Com. v. Wilson, B.

Superior Court of Pennsylvania

Com. v. Wilson, B.

DecidedSeptember 8, 2022

Docket1280 MDA 2021

StatusUnpublished

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Com. v. Wilson, B., (Pa. Ct. App. 2022).

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Opinion

J-S21029-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BRANDON DELANO WILSON : : Appellant : No. 1280 MDA 2021

Appeal from the Judgment of Sentence Entered September 30, 2021, in the Court of Common Pleas of Berks County, Criminal Division at No(s): CP-06-CR-0000554-2021.

BEFORE: DUBOW, J., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY KUNSELMAN, J.: FILED SEPTEMBER 08, 2022

Brandon Delano Wilson appeals from his judgment of sentence imposed

after he pled guilty to criminal trespass.1 Additionally, Wilson’s counsel filed

a petition to withdraw representation and an accompanying brief pursuant to

Anders v. California, 386 U.S. 738 (1967). Upon review, we grant counsel’s

petition and affirm the judgment of sentence.

On September 30, 2021, Wilson pled guilty to criminal trespass. The

trial court then sentenced Wilson to 9 to 23 months’ incarceration with credit

for time served, in accordance with his negotiated plea. No post-sentence

motion was filed.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. § 3503(a)(1)(ii). J-S21029-22

On October 4, 2021, Wilson timely filed a pro se notice of appeal, despite

being represented by counsel and without notifying counsel.2 On October 7,

2021, the trial court issued an order directing Wilson to file a Rule 1925(b)

statement but no concise statement was filed at that time.

Subsequently, we remanded this matter for the trial court to determine

whether counsel abandoned Wilson and for any other action necessary to

preserve Wilson’s appeal. Following a hearing on January 13, 2022, the trial

court determined that counsel did not willfully abandon Wilson and granted

counsel 21 days within which to file a Rule 1925(b) statement. Notably, this

order was not filed until January 27, 2022. In response, Wilson filed a pro se

Rule 1925(b) statement on February 8, 2022, again without notifying his

attorney.

Current counsel was assigned on March 2, 2022.

Unable to locate or contact Wilson and after review of Wilson’s case,

counsel filed a petition to withdraw from representation and an Anders brief

with this Court. Wilson did not retain independent counsel or file a pro se

response to the Anders brief. ____________________________________________

2 Generally, hybrid representation is not permitted in this Commonwealth; thus, this Court will not accept pro se filings while an appellant is still represented by counsel. Commonwealth v. Williams, 151 A.3d 621, 623 (Pa. Super. 2016). Nevertheless, the filing of a pro se notice of appeal while represented by counsel is distinguishable from other filings because a notice of appeal protects a constitutional right. Id. at 624. Accordingly, a pro se notice of appeal received from the trial court shall be docketed, even in instances where the pro se appellant was represented by counsel. Id.

-2- J-S21029-22

Before we may consider the issues raised in the Anders brief, we must

first consider counsel’s petition to withdraw from representation. See

Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super. 2010) (holding

that, when presented with an Anders brief, this Court may not review the

merits of the underlying issues without first passing on the request to

withdraw). Pursuant to Anders, when counsel believes an appeal is frivolous

and wishes to withdraw from representation, counsel must do the following:

(1) petition the court for leave to withdraw stating that after making a conscientious examination of the record, counsel has determined the appeal would be frivolous; (2) file a brief referring to any issues that might arguably support the appeal, but which does not resemble a no-merit letter; and (3) furnish a copy of the brief to the defendant and advise him of his right to retain new counsel, proceed pro se, or raise any additional points [counsel] deems worthy of this Court's attention.

Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006)

(citation omitted). In Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009), our Supreme Court addressed the second requirement of Anders, i.e.,

the contents of an Anders brief, and required that the brief:

(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.

-3- J-S21029-22

Santiago, 978 A.2d at 361. Once counsel has satisfied the Anders

requirements, it is then this Court’s responsibility “to conduct a simple review

of the record to ascertain if there appear on its face to be arguably meritorious

issues that counsel, intentionally or not, missed or misstated.”

Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018).

Here, counsel has complied with each of the requirements of Anders.

Counsel indicated that he reviewed the record and concluded that Wilson’s

appeal is frivolous. Further, the Anders brief substantially comports with the

requirements set forth by our Supreme Court in Santiago. Finally, the record

included a copy of the letter that counsel sent to Wilson stating counsel’s

intention to seek permission to withdraw and advising Wilson of his right to

proceed pro se or retain new counsel and file additional claims. Accordingly,

as counsel has complied with the procedural requirements for withdrawing

from representation, we will conduct an independent review to determine

whether Wilson’s appeal is wholly frivolous.

In the Anders brief, counsel sets forth one issue that Wilson arguably

could raise:

Did the [] court improperly accept an involuntary and unknowing guilty plea on [] Wilson's part?

Anders Brief at 5. Additionally, we observe, from Wilson’s pro se filings, that

he may have wished to challenge the legality of his sentence.

-4- J-S21029-22

Wilson first claims that his plea was not entered knowingly and

voluntarily, and therefore is not valid. Anders Brief at 10.

“Generally, upon entry of a guilty plea, a defendant waives all claims

and defenses other than those sounding in the jurisdiction of the court,

the validity of the plea, and what has been termed the “legality” of the

sentence imposed[.]” Commonwealth v. Jabbie, 200 A.3d 500, 505 (Pa.

Super. 2018). Additionally, “[a] defendant wishing to challenge the

voluntariness of a guilty plea on direct appeal must either object during the

plea colloquy or file a motion to withdraw the plea within ten days of

sentencing.” Commonwealth v.

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