Com. v. King, D.

• Court: Superior Court of Pennsylvania
• Decided: September 19, 2023
• Docket: 1661 MDA 2022
• Status: Unpublished

Opinion

J-S19027-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DAQUAWN BASHIRI KING : : Appellant : No. 1661 MDA 2022

Appeal from the Judgment of Sentence Entered October 24, 2022 In the Court of Common Pleas of Schuylkill County Criminal Division at No(s): CP-54-CR-0001487-2020

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

MEMORANDUM BY McLAUGHLIN, J.: FILED SEPTEMBER 19, 2023

Daquawn Bashiri King appeals from the judgment of sentence entered

following his convictions for violations of The Controlled Substance, Drug,

Device and Cosmetic Act and his plea of nolo contendere to violations of The

Uniform Firearms Act. King’s counsel (“Counsel”) has submitted an Anders1

brief and attached to it the first page of a Motion to Withdraw. We find

Counsel’s attempt to withdraw to be defective, deny the Motion, and instruct

Counsel to cure the defects.

According to the affidavit of probable cause, a police officer on patrol

came across an incorrectly parked vehicle that was still running and had its

lights on. The officer saw that there was a silver handgun sitting in the center

console. King exited a nearby building and admitted that he had been driving

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1 Anders v. California, 386 U.S. 738 (1967). J-S19027-23

the vehicle but denied that the firearm belonged to him. King consented to a

search of the vehicle, during which the officer recovered several marijuana

cigarettes, two marijuana grinders, and two white wax baggies containing a

white powdery substance. See Affidavit, 7/3/20, at 1.

Following a trial, the jury found King guilty of possession of a controlled

substance (fentanyl) and possession of drug paraphernalia.2 The court found

King guilty of possession of a small amount of marijuana. 3 However, the jury

was deadlocked on two other charges: persons not to possess firearms, and

firearms not to be carried without a license.4 The court declared a mistrial on

the firearms charges. On the date of the rescheduled trial, King entered a plea

of nolo contendere to those charges. The court sentenced him to serve an

aggregate term of seven to 15 years’ incarceration. King did not file any post-

sentence motions but filed a notice of appeal.

In this Court, Counsel filed a brief pursuant to Anders, reviewing the

procedural history of the case, the merits of an appeal, and stating his belief

“that there are no valid grounds for appeal and that said appeal is wholly

frivolous.” Anders Br. at 10. In its conclusion, the brief states, “A letter sent

to [King], along with a copy of this brief and Motion to Withdraw, is attached

2 35 P.S. §§ 780-113(a)(16) and (a)(32), respectively.

3 35 P.S. § 780-113(a)(31)(i).

4 18 Pa.C.S.A. §§ 6105(a)(1) and 6106(a)(1), respectively.

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hereto, as Exhibit ‘B’ and Exhibit ‘C’ and is incorporated herein by reference

thereto.” Id. at 15.

Exhibit B to the brief includes the first page of a Motion to Withdraw,

which states as follows:

MOTION TO WITHDRAW AS COUNSEL

[Counsel,] Assistant Public Defender, hereby submits this Application for Leave to Withdraw as Counsel for the following reasons:

1. [Counsel] is an Assistant Public Defender for Schuylkill County and represents the Appellant on his appeal of judgement of sentence.

2. Upon review of the record, Counsel has determined there are no grounds for appeal.

3. In the event the Court grants this Petition of Counsel to withdraw, Appellant has the right to proceed pro se and/or with the assistance of privately retained counsel.

4. Pursuant to this determination, Counsel has sent a brief to the Court with a copy to the Appellant, advising that Counsel finds no merit to the appeal and that Appellant has the right to proceed pro se or with privately retained counsel.

Id. at Ex. B.5 There is no conclusion, signature, or certificate of service for the

motion. The final page of the brief is a cover page labeled “Exhibit ‘C’.” Id. at

Ex. C. However, no exhibit follows the cover page. Counsel has not filed any

application to withdraw separately from his brief. King has not filed any

response.

5 Exhibit B also includes a draft order granting the Motion, and a second copy

of the first page of the Motion.

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Before assessing the appeal on the merits, we must pass on counsel’s

request to withdraw. Commonwealth v. Goodwin, 928 A.2d 287, 290

(Pa.Super. 2007) (en banc). Counsel seeking to withdraw pursuant to Anders

must author a brief that

(1) provide[s] a summary of the procedural history and facts, with citations to the record; (2) refer[s] to anything in the record that counsel believes arguably supports the appeal; (3) set[s] forth counsel’s conclusion that the appeal is frivolous; and (4) state[s] 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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). In addition to

filing an Anders brief, counsel 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 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).

Counsel has not complied with the foregoing requirements. Although

Counsel filed an Anders brief, he only attached to it the first page of his

Motion to Withdraw, not the entire Motion. In addition, Counsel attached this

page as an exhibit to his brief, rather than filing an application in this Court.

Furthermore, although Counsel asserts that he sent King a letter

advising him of his rights and that he attached a copy of both the Motion to

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Withdraw and the Anders brief, Counsel has failed to provide this Court with

a copy of the letter or any documentation supporting his assertion that he sent

King a letter enclosing the relevant documents.

Moreover, and perhaps most importantly, without a copy of the letter,

we cannot confirm that Counsel adequately notified King of his immediate

right to proceed in this Court pro se or with privately retained counsel. This

defect is particularly troubling where, as here, this Court has not received any

response from King regarding the appeal. It seems unlikely that Counsel

correctly notified King of his rights, as Counsel’s Motion to Withdraw

erroneously states that King has the right to proceed pro se or with other

counsel only after this Court allows counsel to withdraw. See

Commonwealth v. Muzzy, 141 A.3d 509, 512 (Pa.Super. 2016) (explaining

that, unlike withdrawal of counsel before the trial court, an appellant has the

immediate right to proceed with an appeal pro se or with other private counsel

once appellate counsel moves to withdraw).

We therefore instruct Counsel, within 30 days of the filing of this

memorandum, to file an application to withdraw that conforms to the above

requirements. With his application, Counsel must provide documentation that

he has accurately advised King of his rights and that he has furnished King

with a copy of both the application to withdraw and the Anders brief.

Request to withdraw denied with instructions. Panel jurisdiction

retained.

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