Com. v. Myers, C.

• Court: Superior Court of Pennsylvania
• Decided: August 27, 2019
• Docket: 573 EDA 2019
• Status: Unpublished

Opinion

J-S39009-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : CHRISTOPHER MYERS : : Appellant : No. 573 EDA 2019

Appeal from the Judgment of Sentence Entered November 21, 2017 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0000112-2017

BEFORE: GANTMAN, P.J.E., STABILE, J., and STEVENS*, P.J.E.

JUDGMENT ORDER BY GANTMAN, P.J.E.: FILED AUGUST 27, 2019

Appellant, Christopher Myers, appeals nunc pro tunc from the judgment

of sentence entered in the Chester County Court of Common Pleas, following

his negotiated guilty plea to three counts of burglary.1 As a prefatory matter,

we observe counsel has filed an Anders2 brief on appeal. Pursuant to Anders

and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 (2009), when

counsel determines that after a conscientious review of the record, there are

no non-frivolous issues for review, and seeks to withdraw from representation,

counsel must petition the Court for leave to withdraw and (1) provide in the

accompanying brief a summary of the procedural history and facts of the case,

____________________________________________

1 18 Pa.C.S.A. § 3502(a)(1).

2 Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). ____________________________________ * Former Justice specially assigned to the Superior Court. J-S39009-19

with citations to the record; (2) refer to anything in the record that counsel

believes might arguably support the appeal; (3) set forth counsel’s conclusion

that the appeal is frivolous; and (4) state counsel’s reasons for concluding the

appeal is frivolous. Id. at 178-79, 978 A.2d at 361. Counsel must also furnish

a copy of the brief to the appellant with a cover letter advising the

appellant that he has an immediate right to obtain new (privately-

retained) counsel or file a pro se brief to raise any additional points

the appellant deems worthy of review. Commonwealth v. Daniels, 999

A.2d 590 (Pa.Super. 2010). Santiago altered the prior requirements for a

proper withdrawal under Anders, where counsel is now required to provide

the reasons for concluding the appeal is frivolous. Id. Santiago did not,

however, alter the notice requirements of Commonwealth v. Millisock, 873

A.2d 748, 752 (Pa.Super. 2005), which remain binding precedent. Daniels,

supra at 594. The practice of attaching to the withdrawal petition a copy of

counsel’s letter to the appellant ensures proper notice to the appellant of his

rights and relieves this Court of having to assume counsel’s rightful burden.

Millisock, supra.

Instantly, counsel attached to her petition to withdraw a copy of the

Anders brief counsel filed and the cover letter counsel sent to Appellant,

purporting to advise Appellant of his rights. See id. (holding counsel must

attach, as exhibit to petition to withdraw filed with this Court, copy of letter

sent to client advising of client’s rights). Counsel’s letter, however, is

-2- J-S39009-19

inadequate as it appears to be a “template” letter, heavily redacted, and reads

in a hypothetical and generic manner about counsel’s actions and Appellant’s

rights. (See Letter to Appellant, attached as Exhibit 3 to Petition to Withdraw,

dated January 8, 2019, at 1-2) (stating: “I would write an Anders brief”; “I

would have to explain to the court…”) (emphasis added). Likewise, counsel

failed to provide clear advice to Appellant of his immediate right to proceed

pro se or with privately retained counsel to raise any additional issues

Appellant deems worthy of review in this Court. Counsel’s letter is either

vague or incomplete in this regard.

Accordingly, we deny counsel’s petition to withdraw at this time and

direct counsel to file an amended petition to withdraw as counsel in this Court,

within ten days of the filing date of this judgment order, and attach to the

amended withdrawal petition a proper copy of the amended, non-redacted

letter sent to Appellant, fully advising Appellant of his present (not

hypothetical) and immediate right, either pro se or with privately retained

counsel, to file a brief on any additional points Appellant deems worthy of

review. Counsel must also advise Appellant that he may respond, within 45

days of counsel’s amended letter, to counsel’s Anders brief.

Petition to withdraw as counsel denied; case remanded temporarily with

instructions. Panel jurisdiction is retained.

-3- J-S39009-19

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/27/19

-4-