Com. v. Truitt, J.

• Court: Superior Court of Pennsylvania
• Decided: August 25, 2020
• Docket: 1773 MDA 2019
• Status: Unpublished

Opinion

J. S31044/20

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : JAMES LEE TRUITT, : No. 1773 MDA 2019 : Appellant :

Appeal from the Judgment of Sentence Entered March 28, 2018, in the Court of Common Pleas of Lancaster County Criminal Division at No. CP-36-CR-0002601-2016

BEFORE: BOWES, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.

JUDGMENT ORDER BY FORD ELLIOTT, P.J.E.: FILED AUGUST 25, 2020

James Lee Truitt appeals from the March 28, 2018 judgment of sentence

entered by the Court of Common Pleas of Lancaster County following his

conviction of one count of aggravated assault.1 After careful review, we

remand with instructions.

Appellant entered a guilty plea to one count of aggravated assault on

June 13, 2017, and was admitted into the Mental Health Treatment Court that

same day. (Notes of testimony, 6/13/17 at 5-6, 20.) Appellant was ultimately

discharged from the treatment court for violating the terms of the program.

(Notes of testimony, 1/3/18 at 3.) The trial court sentenced appellant to a

1 18 Pa.C.S.A. § 2702(a)(1). J. S31044/20

term of three to six years’ imprisonment, with credit for time served on

March 28, 2018.

Appellant filed a timely post-sentence motion on April 5, 2018, which

the trial court denied on July 24, 2018. Appellant did not seek direct appellate

review of his judgment of sentence.

On March 21, 2019, appellant filed a timely pro se petition pursuant to

the Post Conviction Relief Act (“PCRA”).2 The PCRA court appointed counsel,

and counsel filed an amended PCRA petition on June 24, 2019. On

September 24, 2019, the PCRA court granted appellant’s PCRA petition and

reinstated his rights to file a direct appeal nunc pro tunc.

Appellant filed a timely notice of appeal on October 24, 2019. The trial

court subsequently ordered appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant’s counsel,

Randall L. Miller, Esq., filed a statement pursuant to Pa.R.A.P. 1925(c)(4),

wherein he indicated that he intended to request permission to withdraw, as

he determined that there were no non-frivolous issues to raise on appellant’s

behalf.

On March 19, 2020, Daniel C. Bardo, Esq., appeared to file an Anders

brief pursuant to Anders v. California, 386 U.S. 738 (1967), and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). (See appellant’s

brief at 13 (concluding that “any appellate issues are frivolous”).)

2 42 Pa.C.S.A. §§ 9541-9546.

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Attorney Bardo, however, 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) (citation omitted) (“When faced

with a purported Anders brief, this Court may not review merits of any

possible underlying issues without first examining counsel’s request to

withdraw.”); Commonwealth v. Wrecks, 931 A.2d 717, 720 (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.”). Appellant’s counsel has also failed

to file the required notice letter addressed to 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 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, we remand this case so that appellant’s counsel may either

comply with the dictates of Anders and its progeny or file an advocate’s brief

on the merits. Counsel shall have 30 days from entry of this judgment order

to comply. In the event counsel complies with the procedural mandates of

Anders, appellant may respond within 45 days of receipt of counsel’s Anders

brief and accompanying petition and letter. In the event counsel files an

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advocate’s brief on the merits, the Commonwealth shall have 30 days

thereafter to file a response.

Case remanded. Jurisdiction retained.

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