Commonwealth v. Goodwin

928 A.2d 287, 2007 Pa. Super. 180, 2007 Pa. Super. LEXIS 1620
CourtSuperior Court of Pennsylvania
DecidedJune 13, 2007
StatusPublished
Cited by756 cases

This text of 928 A.2d 287 (Commonwealth v. Goodwin) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Goodwin, 928 A.2d 287, 2007 Pa. Super. 180, 2007 Pa. Super. LEXIS 1620 (Pa. Ct. App. 2007).

Opinions

OPINION BY

BENDER, J.:

¶ 1 Avis Goodwin (Appellant) appeals from the judgment of sentence entered March 17, 2005, following his conviction at a bench trial of possession with intent to distribute heroin and knowing and intentional possession of marijuana for which he received a sentence of \lk to 3 years’ imprisonment followed by 3 years of supervised probation. Appellant’s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981), with a separate petition seeking to withdraw as counsel. For the reasons that follow, we affirm the judgment of sentence and grant counsel’s petition to withdraw.

¶2 After sentencing, Appellant filed a direct appeal to this Court and the Defender Association was appointed to represent him. On May 23, 2005, the trial court ordered Appellant to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P.1925(b). In re[289]*289sponse, a statement was filed by counsel providing that “[tjhere are no non-frivolous matters that can be raised on appeal.” See Statement of Matters Complained of on Appeal. Subsequently, the trial court issued an opinion indicating that in light of Appellant’s statement of matters complained of on appeal and according to Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998), and Commonwealth v. West, 868 A.2d 1267 (Pa.Super.2005), no issues were preserved for appeal. Therefore, the trial court suggested that Appellant’s judgment of sentence should be affirmed.

¶ 3 On November 1, 2005, this Court received a petition to withdraw and an Anders brief. Because the brief did not comport with Anders, this Court entered a per curiam order on November 18, 2005, denying the motion to withdraw and directing either: (1) the re-filing of the motion and an Anders brief that fully complied with the requirements for withdrawal or (2) the filing of an advocate’s brief. A revised petition to withdraw and an An-ders brief were filed on November 23, 2005.

¶4 On August 17, 2006, this Court issued a memorandum decision, determining that we were constrained to follow the dictates of Commonwealth v. Myers, 897 A.2d 493 (Pa.Super.2006), noting that the Myers panel refused to “consider the propriety of the Anders brief ... filed on [the ajppellant’s behalf,” Myers, 897 A.2d at 494, because the appellant’s attorney failed to abide by Pa.R.A.P.1925(b), i.e., the attorney filed a Rule 1925(b) statement that indicated there were no meritorious issues for review. Consequently, in our memorandum decision, we concluded that, because Appellant’s attorney failed to file a substantive Rule 1925(b) statement, his application to withdraw had to be denied. As in Myers, we further directed that on remand counsel was to file a “proper Pa. R.A.P.1925(b) statement” and that a supplemental opinion was to be filed by the trial court. We retained panel jurisdiction.

¶ 5 Then, on September 25, 2006, the Commonwealth filed an application requesting reargument en banc, asserting that Appellant’s counsel’s original Rule 1925(b) statement was proper in that he should not be required to raise issues he believes have no merit and that such a requirement compels him to violate his ethical duty to not raise frivolous claims. Appellant’s attorney joined in the Commonwealth’s application for en banc rear-gument, but in order to comply with this Court’s directive in the memorandum decision, counsel also filed a revised Rule 1925(b) statement raising a sufficiency issue. The trial court filed a supplemental opinion reiterating its belief that all issues were waived under Lord and that the procedure utilized by this Court in Myers and followed in the instant case essentially allows an appellant to file a supplemental appeal a year after filing the first appeal that waived all issues. The trial court further suggested that the proper procedure would be to affirm the judgment of sentence without prejudice to Appellant to raise any issues in a collateral proceeding pursuant to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.

¶ 6 This Court granted reargument on October 17, 2006, and both Appellant and the Commonwealth were directed to file briefs that discuss the impact of Myers and Commonwealth v. Flores, 909 A.2d 387 (Pa.Super.2006), in addition to any issues previously addressed. Both parties have filed substituted briefs in which they question whether counsel, who seeks to withdraw representation pursuant to An-ders, has filed an improper Rule 1925(b) statement, wherein the only statement made is that “there are no non-frivolous [290]*290matters that can be raised on appeal.” Appellant’s counsel additionally asserted that “[t]here were no non-frivolous sufficiency issues preserved for appeal.” Appellant’s counsel’s substituted brief at 11.

¶ 7 In the substituted briefs, the parties contend that in the Anders context a Rule 1925(b) statement is restricted to the issue of whether there are any claims of merit to be raised on appeal. Accordingly, they argue that Myers and Flores require the defendant’s counsel to raise issues that he or she believes are frivolous in contravention of the Rules of Professional Conduct, namely Rule 3.1 (“Meritorious Claims and Contentions”) and Rule 3.3 (“Candor Toward the Tribunal”).1 Moreover, the Commonwealth asserts that “[u]nder Anders and McClendon, there is no need to ‘preserve’ other issues in a 1925(b) statement, because if the appellate court determines that there are issues of merit it may remand to allow a new 1925(b) statement to be submitted.” Commonwealth’s brief at 5.

¶ 8 To begin our discussion and as noted above, appointed counsel seeks to withdraw his representation pursuant to An-ders and McClendon. When faced with a purported Anders brief, this Court may not review the merits of any possible underlying issues without first examining counsel’s request to withdraw. Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.Super.2005).

Court-appointed counsel who seek to withdraw from representing an appellant on direct appeal on the basis that the appeal is frivolous 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) file a brief referring to anything that arguably might support the appeal but which does not resemble a “no-merit” letter or amicus curiae brief; and (3) furnish a copy of the brief to the defendant and advise the defendant of his or her right to retain new counsel or raise any additional points that he or she deems worthy of the court’s attention.
Commonwealth v. Miller,

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Cite This Page — Counsel Stack

Bluebook (online)
928 A.2d 287, 2007 Pa. Super. 180, 2007 Pa. Super. LEXIS 1620, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-goodwin-pasuperct-2007.