Com. v. Shuman, T.

• Court: Superior Court of Pennsylvania
• Decided: February 22, 2018
• Docket: 962 MDA 2017
• Status: Unpublished

Opinion

J-S77004-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

TORY XAVIER SHUMAN,

Appellant No. 962 MDA 2017

Appeal from the Judgment of Sentence Entered April 12, 2017 In the Court of Common Pleas of Schuylkill County Criminal Division at No(s): CP-54-CR-0001569-2016

BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 22, 2018

Appellant, Tory Xavier Shuman, appeals from the judgment of

sentence of one to twelve months’ incarceration, imposed after he was

convicted by a jury of simple assault and recklessly endangering another

person. Appellant seeks to challenge the sufficiency of the evidence to

sustain both of these convictions. Additionally, Appellant’s counsel, Kent D.

Watkins, Esq., seeks to withdraw his representation of Appellant pursuant to

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

Santiago, 978 A.2d 349 (Pa. 2009). After careful review, we deny counsel’s

petition to withdraw, and remand for further action by Attorney Watkins.

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* Former Justice specially assigned to the Superior Court. J-S77004-17

The facts and procedural history of Appellant’s convictions are not

necessary to our disposition of his appeal at this time. We only note that

Appellant filed a timely notice of appeal from the imposition of his sentence

on April 12, 2017. On September 26, 2017, Attorney Watkins filed with this

Court an “Application to Withdraw As Counsel,” as well as a “no merit” letter

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). A

Turner/Finley no merit letter is the proper filing where counsel seeks to

withdraw on appeal from the denial of post-conviction relief. However,

where, as here, counsel seeks to withdraw on direct appeal, he or she must

comply with the more stringent dictates of Anders/Santiago. See

Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011).

Consequently, on October 4, 2017, this Court issued an order directing

Attorney Watkins to comply with Anders/Santiago by filing a brief referring

to any issues that might arguably support Appellant’s appeal.

On November 2, 2017, Attorney Watkins filed an Anders brief.

Therein, counsel asserted that Appellant seeks to raise the following

question for our review: “Did the Commonwealth of Pennsylvania present

sufficient evidence to prove [Appellant] guilty of both simple assault and

recklessly endangering another person?” Anders Brief at 4. According to

Attorney Watkins, this claim is frivolous, and counsel cannot identify any

other, non-frivolous issues to present on appeal.

Preliminarily,

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[t]his Court must first pass upon counsel's petition to withdraw before reviewing the merits of the underlying issues presented by [the appellant]. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc).

Prior to withdrawing as counsel on a direct appeal under Anders, counsel must file a brief that meets the requirements established by our Supreme Court in Santiago. The 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.

Santiago, 978 A.2d at 361. Counsel also must provide a copy of the Anders brief to his client. Attending the brief must be a letter that advises the client of his 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), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014).

After determining that counsel has satisfied the technical requirements of

Anders/Santiago, this Court must then “conduct 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) (citations and footnote omitted).

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Here, we are constrained to conclude that Attorney Watkins has failed

to satisfy the technical requirements for withdrawal. Specifically, while

counsel attached proof of service documents to both his application to

withdrawal and his Anders brief, those documents do not indicate service on

Appellant. Moreover, while counsel advised Appellant of his rights under

Nischan within the body of counsel’s original “no merit” letter, the proof of

service attached to that filing also did not list Appellant as an individual upon

whom service was made.1 In light of this record, it is unclear whether

Appellant has been provided with Attorney Watkins’ Anders brief, or

counsel’s petition to withdraw. We also cannot discern whether Appellant

has been informed of his rights under Nischan.

Therefore, we are compelled to deny Attorney Watkins’ petition to

withdraw. Within 21 days of the filing date of this memorandum, Attorney

Watkins shall file in this Court proof that he has served upon Appellant: (1) a

letter advising Appellant of his rights under Nischan, (2) counsel’s petition

to withdraw, and (3) counsel’s Anders brief. Appellant shall then have 30

days from the date on which Attorney Watkins files that proof of service in

this Court to file a response.

1We note that, to date, Appellant has not filed any response to Attorney Watkins’ petition to withdraw, “no merit” letter, or Anders brief.

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Petition to withdraw denied. Case remanded with instructions for

counsel. Jurisdiction retained.

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