Com. v. Perry, L.

• Court: Superior Court of Pennsylvania
• Decided: June 28, 2022
• Docket: 1359 WDA 2021
• Status: Unpublished

Opinion

J-S20004-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LORIN ALEXANDER PERRY : : Appellant : No. 1359 WDA 2021

Appeal from the Judgment of Sentence Entered August 24, 2021 In the Court of Common Pleas of Beaver County Criminal Division at No(s): CP-04-CR-0001406-2020, CP-04-CR-0001855-2020

BEFORE: NICHOLS, J., MURRAY, J., and KING, J.

MEMORANDUM BY NICHOLS, J.: FILED: JUNE 28, 2022

Appellant Lorin Alexander Perry appeals from the judgment of sentence

imposed after he pled nolo contendere to involuntary deviate sexual

intercourse (IDSI) and related offenses. Appellant’s counsel (Counsel) has

filed a petition to withdraw and an Anders/Santiago1 brief. Appellant has

also filed an application to discontinue the appeal with respect to Docket No.

1855-2020. For the reasons stated herein, we dismiss Appellant’s application

to discontinue the appeal as moot, deny Counsel’s petition to withdraw, and

direct Counsel to submit an amended Anders/Santiago brief or an advocate’s

brief on Appellant’s behalf.

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1Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). J-S20004-22

Briefly, at Docket No. 1406-2020, the Commonwealth charged Appellant

with five counts of indecent assault of a person less than thirteen years old,

three counts each of aggravated indecent assault without consent and

indecent assault without consent, two counts of aggravated indecent assault

of a person less than thirteen years old, and one count each of statutory sexual

assault, IDSI of a person less than sixteen years old, unlawful contact with a

minor, aggravated indecent assault of a person less than sixteen years old,

corruption of minors, endangering welfare of a child, and indecent assault of

a person less than sixteen years old.2 See Criminal Information, Docket No.

1406-2020, 10/5/20, at 1-3 (unpaginated). At Docket No. 1855-2020, the

Commonwealth charged Appellant with five counts of child pornography and

one count of criminal use of communications facility.3 See Criminal

Information, Docket No. 1855-2020, 12/29/20, at 1-2 (unpaginated).

On April 22, 2021, Appellant entered nolo contendere pleas to two

counts of aggravated indecent assault of a person less than thirteen old, and

one count each of IDSI of a person less than sixteen years old, aggravated

indecent assault of a person less than sixteen years old, and endangering

welfare of a child at Docket No. 1406-2020 and to all of the charges at Docket

No. 1855-2020. In exchange, the Commonwealth withdrew the remaining

218 Pa.C.S. §§ 3126(a)(7), 3125(a)(1), 3126(a)(1), 3125(a)(7), 3122.1(b), 3123(a)(7), 6318(a)(1), 3125(a)(8), 6301(a)(1)(ii), 4304(a), and 3126(a)(8), respectively.

3 18 Pa.C.S. §§ 6312(d) and 7512(a), respectively.

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charges at Docket No. 1406-2020. The trial court subsequently sentenced

Appellant to an aggregate term of thirteen to thirty years’ incarceration

followed by a term of nine years’ probation. Further, the trial court determined

that Appellant was a sexually violent predator (SVP). See 42 Pa.C.S. §

9799.24.

Appellant filed a timely post-sentence motion requesting to withdraw his

plea, which the trial court denied. Appellant filed a single, timely notice of

appeal that included both trial court docket numbers. The trial court did not

order Appellant to comply with Pa.R.A.P. 1925(b). The trial court issued a

Rule 1925(a) opinion addressing Appellant’s request to withdraw his plea, the

trial court’s jurisdiction, and both the legality and discretionary aspects of

Appellant’s sentence.4 See Trial Ct. Op., 11/15/21, at 5-14.

On January 3, 2022, this Court issued a rule to show cause why the

appeal should not be quashed pursuant to Commonwealth v. Walker, 185

A.3d 969 (Pa. 2018). Even though Appellant did not file a timely response,

this Court discharged the rule to show cause order and deferred the Walker

issue to the present panel. Order, 1/21/22. Appellant subsequently filed an

application to discontinue the appeal with respect to Docket No. 1855-2020

on January 24, 2022. This Court deferred Appellant’s application to

discontinue to the present panel. Order, 2/1/22.

4 The trial court also noted that any claims of ineffective assistance of counsel that Appellant might seek to raise should be deferred to PCRA review. Trial Ct. Op. at 14.

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Walker Issues

Before addressing Counsel’s Anders/Santiago brief, we must consider

whether this appeal is properly before this Court. In Walker, our Supreme

Court held that “prospectively, where a single order resolves issues arising on

more than one docket, separate notices of appeal must be filed for each case.”

Walker, 185 A.3d at 971. “The failure to do so,” the Court continued, “will

result in quashal of the appeal.” Id. at 977 (footnote omitted); see also

Pa.R.A.P. 341, Note. Subsequently, in Commonwealth v. Young, 265 A.3d

462 (Pa. 2021), our Supreme Court held that appellate courts have discretion

to remand an appeal to the trial court for the appellant to file amended notices

of appeal to cure a defect under Walker. Young, 265 A.3d at 475-78 (citing,

inter alia, Pa.R.A.P. 902; Commonwealth v. Williams, 106 A.3d 583, 586-

88 (Pa. 2014)).

Additionally, this Court has recognized that an appellant’s failure to file

separate notices of appeal may be excused where there was a breakdown in

the operations of the court. See, e.g., Commonwealth v. Larkin, 235 A.3d

350, 353-54 (Pa. Super. 2020) (en banc); Commonwealth v. Stansbury,

219 A.3d 157, 160 (Pa. Super. 2019). In Stansbury, the PCRA court advised

the appellant that he had thirty days “‘to file a written notice of appeal to the

Superior Court. Said notice of appeal must be filed with the Clerk of Courts

. . . .’” Stansbury, 219 A.3d at 159 (quoting trial court order, emphases in

original). The Stansbury Court concluded that the PCRA court’s failure to

advise the appellant of the need to file separate notices of appeal constituted

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“a breakdown in court operations such that we may overlook” any Walker

defect and declined to quash the appeal. Id. at 160; see also Larkin, 235

A.3d at 353-54 (declining to quash the appeal after concluding that a

breakdown in the court system occurred when the PCRA court’s order informed

the appellant he had thirty days to file “an appeal”).

Here, Appellant received a written “statement of rights following

sentence,” which informed Appellant that he could file “a notice of appeal”

within thirty days of the date of sentence or the court’s decision on any timely

post-sentence motions. Statement of Rights Following Sentence, 8/25/21, at

2 (unpaginated) (emphasis added). Counsel signed that statement on behalf

of Appellant and himself.5 Id. Further, the trial court’s order denying

Appellant’s post-sentence motion directed Counsel to “confer with [Appellant]

regarding any potential appeal in these cases within 10 days of today’s date.”

Trial Ct. Order, 10/12/21. Appellant timely filed a single notice of appeal

listing both docket numbers on November 1, 2021.

Considering Appellant’s actions in conjunction with the trial court’s

instructions to Appellant to file a single notice of appeal, we conclude that “a

breakdown in court operations [occurred] such that we may overlook” any

record deficiencies and decline to quash pursuant to Walker. See Larkin,

235 A.3d at 353-54; Stansbury, 219 A.3d at 160. Further, we decline

5 Appellant participated in his sentencing hearing via teleconference. N.T. Sentencing Hr’g, 8/24/21, at 2. Appellant stated that he agreed to counsel signing the statement of rights on his behalf. Id. at 89.

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remand this matter to the trial court for Appellant to file amended notices of

appeal. Cf. Young, 265 A.3d at 475-78 (holding that appellate courts have

discretion to remand an appeal to the trial court for the appellant to file

amended notices of appeal to cure a Walker defect). In light of our conclusion

that Appellant’s single notice of appeal does not run afoul of Walker and

Pa.R.A.P. 341, we deny Appellant’s application to discontinue the appeal with

respect to Docket No. 1855-2020 as moot.

Counsel’s Anders/Santiago Brief

In the Anders/Santiago brief, Counsel concludes that “[t]here is no

non-frivolous issue for appeal.” Anders/Santiago Brief at 3.

“When faced with a purported Anders brief, this Court may not review

the merits of any possible underlying issues without first examining counsel’s

request to withdraw.” Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa.

Super. 2008) (citation omitted). Counsel must comply with the technical

requirements for petitioning to withdraw by (1) filing a petition for leave to

withdraw stating that after making a conscientious examination of the record,

counsel has determined that the appeal would be frivolous; (2) providing a

copy of the brief to the appellant; and (3) advising the appellant that he has

the right to retain private counsel, proceed pro se, or raise additional

arguments that the appellant considers worthy of the court’s attention. See

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en

banc). In an Anders brief, counsel must set forth the issues that the

defendant wishes to raise and any other claims necessary to effectuate

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appellate presentation of those issues. Commonwealth v. Smith, 700 A.2d

1301, 1303 (Pa. Super. 1997). While counsel need not raise issues if he

believes there are none, he should “flag” those issues and include relevant

case citations and references to the record. Id. at 1304.

Additionally, counsel must file a brief that meets the requirements

established by the Pennsylvania Supreme Court in Santiago, namely:

(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.

Santiago, 978 A.2d at 361.

“Once counsel has satisfied the above requirements, it is then this

Court’s duty to conduct its own review of the trial court’s proceedings and

render an independent judgment as to whether the appeal is, in fact, wholly

frivolous.” Goodwin, 928 A.2d at 291 (citation omitted). This includes “an

independent review of the record to discern if there are any additional, non-

frivolous issues overlooked by counsel.” Commonwealth v. Flowers, 113

A.3d 1246, 1250 (Pa. Super. 2015) (citation and footnote omitted).

Here, Counsel filed a petition to withdraw indicating that he reviewed

the record and determined that an appeal is frivolous and without merit.

Counsel also filed a copy of the letter he sent to Appellant, which indicates

that Counsel sent Appellant a copy of the amended Anders/Santiago brief

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and advised Appellant that he may proceed pro se or retain private counsel to

raise any additional issues he believes should be brought to this Court’s

attention.6

However, Counsel has failed to identify the issues that Appellant wishes

to raise on appeal. See Smith, 700 A.2d at 1303-04. Further, Counsel has

failed to provide citations to controlling case law and/or statutes to support

his conclusion that this appeal is frivolous. See Santiago, 978 A.2d at 361.

Because Counsel did not address the merits of the claims Appellant seeks to

raise on appeal, we are unable to determine whether Appellant’s appeal is

wholly frivolous. Therefore, we must deny Counsel’s petition to withdraw.

See id. at 358 (stating that “only [complete frivolity] supports counsel’s

request to withdraw and a court’s order granting the request” (citation

omitted)).

Accordingly, we deny Counsel’s petition to withdraw and direct Counsel

to file either an amended Anders/Santiago brief that shall include a thorough

discussion of Appellant’s intended claim or an advocate’s brief within thirty

days. The Commonwealth shall have thirty days thereafter to file a response.

Application to discontinue dismissed as moot. Petition to withdraw

denied with instructions. Panel jurisdiction retained.

6 Appellant has not filed a response to Counsel’s petition to withdraw. However, prior to Counsel serving his petition to withdraw on Appellant, Appellant filed a letter arguing, inter alia, that his plea was not knowing. See Pro Se Correspondence, 3/17/22.

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