Com. v. Truitt, J.

Opinion

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 19, 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 Daniel C. Bardo, Esq., filed an

application for leave to withdraw his appearance on September 24, 2020,

alleging that there are no non-frivolous issues for appeal, accompanied by an

Anders2 brief. After careful review, we deny Attorney Bardo’s application for

leave to withdraw and remand with instructions.

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

June 14, 2017, and was admitted into the Mental Health Treatment Court that

1 18 Pa.C.S.A. § 2702(a)(1).

2See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).

same day. (Notes of testimony, 6/14/17 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.) On March 28, 2018, the trial court

sentenced appellant to a term of three to six years’ imprisonment, with credit

for time served.

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”).3 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

then-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.

3 42 Pa.C.S.A. §§ 9541-9546.

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On March 19, 2020, Attorney Bardo appeared to file an Anders brief.

(See appellant’s brief, 3/19/20 at 13 (concluding that “any appellate issues

are frivolous”).) Attorney Bardo failed to file a contemporaneous petition to

withdraw as counsel and 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. See Commonwealth

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

Commonwealth v. Wrecks, 931 A.2d 717, 720 (Pa.Super. 2007);

Commonwealth v. Woods, 939 A.2d 896, 900 (Pa.Super. 2007), citing

Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa.Super. 2005).

We remanded this case on August 25, 2020 for appellant’s counsel to

either comply with the dictates of Anders and its progeny, or to file an

advocate’s brief on the merits. As noted above, Attorney Bardo filed an

application to withdraw his appearance, accompanied by an Anders brief on

September 24, 2020.

A request by appointed counsel to withdraw pursuant to Anders and Santiago gives rise to certain requirements and obligations, for both appointed counsel and this Court. Commonwealth v. Flowers, 113 A.3d 1246, 1247-1248 (Pa.Super. 2015).

These requirements and the significant protection they provide to an Anders appellant arise because a criminal defendant has a constitutional right to a direct appeal and to counsel on that appeal. [Woods, 939 A.2d at 898.] This court has summarized these requirements as follows:

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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. Counsel must also file an Anders brief setting forth issues that might arguably support the appeal along with any other issues necessary for the effective appellate presentation thereof.

Anders counsel must also provide a copy of the Anders petition and brief to the appellant, advising the appellant of the right to retain new counsel, proceed pro se or raise any additional points worthy of this Court’s attention.

Woods, 939 A.2d at 898 (citations omitted).

There are also requirements as to the precise content of an Anders brief:

[T]he Anders brief that accompanies court-appointed counsel’s petition to withdraw . . . 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

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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.

Id. at 1248. If this Court determines that appointed counsel has met these obligations, it is then our responsibility “to make a full examination of the proceedings and make an independent judgment to decide whether the appeal is in fact wholly frivolous.” Id. at 1248. In so doing, we review not only the issues identified by appointed counsel in the Anders brief, but examine all of the proceedings to “make certain that appointed counsel has not overlooked the existence of potentially non-frivolous issues.” Id.

Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).

Our review of Attorney Bardo’s application for leave to withdraw his

appearance, supporting documentation, and Anders brief reveals that he has

not complied with all of the foregoing requirements. We note that

Attorney Bardo has furnished a copy of the Anders brief to appellant, advised

him of his right to retain new counsel or proceed pro se, and attached to the

Anders application a copy of the letter sent to appellant as required under

Millisock, 873 A.2d at 752 (citation omitted). See Commonwealth v.

Daniels, 999 A.2d 590, 594 (Pa.Super. 2010) (footnote omitted) (“While the

Supreme Court in Santiago set forth the new requirements for an Anders

brief, which are quoted above, the holding did not abrogate the notice

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requirements set forth in Millisock that remain binding legal precedent.”).

Attorney Bardo’s letter, however, failed to advise appellant that he may raise

any additional points worthy of this court’s attention. See Woods, 939 A.2d

at 898.

We, therefore, remand and direct Attorney Bardo to send appellant a

letter, accompanied by the Anders brief, and his application for leave to

withdraw, that complies with the directives of Woods and Millisock.

Attorney Bardo shall comply with this directive within 30 days of the date of

this memorandum. Appellant may respond within 45 days of receipt of

Attorney Bardo’s Anders brief and accompanying letter.

Application for leave to withdraw as counsel denied. Case remanded.

Jurisdiction retained.