Com. v. Martin, G.

• Court: Superior Court of Pennsylvania
• Decided: July 15, 2022
• Docket: 795 MDA 2021
• Status: Unpublished

Opinion

J-S01036-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : GERALD ROBERT MARTIN : : Appellant : No. 795 MDA 2021

Appeal from the Judgment of Sentence Entered May 24, 2021 In the Court of Common Pleas of Bradford County Criminal Division at No(s): CP-08-CR-0000362-2020

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : GERALD ROBERT MARTIN : : Appellant : No. 796 MDA 2021

Appeal from the Judgment of Sentence Entered May 24, 2021 In the Court of Common Pleas of Bradford County Criminal Division at No(s): CP-08-CR-0000214-2020

BEFORE: BOWES, J., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED: JULY 15, 2022

Gerald Robert Martin (Appellant) appeals from the judgments of

sentence of the Court of Common Pleas of Bradford County imposing

consecutive terms of fifteen to forty-eight months of imprisonment for

possession of a controlled substance with intent to deliver and one to twelve

months of imprisonment for possession of drug paraphernalia. His counsel, ____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S01036-22

John E. Thompson, Esquire, filed a brief pursuant to Anders v. California,

386 U.S. 738 (1967), averring that there are no non-frivolous claims that can

be raised on Appellant’s behalf. As we find counsel’s attempt to withdraw

from representation is deficient for the third time, and counsel has ignored

our prior orders directing him to comply with the procedures for withdrawing

under Anders, we must remand this case for additional proceedings below.

On October 25, 2021, Attorney Thompson filed the Anders brief for

these consolidated appeals. Attorney Thompson failed to file a

contemporaneous application to withdraw as counsel and failed to file the

required notice letter addressed to Appellant explaining Appellant’s rights

under Anders and enclosing copies of the Anders brief and the application to

withdraw as counsel. See Commonwealth v. Goodwin, 928 A.2d 287, 290

(Pa. Super. 2007) (en banc) (addressing to the process by which an attorney

may seek withdrawal from representation under Anders); Commonwealth

v. Wrecks, 931 A.2d 717, 720-721 (Pa. Super. 2007) (same);

Commonwealth v. Woods, 939 A.2d 896, 900 (Pa. Super. 2007) (holding

that an attorney’s failure to include his letter to Woods concerning his

withdrawal request under Anders in an application to withdraw as counsel

rendered his withdrawal request insufficient); Commonwealth v. Millisock,

873 A.2d 748, 752 (Pa. Super. 2005) (holding that an attorney seeking

withdrawal under Anders must attach as an exhibit to the application to

withdraw as counsel a copy of the letter sent to counsel’s client giving notice

of the client’s rights).

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On November 3, 2021, this Court issued a per curiam order notifying

Attorney Thompson that he did not file an application to withdraw as counsel

along with the Anders brief, nor did he attach a copy of a letter advising

Appellant of his rights to proceed pro se or proceed with a private attorney.

Order, 11/3/21, at 1. We directed counsel, within ten days, to file in this Court

a proper application to withdraw as counsel pursuant to Anders, to supply a

copy of the same to Appellant, to notify Appellant with a proper statement

advising Appellant of his rights as required by Millisock, and to file a copy of

the notification with this Court. Order, 11/3/21, at 1. No responsive filing

was made with this Court.

On November 18, 2021, we issued a second per curiam order reflecting

that Attorney Thompson had not complied with our prior order. Order,

11/18/21, at 1. We then directed counsel to comply with the prior order within

seven days. Id. Again, no responsive filing followed, and this case was then

placed on the instant submit panel.

Because counsel has ignored two orders from this Court and has not

taken any remedial actions in the past six months, we have no choice but to

remand this case to the trial court for a period of thirty days to hold a hearing

to determine whether Attorney Thompson has abandoned Appellant and to

take any further action as required to protect Appellant’s right to appeal.

Following the ordered hearing, the trial court shall notify this Court, in writing,

within the thirty-day period, of all findings and actions taken. We remind

counsel of his obligation to comply with the orders of this Court.

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Case remanded with instructions. Jurisdiction retained.

Judge Nichols Joins the memorandum.

Judge Bowes files a Dissenting Memorandum.

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