12 of 54 months to 16 years in a state correctional facility. Likewise, the sentence on Counts 2 and 13 were identical—three to 12 years’ imprisonment. The sentences imposed on Counts 2, 12 and 13 were to be served concurrently with the sentence imposed on Count 1, for an aggregate sentence of 54 months to 16 years. [The trial court] ordered [Appellant] to pay the costs of prosecution and a fine of $400. [The trial court] also ordered [Appellant] to make restitution ... and pay $1,462.17 to the Crime Victims’ Compensation Fund.
On August 18th, [2015,] [Appellant’s] counsel filed a Notice of Appeal.
-2- J-S22012-16
Trial Court Opinion, 9/30/15, at 2-4 (footnotes omitted).
On August 24, 2015, the trial court entered an order directing
Appellant to file a concise statement of errors complained of on appeal
pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Appellant
complied on September 11, 2015. The record does not indicate that
Appellant filed a response to the Anders brief.
In the Anders brief, counsel has raised the following issues for review.
1. Was the sentence so manifestly excessive as to constitute too severe a punishment?
2. Was the sentence imposed manifestly excessive because undue weight was assigned to the gravity of the offenses despite the existence of certain mitigating factors such as [Appellant’s] age and education?
3. Was the sentence imposed unreasonably disproportionate to co-defendant’s sentence?
Anders Brief at 3.
“When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.
2010) (citation omitted). Additionally, an Anders brief shall comply with the
requirements set forth by our Supreme Court in Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
[W]e hold that in 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
-3- J-S22012-16
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 361.
Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.
2005), and its progeny, counsel seeking to withdraw on direct appeal must
also meet the following obligations to his or her client.
Counsel also must provide a copy of the Anders brief to his client. Attending the brief must be 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.
Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014)
(internal quotation marks and citation omitted). “Once counsel has satisfied
the above requirements, it is then this Court’s duty to conduct its own
review of the trial court’s proceedings and render an independent judgment
as to whether the appeal is, in fact, wholly frivolous.” Commonwealth v.
Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc), quoting
Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004). Further,
“this Court must conduct an independent review of the record to discern if
-4- J-S22012-16
there are any additional, non-frivolous issues overlooked by counsel.”
Flowers, supra at 1250 (footnote and citation omitted).
In this appeal, we conclude that counsel’s Anders brief complies with
the requirements of Santiago. First, counsel has provided a procedural and
factual summary of the case with references to the record. Second, counsel
advances relevant portions of the record that arguably support Appellant’s
claims on appeal. Third, counsel concluded, “after a thorough review of the
record and applicable law, undersigned appointed counsel for Appellant
believes this appeal would be wholly frivolous.” Anders Brief at 16. Lastly,
counsel has complied with the requirements set forth in Millisock. See
Letter from Counsel to Appellant, dated 11/24/15. As a result, we must
conduct an independent review to ascertain if the appeal is indeed wholly
frivolous.
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J-S22012-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
ANTONIO ADAM HOWELL
Appellant No. 1454 MDA 2015
Appeal from the Judgment of Sentence July 22, 2015 In the Court of Common Pleas of Lebanon County Criminal Division at No(s): CP-38-CR-0001676-2014
BEFORE: MUNDY, J., DUBOW, J., and STRASSBURGER, J.*
MEMORANDUM BY MUNDY, J.: FILED MARCH 04, 2016
Appellant, Antonio Adam Howell, appeals from the July 22, 2015
aggregate judgment of sentence of 4 and 1/2 to 16 years’ imprisonment,
imposed by the trial court after Appellant entered a negotiated guilty plea to
21 criminal offenses, including two counts of simple assault, one count of
aggravated assault, seven counts of robbery, and eleven counts of
conspiracy.1 With this appeal, Appellant’s counsel has filed a petition to
withdraw and an Anders2 brief, stating that the appeal is wholly frivolous.
____________________________________________
* Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S.A. §§ 2701, 2702, 3701, and 903, respectively. 2 Anders v. California, 386 U.S. 738 (1967). J-S22012-16
After careful review, we are constrained to deny counsel’s petition to
withdraw and remand for further proceedings consistent with this Court’s
recent decision in Commonwealth v. Flowers, 113 A.3d 1246 (Pa. Super.
2015).
The trial court summarized the relevant factual and procedural history
of this case as follows.
On October 28, 2014, the Commonwealth charged [Appellant] with 22 counts, including two counts of Simple Assault, one count of Aggravated Assault, eight counts of Robbery and eleven counts of Conspiracy to commit the forgoing crimes. On April 29, 2015, the Commonwealth agreed to nolle pros one of the robbery charges, and [Appellant] entered a guilty plea to all of the remaining counts, as charged. On July 22, 2015, [the trial court] imposed a sentence on [Appellant]. In doing so, [the trial court] complied with the parties’ plea agreement calling for a minimum of 54 months in prison. ...
[The trial court] found that most of the counts merged, and only sentenced [Appellant] on Count 1, []; Count 2 []; Count 12 []; and Count 13[].
[The trial court] imposed identical sentences for Counts 1 and 12 of 54 months to 16 years in a state correctional facility. Likewise, the sentence on Counts 2 and 13 were identical—three to 12 years’ imprisonment. The sentences imposed on Counts 2, 12 and 13 were to be served concurrently with the sentence imposed on Count 1, for an aggregate sentence of 54 months to 16 years. [The trial court] ordered [Appellant] to pay the costs of prosecution and a fine of $400. [The trial court] also ordered [Appellant] to make restitution ... and pay $1,462.17 to the Crime Victims’ Compensation Fund.
On August 18th, [2015,] [Appellant’s] counsel filed a Notice of Appeal.
-2- J-S22012-16
Trial Court Opinion, 9/30/15, at 2-4 (footnotes omitted).
On August 24, 2015, the trial court entered an order directing
Appellant to file a concise statement of errors complained of on appeal
pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Appellant
complied on September 11, 2015. The record does not indicate that
Appellant filed a response to the Anders brief.
In the Anders brief, counsel has raised the following issues for review.
1. Was the sentence so manifestly excessive as to constitute too severe a punishment?
2. Was the sentence imposed manifestly excessive because undue weight was assigned to the gravity of the offenses despite the existence of certain mitigating factors such as [Appellant’s] age and education?
3. Was the sentence imposed unreasonably disproportionate to co-defendant’s sentence?
Anders Brief at 3.
“When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.
2010) (citation omitted). Additionally, an Anders brief shall comply with the
requirements set forth by our Supreme Court in Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
[W]e hold that in 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
-3- J-S22012-16
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 361.
Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.
2005), and its progeny, counsel seeking to withdraw on direct appeal must
also meet the following obligations to his or her client.
Counsel also must provide a copy of the Anders brief to his client. Attending the brief must be 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.
Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014)
(internal quotation marks and citation omitted). “Once counsel has satisfied
the above requirements, it is then this Court’s duty to conduct its own
review of the trial court’s proceedings and render an independent judgment
as to whether the appeal is, in fact, wholly frivolous.” Commonwealth v.
Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc), quoting
Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004). Further,
“this Court must conduct an independent review of the record to discern if
-4- J-S22012-16
there are any additional, non-frivolous issues overlooked by counsel.”
Flowers, supra at 1250 (footnote and citation omitted).
In this appeal, we conclude that counsel’s Anders brief complies with
the requirements of Santiago. First, counsel has provided a procedural and
factual summary of the case with references to the record. Second, counsel
advances relevant portions of the record that arguably support Appellant’s
claims on appeal. Third, counsel concluded, “after a thorough review of the
record and applicable law, undersigned appointed counsel for Appellant
believes this appeal would be wholly frivolous.” Anders Brief at 16. Lastly,
counsel has complied with the requirements set forth in Millisock. See
Letter from Counsel to Appellant, dated 11/24/15. As a result, we must
conduct an independent review to ascertain if the appeal is indeed wholly
frivolous.
Instantly, as in Flowers, the notes of testimony are absent from the
certified record. The record is devoid of transcripts from the April 29, 2015
guilty plea proceeding and the July 22, 2015 sentencing hearing. 3 In
Flowers, we stated as follows.
[W]ithout these notes of testimony, counsel could not have assessed whether any non-frivolous issues exist in connection with Flowers’ guilty plea proceeding. We therefore cannot conclude that ____________________________________________
3 In the notice of appeal and motion to proceed in forma pauperis filed August 18, 2015, counsel copied “Michelle Brown, Court Stenographer,” but there is no indication that counsel otherwise requested the transcripts.
-5- J-S22012-16
Counsel has fulfilled his obligations pursuant to Anders. Thus, we deny counsel’s petition to withdraw and remand with instructions for counsel to obtain the missing notes of testimony and to file an advocate’s brief or another Anders brief and petition seeking to withdraw following his review of a complete record.
Flowers, supra at 1250-1251.
Based on the foregoing, we adhere to the precedent of Flowers and
deny counsel’s petition to withdraw, and remand the case for counsel to
obtain the missing notes of testimony from both the guilty plea and
sentencing proceedings, review the complete record, and to file an
advocate’s brief or Anders brief and petition to withdraw.
Petition denied. Case remanded. Panel jurisdiction retained.
-6-