J-S12005-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF PENNSYLVANIA : PENNSYLVANIA : : v. : : : HARRY JAMES VANDERPOOL, JR. : : No. 1346 MDA 2017 Appellant :
Appeal from the Judgment of Sentence July 31, 2017 In the Court of Common Pleas of Bradford County Criminal Division at No(s): CP-08-CR-0000150-2017
COMMONWEALTH OF : IN THE SUPERIOR COURT OF PENNSYLVANIA : PENNSYLVANIA : : v. : : : HARRY JAMES VANDERPOOL, JR. : : No. 1347 MDA 2017 Appellant :
Appeal from the Judgment of Sentence July 31, 2017 In the Court of Common Pleas of Bradford County Criminal Division at No(s): CP-08-CR-0000131-2017
BEFORE: LAZARUS, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY LAZARUS, J.: FILED MAY 21, 2018
Harry James Vanderpool, Jr., appeals from the judgment of sentence,
entered in the Court of Common Pleas of Bradford County, after he pleaded
guilty to two counts of theft by unlawful taking and one count of defiant J-S12005-18
trespass.1 Preliminarily, counsel has filed a brief to withdraw as counsel,
purportedly under Anders v. California, 386 U.S. 738 (1967) and its
progeny.2 After review, we conclude that counsel has not complied with the
requirements of Anders and Commonwealth v. Santiago, 978 A.2d 349
(Pa. 2009), and thus, we deny counsel’s motion to withdraw and direct him to
file either an advocate’s brief or a new motion to withdraw together with a
compliant Anders brief.
On June 1, 2017, Vanderpool pleaded guilty to theft by unlawful taking
graded as a misdemeanor of the first degree at docket number CP-08-CR-
0000131-2017. On July 31, 2017, the trial court sentenced him to 12 to 36
months’ incarceration. The same day, Vanderpool pleaded guilty to an
additional charge of theft by unlawful taking and one count of defiant trespass
at docket number CP-08-CR-0000150-2017. The trial court sentenced
Vanderpool to an additional 12 to 36 months’ incarceration to run consecutive
to the sentence imposed at docket number 08-CR-0000131-2017.
Vanderpool flied a timely post-sentence motion for reconsideration of
sentence, which the trial court denied on August 11, 2017. On August 25,
2017, Vanderpool filed a timely notice of appeal. Both Vanderpool and the
trial court have complied with Pa.R.A.P. 1925.
____________________________________________
1 18 Pa.C.S.A. § 3901 and 18 Pa.C.S.A. § 3503(b), respectively.
2 Counsel filed an Anders brief, but did not file a corresponding motion to withdraw as counsel.
-2- J-S12005-18
On February 26, 2018, Vanderpool’s attorney, Richard A. Wilson,
Esquire, filed an Anders brief, in which he presented Vanderpool’s sole issue
for our review: “Was the sentence imposed . . . excessive in light of
[Vanderpool’s] circumstances, particularly with regard to [his] treatment and
rehabilitative needs?” Anders Brief, at 3.
“Before we begin [any] substantive analysis, we must first review
defense counsel’s Anders brief and motion to withdraw.” Commonwealth
v. Bennett, 124 A.3d 327, 330 (Pa. Super. 2015) (citation omitted).
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.
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.
Commonwealth v. Hankerson, 118 A.3d 415, 419-20 (Pa. Super. 2015)
(citations omitted). “The Anders brief aims to provide the appellate courts
with a means for making two determinations – whether appointed counsel has
fully supported his client’s appeal to the best of his ability and whether the
appeal is indeed so lacking in merit that counsel should be permitted to
withdraw.” Santiago, 978 A.2d at 355 (citation omitted). To obtain
permission to withdraw, counsel must file an Anders brief that meets the
requirements established by our Supreme Court in Santiago.
The procedural requirements for withdrawal require counsel to provide
the appellant with a copy of the Anders brief along with a letter that advises
-3- J-S12005-18
the appellant of his or her 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). Substantial compliance with these requirements is
sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa. Super.
2007).
Instantly, counsel has failed to comply with the basic procedural
mandates of Anders and Santiago. First, counsel has not filed a
corresponding motion to withdraw as counsel accompanying his Anders brief;
standing alone, this oversight is fatal to his petition for withdrawal. Second,
there is no indication in counsel’s Anders brief or in the record that he has
provided Vanderpool a copy of his Anders brief or a letter informing
Vanderpool of his appellate rights. Because counsel has not complied with
any of the procedural dictates of Anders and Santiago, we need not consider
whether his Anders brief meets the substantive requirements of Santiago.3
3 Under Santiago, an Anders 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 reasonably believes 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
-4- J-S12005-18
See Commonwealth v. Zeigler, 112 A.3d 656, 659-660 (Pa. Super. 2015).
In light of the foregoing, we remand with instructions to counsel to file within
30 days a compliant motion to withdraw together with an Anders brief, or an
advocate’s brief on behalf of Vanderpool. Our remand is without prejudice to
Vanderpool to file responses in the event Attorney Wilson files a new Anders
brief, and it shall be incumbent upon counsel to consider Vanderpool’s issues
prior to any subsequent fillings.
case law, and/or statuses on point that have led to the conclusion that the appeal is frivolous.
Santiago, 978 A.2d at 361.
Instantly, counsel’s Anders brief does not state that counsel made a “conscientious examination of the record.” See Commonwealth v. Woods, 939 A.2d 896, 899 (Pa. Super. 2007). Rather, counsel simply states that “[he] has determined [Vanderpool’s] appeal is frivolous[.]” Anders brief, at 11.
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J-S12005-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF PENNSYLVANIA : PENNSYLVANIA : : v. : : : HARRY JAMES VANDERPOOL, JR. : : No. 1346 MDA 2017 Appellant :
Appeal from the Judgment of Sentence July 31, 2017 In the Court of Common Pleas of Bradford County Criminal Division at No(s): CP-08-CR-0000150-2017
COMMONWEALTH OF : IN THE SUPERIOR COURT OF PENNSYLVANIA : PENNSYLVANIA : : v. : : : HARRY JAMES VANDERPOOL, JR. : : No. 1347 MDA 2017 Appellant :
Appeal from the Judgment of Sentence July 31, 2017 In the Court of Common Pleas of Bradford County Criminal Division at No(s): CP-08-CR-0000131-2017
BEFORE: LAZARUS, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY LAZARUS, J.: FILED MAY 21, 2018
Harry James Vanderpool, Jr., appeals from the judgment of sentence,
entered in the Court of Common Pleas of Bradford County, after he pleaded
guilty to two counts of theft by unlawful taking and one count of defiant J-S12005-18
trespass.1 Preliminarily, counsel has filed a brief to withdraw as counsel,
purportedly under Anders v. California, 386 U.S. 738 (1967) and its
progeny.2 After review, we conclude that counsel has not complied with the
requirements of Anders and Commonwealth v. Santiago, 978 A.2d 349
(Pa. 2009), and thus, we deny counsel’s motion to withdraw and direct him to
file either an advocate’s brief or a new motion to withdraw together with a
compliant Anders brief.
On June 1, 2017, Vanderpool pleaded guilty to theft by unlawful taking
graded as a misdemeanor of the first degree at docket number CP-08-CR-
0000131-2017. On July 31, 2017, the trial court sentenced him to 12 to 36
months’ incarceration. The same day, Vanderpool pleaded guilty to an
additional charge of theft by unlawful taking and one count of defiant trespass
at docket number CP-08-CR-0000150-2017. The trial court sentenced
Vanderpool to an additional 12 to 36 months’ incarceration to run consecutive
to the sentence imposed at docket number 08-CR-0000131-2017.
Vanderpool flied a timely post-sentence motion for reconsideration of
sentence, which the trial court denied on August 11, 2017. On August 25,
2017, Vanderpool filed a timely notice of appeal. Both Vanderpool and the
trial court have complied with Pa.R.A.P. 1925.
____________________________________________
1 18 Pa.C.S.A. § 3901 and 18 Pa.C.S.A. § 3503(b), respectively.
2 Counsel filed an Anders brief, but did not file a corresponding motion to withdraw as counsel.
-2- J-S12005-18
On February 26, 2018, Vanderpool’s attorney, Richard A. Wilson,
Esquire, filed an Anders brief, in which he presented Vanderpool’s sole issue
for our review: “Was the sentence imposed . . . excessive in light of
[Vanderpool’s] circumstances, particularly with regard to [his] treatment and
rehabilitative needs?” Anders Brief, at 3.
“Before we begin [any] substantive analysis, we must first review
defense counsel’s Anders brief and motion to withdraw.” Commonwealth
v. Bennett, 124 A.3d 327, 330 (Pa. Super. 2015) (citation omitted).
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.
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.
Commonwealth v. Hankerson, 118 A.3d 415, 419-20 (Pa. Super. 2015)
(citations omitted). “The Anders brief aims to provide the appellate courts
with a means for making two determinations – whether appointed counsel has
fully supported his client’s appeal to the best of his ability and whether the
appeal is indeed so lacking in merit that counsel should be permitted to
withdraw.” Santiago, 978 A.2d at 355 (citation omitted). To obtain
permission to withdraw, counsel must file an Anders brief that meets the
requirements established by our Supreme Court in Santiago.
The procedural requirements for withdrawal require counsel to provide
the appellant with a copy of the Anders brief along with a letter that advises
-3- J-S12005-18
the appellant of his or her 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). Substantial compliance with these requirements is
sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa. Super.
2007).
Instantly, counsel has failed to comply with the basic procedural
mandates of Anders and Santiago. First, counsel has not filed a
corresponding motion to withdraw as counsel accompanying his Anders brief;
standing alone, this oversight is fatal to his petition for withdrawal. Second,
there is no indication in counsel’s Anders brief or in the record that he has
provided Vanderpool a copy of his Anders brief or a letter informing
Vanderpool of his appellate rights. Because counsel has not complied with
any of the procedural dictates of Anders and Santiago, we need not consider
whether his Anders brief meets the substantive requirements of Santiago.3
3 Under Santiago, an Anders 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 reasonably believes 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
-4- J-S12005-18
See Commonwealth v. Zeigler, 112 A.3d 656, 659-660 (Pa. Super. 2015).
In light of the foregoing, we remand with instructions to counsel to file within
30 days a compliant motion to withdraw together with an Anders brief, or an
advocate’s brief on behalf of Vanderpool. Our remand is without prejudice to
Vanderpool to file responses in the event Attorney Wilson files a new Anders
brief, and it shall be incumbent upon counsel to consider Vanderpool’s issues
prior to any subsequent fillings.
case law, and/or statuses on point that have led to the conclusion that the appeal is frivolous.
Santiago, 978 A.2d at 361.
Instantly, counsel’s Anders brief does not state that counsel made a “conscientious examination of the record.” See Commonwealth v. Woods, 939 A.2d 896, 899 (Pa. Super. 2007). Rather, counsel simply states that “[he] has determined [Vanderpool’s] appeal is frivolous[.]” Anders brief, at 11. While it is not necessary that an Anders petitioner track the Anders language precisely, petitioner must, at a minimum, “substantially comply” with Anders. Wrecks, supra, at 1290. Here, as Santiago requires, there is no indication in counsel’s Anders brief that he reviewed the entire record before concluding that Vanderpool’s issue is frivolous.
Moreover, the incomplete nature of counsel’s Anders brief suggests that he has failed to comply with the dictates of Anders and Santiago and has skirted the formalities demanded by their technical requirements. Notably, counsel baldy states that because Vanderpool’s sentence is lawful, his claim must be frivolous. Cf. Commonwealth v. Mouzon, 812 A.2d 617 (Pa. 2002) (sentences within statutory limits could raise a substantial question as to whether sentences are excessive, and thus, statute governing sentencing appeals does not exclude excessive sentence claims based on sentences within statutory limits). Additionally, in a section of his Anders brief entitled “request for relief,” counsel states “[Vanderpool] therefore respectfully requests that the court reverse the lower court’s . . .” Anders brief, at 12. Assuming counsel intended to complete the foregoing conclusory sentence, we invite him on remand to specify what relief Vanderpool requests.
-5- J-S12005-18
Petition to withdraw denied. Case Remanded with instructions.
Jurisdiction Retained.
-6-