Com. v. Jorge, J.

• Court: Superior Court of Pennsylvania
• Decided: May 22, 2020
• Docket: 1573 MDA 2019
• Status: Unpublished

Opinion

J-S18042-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JEFFREY JORGE : : Appellant : No. 1573 MDA 2019

Appeal from the Judgment of Sentence Entered August 7, 2019 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0000742-2018

BEFORE: KUNSELMAN, J., KING, J., and STEVENS, P.J.E.*

JUDGMENT ORDER BY STEVENS, P.J.E.: FILED MAY 22, 2020

Appellant Jeffrey Jorge appeals the judgment of sentence entered by

the Court of Common Pleas of Luzerne County after Appellant pled guilty to

possession of a firearm with an altered manufacturer’s number and persons

not to possess a firearm. Counsel filed a petition to withdraw and a brief

pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967).

After Appellant pled guilty to the aforementioned offenses, the trial court

sentenced Appellant to two concurrent terms of four to eight years’

imprisonment and granted plea counsel’s oral motion to withdraw. On August

15, 2019, Appellant filed a pro se appeal in the Commonwealth Court, which

subsequently transferred the appeal to this Court. On September 13, 2019,

the trial court directed Appellant to file a concise statement of errors

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* Former Justice specially assigned to the Superior Court. J-S18042-20

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant did not

respond to the trial court’s Rule 1925(b) order.

On November 26, 2019, this Court filed an order directing the trial court

to determine the status of Appellant’s counsel of record. On December 20,

2019, the trial court held a hearing at which it determined Appellant was

eligible for counsel and appointed Matthew P. Kelly, Esq. (hereinafter

“counsel”) to represent Appellant. Counsel filed a petition to withdraw and an

Anders brief, after he concluded that this appeal was frivolous.

We must evaluate counsel's request to withdraw before reaching the

merits of the case. Commonwealth v. Washington, 63 A.3d 797, 800

(Pa.Super. 2013). Counsel who seeks to withdraw on appeal must satisfy the

following procedural and briefing requirements:

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 defendant; and 3) advise the defendant that he or she has the right to retain private counsel or raise additional arguments that the defendant deems worthy of the court's attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en

banc) (citation omitted). Counsel's Anders brief must also comply with

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

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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.

While counsel claims all of Appellant’s potential issues on appeal are

waived due to Appellant’s failure to file a post-sentence motion or to comply

with the trial court’s Rule 1925(b) order, it appears from the record that

Appellant had no legal representation after sentencing and during the period

in which he was required to preserve his post-sentence and appellate rights.

“[A]n accused has a constitutional right to counsel on direct appeal.”

Commonwealth v. Kent, 797 A.2d 978, 980 (Pa.Super. 2002) (citing

Douglas v. California, 372 U.S. 353 (1963)). Where an appellant is denied

counsel throughout the post-sentence and direct appeal period, it is necessary

for this Court to remand the case for the appointment of counsel and the

reinstatement of appellate rights nunc pro tunc to give the appellant counsel

at those stages of the proceeding. Commonwealth v. Corey, 31 A.3d 293,

295 (Pa. Super. 2011)).

Accordingly, we deny counsel's petition to withdraw, remand the case

and the record to the trial court, and direct the trial court to reinstate

Appellant’s post-sentence and appeal rights nunc pro tunc to give current

counsel an opportunity to file a post-sentence motion on Appellant’s behalf for

the trial court’s determination.

Petition to withdraw denied. Case and record remanded for proceedings

consistent with this decision. Jurisdiction relinquished.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 05/22/2020

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