Com. v. Roman, M.

• Court: Superior Court of Pennsylvania
• Decided: May 22, 2015
• Docket: 839 WDA 2014
• Status: Unpublished

Opinion

J-S22010-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

MICHAEL ROMAN

Appellant No. 839 WDA 2014

Appeal from the Judgment of Sentence April 17, 2014 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0000029-2014 CP-25-CR-0001311-2013 CP-25-CR-0001314-2013 CP-25-CR-0001317-2013 CP-25-CR-0001319-2014 CP-25-CR-0002074-2013 CP-25-CR-0002115-2013

BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER, J.*

JUDGMENT ORDER BY PANELLA, J. FILED MAY 22, 2015

Appellant, Michael Roman, appeals from the judgment of sentence

entered April 17, 2014, in the Court of Common Pleas of Erie County. We

are constrained to remand for the appointment of new counsel, with

instructions.

We note that although counsel herein, Jason A. Checque, Esquire,

seeks to withdraw from this appeal on the basis of frivolity, he has failed to

file a petition to withdraw as counsel, thus rendering his attempt to proceed

____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S22010-15

under Anders v. California, 386 U.S. 738 (1967), Commonwealth v.

McClendon, 434 A.2d 1185 (Pa. 1981), and their progeny deficient. By per

curiam Order entered December 18, 2014, this Court directed counsel to file

a petition to withdraw as counsel as follows:

AND NOW, upon review of the Brief for Appellant, filed on September 8, 2014, by Jason A. Checque, Esquire, it would appear that by inclusion within the Argument section of the brief of a "Part B -- Santiago Argument", at pages 11-12, in which counsel argues the sole issue raised is non-frivolous, counsel for appellant has attempted to file an Anders brief pursuant to Anders v. California, 386 U.S. 738 (1967), Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). However, counsel has failed to file a contemporaneous petition to withdraw as counsel as required. See Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007)(en banc; "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. Wrecks, 931 A.2d 717, 721 (Pa.Super.2007)(“Direct appeal counsel seeking to withdraw under Anders must file a petition averring that, after a conscientious examination of the record, counsel finds the appeal to be wholly frivolous."). Nor has counsel filed the required notice letter addressed to the appellant explaining appellant's rights under Anders and enclosing copies of the Anders brief and petition to withdraw as counsel. The notice letter is used by counsel to advise the appellant of the rights associated with the Anders process to this Court. See Commonwealth v. Woods, 939 A.2d 896, 900 (Pa.Super. 2007)(citing Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa.Super. 2005)). Accordingly, within fourteen (14) days of the date of this Order, counsel is directed to comply with the dictates of the Anders requirements and file a petition to withdraw as counsel with this Court, with an accompanying notice letter to appellant-Roman enclosing a copy of both the petition to withdraw as counsel and Anders brief, and explaining to appellant-Roman his rights in compliance the dictates of Anders and Woods.

Per Curiam Order, 12/18/14.

-2- J-S22010-15

As of the date of this writing, Attorney Checque has not responded to

this Court’s Order of December 18, nor filed a petition to withdraw with this

Court. Such inaction is simply unacceptable and we admonish Attorney

Checque’s quiescence. His unprofessional conduct has needlessly delayed

the resolution of this appeal.

Since we may not address the merits of the issues raised on appeal

without first reviewing the request to withdraw, see Commonwealth v.

Rojas, 874 A.2d 638, 639 (Pa. Super. 2005), we cannot decide this case on

the merits until an appropriate Anders brief is filed.

Accordingly, we direct the trial court “to revoke [counsel’s]

appointment and withhold any fees which would normally be paid for this

appeal and to appoint competent counsel to represent Appellant on appeal.”

Commonwealth v. McDaniels, 785 A.2d 120, 122 (Pa. Super. 2001). “If

[counsel] has received any fees for this appeal, he is directed to reimburse

the county forthwith the amount of said fees.” Id.

Once the trial court appoints new counsel, we direct our Prothonotary

to set a new briefing schedule. New counsel is directed to review the record

and file either an advocate’s brief or a petition to withdraw as counsel and

accompanying Anders brief setting forth case law and citations to the

sentencing record indicating that the issues are wholly frivolous.

Petition to withdraw denied. Case remanded with instructions. Panel

jurisdiction retained.

-3-