Com. v. Martin, G.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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

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

MEMORANDUM BY COLINS, J.: FILED OCTOBER 13, 2022

Appellant, Gerald Robert Martin, appeals from the judgments of

sentence imposed following his entry of a nolo contendere plea to possession

of a controlled substance with intent to deliver (methamphetamine, less than

two and one-half grams) and a guilty plea to possession of drug ____________________________________________

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

paraphernalia.1 Following an initial remand to ensure that Appellant’s counsel

properly sought to withdraw from his representation, we are tasked with

reviewing a petition to withdraw as counsel and an accompanying brief

pursuant to Anders v. California, 386 U.S. 738 (1967). We deny the petition

to withdraw as counsel and direct counsel to take remedial action within ten

days of the filing of this memorandum.

On or about August 29, 2018, the state police arranged through a

confidential informant to purchase a controlled substance from Appellant. N.T.

1/12/21, 9. The informant met with Appellant and another person named

Amanda Wilcox in Athens Township in Bradford County. Id. The informant

purchased less than two and one-half grams of methamphetamine from them.

Ms. Wilcox was the driver of a car at that location and Appellant was in the

front passenger seat. Id. Appellant conducted the conversation to arrange

the transaction and Ms. Wilcox was the one who completed the exchange with

the informant. Id. The methamphetamine sold to the informant weighed .79

grams. Id. After the police stopped a car transporting Appellant on March

29, 2020, they found Appellant in possession of a hypodermic needle. Id. at

8.

____________________________________________

1 35 P.S. § 780-113(a)(30), (32).

-2- J-S01036-22

On January 12, 2021, Appellant entered his pleas to the above-

referenced charges.2 N.T. 1/12/21, 1-10. The parties did not reach an

agreement on a sentencing recommendation but the Commonwealth agreed

to nolle prosse additional charges in exchange for the entry of the pleas.3 Id.

at 1-2; N.T. 5/24/21, 8. Sentencing was deferred for the preparation of a

pre-sentence investigation report. N.T. 1/12/21, 9.

On May 24, 2021, the court imposed an aggregate imprisonment term

of sixteen to sixty months, including consecutive prison terms of fifteen to

forty-eight months for possession of a controlled substance with intent to

deliver and one to twelve months for possession of drug paraphernalia.4 N.T.

2 The drug possession charge was docketed at CP-08-CR-0000214-2020 and the paraphernalia charge was docketed at CP-08-CR-0000362-2020. This Court consolidated these cases, sua sponte, pursuant to Pa.R.A.P. 513. See Order, 8/3/21 (per curiam).

3 The additional charges included two counts of criminal conspiracy (for delivery of methamphetamine and heroin), an additional count of possession of a controlled substance with intent to deliver (heroin), and single counts of criminal use of a communication facility and false identification to a law enforcement officer. Bills of Information, CP-08-CR-0000362-2020, 8/5/20, 1; Bills of Information, CP-08-CR-0000214-2020, 5/5/20, 1-2.

4 The Sentencing Guidelines recommended minimum imprisonment terms of fifteen to twenty-one months, plus or minus six months for aggravating or mitigating circumstances for possession of a controlled substance with intent to deliver, and restorative sanctions to four months, plus for aggravating circumstances. See 204 Pa. Code § 303.15 (7th ed., amend. 4 supp.; comprehensive offense listing) (providing offense gravity scores of six and one for possession of a controlled substance with intent to deliver and possession of drug paraphernalia); 204 Pa. Code § 30316(a) (7th ed., amend. 4; basic sentencing matrix); N.T. 5/24/21, 2 (noting the applicable guideline ranges and that Appellant had a prior record score of four).

-3- J-S01036-22

5/24/21, 6-9; Sentencing Order, CP-08-CR-0000214-2020, 5/24/21, 1;

Sentencing Order, CP-XX-XXXXXXX-2020, 5/24/21, 1. Appellant did not file

post-sentence motions and filed timely notices of appeals in each of the

underlying cases. Notice of Appeal, CP-08-CR-0000214-2020, 6/21/21;

Notice of Appeal, CP-08-CR-000362-2020, 6/21/21, 1.

Appellant’s counsel filed an Anders brief for these consolidated appeals

but failed to file a petition to withdraw as counsel along with a required notice

letter advising Appellant of his rights under Anders and enclosing copies of

the brief and the petition to withdraw as counsel. This Court issued two orders

directing counsel to file an application to withdraw as counsel along with proof

that Appellant had been properly advised of his rights. Order, 11/3/21, 1;

Order, 11/18/21, 1. After no responsive filings were made with this Court, we

remanded this case for the purposes of allowing the plea court to hold a

hearing to determine whether counsel had abandoned Appellant.

Commonwealth v. Martin, 2022 WL 2764211, *2 (Pa. Super., filed July 15,

2022) (unpublished memorandum). Appellant’s counsel subsequently filed a

petition to withdraw as counsel with this Court, and the plea court informed

this Court of its findings that counsel had not abandoned his client and had

filed the withdrawal motion to “cure the identified deficiencies” that were

addressed in our former memorandum. Order, CP-08-CR-0000214-2020 &

CP-08-CR-000362-2020, 8/8/22, ¶¶ 3-5; Application to Withdraw as Counsel,

7/29/22.

Counsel’s Anders brief identifies three issues:

-4- J-S01036-22

1. Whether the Appellant’s plea was knowing, voluntary[,] and intelligent.

2. Whether the sentence imposed was appropriate given the circumstances of this case.

3. Whether the Appellant’s sentence was legal and within Sentencing Guidelines for the Commonwealth of Pennsylvania.

Anders brief, at 3.

Prior to addressing the issues identified in Appellant’s brief, we must

first resolve counsel’s petition to withdraw. Commonwealth v. Goodwin,

928 A.2d 287, 290 (Pa. Super. 2007) (en banc). An attorney seeking to

withdraw on appeal pursuant to Anders must take the following actions:

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

banc) (citation omitted; emphasis added). Our Supreme Court has also stated

that a proper Anders brief 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.

-5- J-S01036-22

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Counsel also must

provide the appellant with a copy of the Anders brief, together with a letter

that advises the appellant of his or her 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. Nischan, 928

A.2d 349, 353 (Pa. Super. 2007) (citation omitted). “Substantial compliance

with the Anders requirements is sufficient.” Commonwealth v. Redmond,

273 A.3d 1247, 1252 (Pa. Super. 2022) (citation omitted).

Counsel filed an Anders brief and, following our former remand, a

petition to withdraw as counsel. The Anders brief substantially complies with

the requirements set forth in Santiago, although we note that the summary

of the procedural history and facts in the brief does not contain citations to

the certified record and the “Order in Question” section of the brief contains

nothing after a heading for that section. Anders brief, at v, 4-9. Copies of

Appellant’s Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal, that stated an intent to file the Anders brief, and the plea court’s Rule

1925(a) opinion are appended to the brief. Notably, the proof of service for

the brief does not reflect that counsel served Appellant with a copy of it.5

5On the date that the brief was filed, counsel filed two proofs of service. One was a form version generated by the Unified Judicial System of Pennsylvania’s Web Portal that reflected electronic mail service to attorneys Brian Patrick (Footnote Continued Next Page)

-6- J-S01036-22

In his petition to withdraw, counsel advises this Court that, after “a

conscientious examination of the record,” he communicated with Appellant

and “attempted to explain the absence of any arguable issue” to him. Petition

to Withdraw, 7/29/22, ¶¶ 2, 4. Counsel acknowledged that he furnished a

copy of the withdrawal petition to Appellant, along with a letter explaining

Appellant’s rights to “forward any additional argument or to retain new counsel

to represent him.” Id. at ¶ 5. In the letter to Appellant, counsel properly

informed Appellant of his rights to proceed pro se or with newly retained

counsel, acknowledged his filing of the Anders brief, and offered a short

explanation as to counsel’s reasons why some proposed claims for review

would not provide Appellant with a basis for relief. Correspondence to

Appellant, 7/28/22, attached to Petition to Withdraw, 7/29,22.

After previously delaying our review by twice ordering Appellant’s

counsel to file a petition to withdraw as counsel along with the Anders brief

and a required notice letter to Appellant and then remanding for proceedings

below when counsel failed to acknowledge or respond to our orders, this Court

would have liked to proceed with substantive review of the identified claims.

We are unable to do that because we unable to discern from the record that

counsel ever furnished a copy of the Anders brief to Appellant as required by ____________________________________________

Gallagher of the Bradford County Public Defenders’ Office and James Robert Nasatka of the Bradford County District Attorney’s Office. The other form appears to have been generated by counsel and reflected electronic and regular U.S. mail service to the plea court, the prothonotary for the Bradford County Court of Common Pleas, and the Bradford County District Attorney’s Office.

-7- J-S01036-22

Cartrette, 83 A.3d at 1032. The proofs of service that counsel filed at the

time that he filed the brief do not reflect service to Appellant. Counsel also

does not acknowledge his service of the brief to Appellant in either the brief,

his petition to withdraw, or the petition’s accompanying letter to Appellant.

Counsel’s failure to acknowledge whether he satisfied his requirement to

provide Appellant with a copy of the Anders brief is particularly frustrating as

this Court reminded counsel of his need to acknowledge his enclosure of a

copy of the brief along with his correspondence to his client in our former

memorandum. See Martin, 2022 WL 2764211 at *1 (“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) (emphasis added).

Given counsel’s failure to demonstrate his compliance with an essential

requirement for seeking withdrawal under Anders, we deny counsel’s petition

to withdraw. We direct counsel to send new copies of the Anders brief, the

petition to withdraw as counsel, and the letter to Appellant that was attached

to the petition to withdraw as counsel with amended certificates

demonstrating proper service on Appellant and the Commonwealth. We

further direct counsel to file a proof of service with this Court reflecting his

service of new copies of all three pertinent documents (the brief, the petition,

and the letter) to Appellant and the Commonwealth. We direct counsel to

take this action within ten days of our filing of this memorandum.

-8- J-S01036-22

Petition to withdraw as counsel denied. Panel jurisdiction retained.6

Judge Nichols joins the memorandum.

Judge Bowes files a dissenting memorandum.

6 We note that, as of the filing of this memorandum, Appellant has not filed any responsive pleadings as a pro se litigant and that there have been no filings reflecting the entry of an appearance for any privately retained counsel.

-9-