Com. v. Williams, C.

Opinion

J-A07043-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CHAPPELL JOE WILLIAMS : : Appellant : No. 929 MDA 2020

Appeal from the Judgment of Sentence Entered June 26, 2020 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0001724-2019

BEFORE: BOWES, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED MAY 13, 2021

Appellant Chappell Joe Williams appeals from the judgment of sentence

entered by the Court of Common Pleas of Lancaster County after a jury

convicted Appellant of Persons not to Possess a Firearm (18 Pa.C.S.A. §

6105(a)(1)) and Appellant pled guilty to Firearms Not to Be Carried Without a

License (18 Pa.C.S.A. § 6106(a)(1)) and Receiving Stolen Property (18

Pa.C.S.A. § 3925(a)). Counsel filed a petition to withdraw his representation

and what purports to be a brief pursuant to Anders v. California, 386 U.S.

738, 87 S.Ct. 1396 (1967), and Commonwealth v. Santiago, 602 Pa. 159,

978 A.2d 349 (2009) (hereinafter “Anders brief”). After careful review, we

remand this case and direct counsel to take appropriate action consistent with

this memorandum.

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* Former Justice specially assigned to the Superior Court. J-A07043-21

The trial court summarized the relevant facts of the case as follows:

On February 25, 2019, Detective Nathan Nickel of the Lancaster City Bureau of Police saw [Appellant], who was known to the Detective, on the 500 block of East Chestnut Street, Lancaster City. Indeed, the Detective was en route to obtain a felony warrant for [Appellant] relating to a shooting investigation. After the Detective confirmed [Appellant] was Chappell Williams, the Detective directed [Appellant] to sit on the sidewalk. Immediately, [Appellant] ducked down behind a parked vehicle, appeared to discard something, and then stood back up. The Detective heard a metallic scraping sound coming from underneath the vehicle which coincided with [Appellant’s] movements. In response, Detective Nickel drew his gun and asked [Appellant] what he had discarded; [Appellant] replied that i[t] was a cell phone. The Detective recovered a fully loaded .9 millimeter handgun but no cell phone underneath the car. Within twenty seconds of stopping [Appellant], arresting officers arrived on the scene and handcuffed [Appellant]. A cell phone and a .9 millimeter Glock magazine were found on [Appellant’s] person.

Trial Court Opinion, 11/23/20, at 1-2.

After Appellant was arrested and charged with the aforementioned

offenses, Appellant expressed his intention to represent himself and waived

his right to counsel. Notes of Testimony (N.T.), 1/27/19, at 14-16. Appellant

filed an Omnibus Pre-Trial Motion for Relief which included a suppression

motion. On January 27, 2019, the trial court denied Appellant’s pre-trial

motions. Appellant proceeded to trial on the Persons not to Possess a Firearm

charge; Appellant represented himself with the assistance of standby counsel.

At the conclusion of the trial, the jury convicted Appellant of Persons Not to

Possess a Firearm.

After this conviction, Appellant requested counsel for the remaining two

charges on the relevant docket. On June 26, 2020, Appellant entered a

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counseled guilty plea to Firearms Not to Be Carried Without a License and

Receiving Stolen Property. On the same day, the trial court sentenced

Appellant to seven and one half (7½) years to fifteen (15) years’ incarceration.

Appellant filed a pro se post-sentence motion that he self-dated July 3,

2020. This motion was received by the trial court on July 8, 2020. Before the

trial court could respond to his post-sentence motion, on July 10, 2020,

Appellant filed a timely pro se notice of appeal.

On July 29, 2020, Appellant’s counsel, who also served as Appellant’s

standby counsel at trial, filed an application for leave to withdraw his

representation, indicating that Appellant had informed him that he wished to

proceed pro se with the appeal. On August 4, 2020, this Court directed the

trial court to conduct a Grazier hearing to determine whether Appellant

wished to proceed pro se or with the assistance of counsel.

On August 10, 2020, the trial court ordered Appellant to file a Concise

Statement of Errors on Appeal pursuant to Pa.R.A.P. 1925(b). Given the

pendency of the Grazier hearing, counsel filed a motion for an extension of

time to file the concise statement after the Grazier issue had been decided,

which the trial court granted. On August 28, 2020, Appellant submitted a pro

se concise statement, raising thirteen issues for review on appeal.

On September 15, 2020, after the Grazier hearing, the trial court

ordered counsel to remain as Appellant’s counsel, finding that Appellant did

not wish to proceed pro se but was “instead frustrated with his counsel

disagreeing with [Appellant] on legal strategy/tactics.” Order, 9/15/20, at 1.

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Thereafter, on October 21, 2020, counsel filed a timely concise

statement on Appellant’s behalf in which he quoted the issues that Appellant

had raised in his August 28, 2020 pro se concise statement. However, counsel

also indicated that there was no meritorious claim to raise on appeal and set

forth his intent to file an Anders brief.

Thereafter, counsel filed another petition to withdraw and a purported

Anders brief which listed the following issue for review in the Statement of

Questions Involved section: “[s]hould this Court permit counsel’s withdraw

[sic] when all issues are patently frivolous?” “Anders Brief”, at 4.

We must evaluate counsel's request to withdraw before reaching the

merits of the case. Commonwealth v. Washington, 63 A.3d 797, 800

(Pa.Super. 2013); see also Commonwealth v. Rojas, 874 A.2d 638, 639

(Pa.Super. 2005) (stating, “[w]hen faced with a purported Anders brief, this

Court may not review the merits of the underlying issues without first passing

on the request to withdraw”) (citation omitted).

There are procedural and briefing requirements imposed upon an

attorney who seeks to withdraw on appeal pursuant to which counsel must:

1) petition the court for leave to withdraw stating that, after making a conscientious examination of the record, counsel has determined that the appeal would be frivolous; 2) furnish a copy of the brief to the defendant; and 3) advise the defendant that he or she has the right to retain private counsel or raise additional arguments that the defendant deems worthy of the court's attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en

banc) (citation omitted). We further review counsel's Anders brief for

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compliance with the requirements set forth in Commonwealth v. Santiago,

602 Pa. 159, 978 A.2d 349 (2009):

[W]e hold that in the Anders brief that accompanies court- appointed counsel's petition to withdraw, counsel 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.

Id. at 178-79, 978 A.2d at 361.

The Supreme Court in Santiago clarified that Anders does not

“require[] that counsel's brief provide an argument of any sort, let alone the

type of argument that counsel develops in a merits brief. [W]hat the brief

must provide under Anders are references to anything in the record that

might arguably support the appeal.” Santiago, 978 A.2d at 359-360.

Likewise, this Court has held that “[a] brief pointing out the flaws in the

issues presented is not the proper form of an Anders brief, as this approach

operates to deny a defendant the assistance of counsel.” Commonwealth v.

Smith, 700 A.2d 1301, 1303 (Pa.Super. 1997). Instead,

[w]hile counsel need not raise issues if he believes there are none, he must set forth those issues that the defendant wishes to advance, as well as any other claims necessary to the effective appellate presentation of those issues. It is sufficient if counsel “flags” those issues, and includes relevant case citations and references to the record.

Id. at 1303–1304 (citation omitted).

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Moreover, counsel 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. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (quoting

Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007)).

In this case, counsel filed a purported Anders brief and attached his

application to withdraw as counsel on January 4, 2021. In his application to

withdraw, appellate counsel states he has made a conscientious examination

of the record and determined that there are no non-frivolous grounds for the

appeal. Attached to the application to withdraw is a letter counsel sent to

Appellant advising him of his right to proceed pro se or to retain new counsel.

In reviewing counsel’s brief in this case, counsel identifies the issues

Appellant wished to raise on appeal and asserts that after reviewing the

record, that he concludes the appeal is frivolous. While counsel acknowledges

the individual issues Appellant wished to raise on appeal, he also includes a

thorough analysis of the merits of each claim and essentially argues against

his own client. Counsel’s brief more closely resembles a brief that would be

filed by the Commonwealth in support of the trial court’s judgment of

sentence.1 ____________________________________________

1 Unsurprisingly, the Commonwealth notified this Court that it did not intend to file a brief to respond to counsel’s brief.

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Accordingly, we find that counsel’s brief does not comport with the

requirements of Santiago and Smith, but instead denies Appellant the right

of assistance of counsel on direct appeal. As such, we will not reach the merits

of Appellant’s issues, but instead remand for counsel to file an advocate’s brief

or an Anders-compliant brief consistent with this decision.

To the extent that counsel seeks to withdraw, we deny that request.

Counsel must file an advocate’s brief or an Anders-compliant brief within

thirty days of this decision. Jurisdiction retained.

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