J-S05036-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    FREUD LABARRIERE,                          :
                                               :
                       Appellant               :      No. 1392 MDA 2019

         Appeal from the Judgment of Sentence Entered March 13, 2019
               in the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-36-CR-0004555-2018

BEFORE: SHOGAN, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                    FILED: MAY 13, 2020

        Freud Labarriere (“Labarriere”) appeals from the judgment of sentence

entered following his conviction for one count each of driving under the

influence (“DUI”)—general impairment (second offense), driving while

operating privilege is suspended, and careless driving, and two counts of

driving on roadways laned for traffic.1 Additionally, counsel for Labarriere,

David Romano, Esquire (“Attorney Romano”), has filed an Application for

Leave to Withdraw as counsel and a brief pursuant to California v. Anders,

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

2009).    We deny Attorney Romano’s Application for Leave to Withdraw as

counsel and remand for further proceedings.

        On June 9, 2018, Lancaster City Police Lieutenant Richard Heim (“Lt.

Heim”) was travelling northbound on Hershey Avenue in Lancaster City. N.T.,
____________________________________________


1   See 75 Pa.C.S.A. §§ 3802(a)(1), 1543(a), 3714(a), 3309(1).
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3/13/19, at 92.     While crossing over Wabank Road, Lt. Heim observed

Labarriere’s vehicle, travelling southbound on Hershey Avenue, cross over the

double-yellow center line. Id. Lt. Heim noted that no traffic or obstruction

forced the vehicle out if its lane. Id. After Labarriere’s vehicle passed, Lt.

Heim performed a U-turn and caught up to his vehicle. Id.       Lt. Heim then

followed the vehicle and noted that Labarriere’s vehicle continued to cross the

double-yellow line and began rapidly accelerating, going airborne at some

points.   Id. at 92-94.    Lt. Heim conducted a traffic stop and identified

Labarriere as the driver. Id. at 94. As Lt. Heim approached the vehicle, Lt.

Heim observed that Labarriere did not readily notice his presence.         Id.

Labarriere’s mannerisms and movements appeared to be sluggish. Id. Lt.

Heim, believing Labarriere was intoxicated, asked if Labarriere had anything

to drink that night.   Id. at 95.    Labarriere responded that he had one

beverage.   Id.   Lt. Heim, not trained in field sobriety tests, called Officer

Heather Schaeffer (“Officer Schaeffer”) to the scene due to her training and

experience with DUIs. Id.

      Officer Schaeffer arrived on scene and observed that Labarriere had

bloodshot and glassy eyes. Id. at 61. Officer Schaeffer also noticed an odor

of alcohol coming from the interior of the vehicle. Id. Labarriere was unable

to exit the vehicle without falling over and stumbling. Id. at 62-63. Officer

Schaeffer explained the field sobriety tests and Labarriere refused to perform

the tests. Id. at 64-65. Labarriere was placed under arrest and transported

to the police station. Id. at 65, 67. Officer Schaeffer read Labarriere the

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required DL-26 form, and Labarriere refused to submit to a breath test. Id.

at 67-69.2 Labarriere was subsequently charged with the above-mentioned

offenses. Id. at 70.

       A jury convicted Labarriere of DUI—general impairment on March 13,

2019. The trial court found Labarriere guilty of the remaining traffic offenses.

The trial court sentenced Labarierre to an aggregate term of 6 to 23 months

in the Lancaster County Prison, followed by 3 years of probation. Labarriere

timely filed a post-sentence Motion asking the trial court to reconsider his

sentence, which the trial court denied.          Labarriere filed a timely Notice of

Appeal.    Attorney Romano thereafter filed his Statement of intent to file

Anders brief in lieu of statement of errors complained of on appeal on

September 16, 2019.3          The trial court did not file a responsive opinion.

Attorney Romano subsequently filed, in this Court, an Application for Leave to

Withdraw from representation and a brief pursuant to Anders. Labarriere did

not file a pro se brief, nor did he retain alternate counsel for this appeal.

       We may not address the merits of the issues raised in the Anders Brief

without first addressing Attorney Romano’s Application for Leave to Withdraw.

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007).

       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
____________________________________________


2 The record does not indicate whether Labarriere was asked to consent to a
blood draw.

3 The trial court did not order Labarriere to file a Pa.R.A.P. 1925(b) concise
statement, nor did it file a Rule 1925(a) opinion.

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     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), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014). Prior

to withdrawing as counsel on a direct appeal under Anders, counsel must file

a brief that meets the requirements established by our Supreme Court in

Santiago. Id. The 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 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 caselaw, and/or statutes on point that
         have led to the conclusion that the appeal is frivolous.

Santiago, 978 A.2d at 361.

     After determining that counsel has satisfied the technical requirements

of Anders and Santiago, this Court must then “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) (en

banc).




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      Our review of Attorney Romano’s Application for Leave to Withdraw and

Anders Brief reveals that he has complied with all of the foregoing

requirements.     Attorney Romano indicated that he reviewed the record,

including relevant testimony, and determined that the appeal was wholly

frivolous.   Additionally, while the brief fails to cite caselaw or other legal

authority, we find that counsel’s brief substantially complies with Anders.

See Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007)

(stating that counsel’s brief stated the relevant facts and presented the case

neutrally to the court and, thus, substantially complied with Anders despite

a lack of caselaw citations). The record further reflects that Attorney Romano

furnished a copy of the Anders Brief to Labarriere, advised Labarriere of his

right to retain new counsel or proceed pro se, or raise any additional points

that he deems worthy of the Court’s attention. Additionally, Attorney Romano

attached a copy of the letter he sent to Labarriere to the Application for Leave

to Withdraw. Consequently, Attorney Romano has complied with all of the

requirements set forth above.

      Before addressing Attorney Romano’s claims, we observe that the

record reveals that there appears to be a non-frivolous issue that counsel

failed to raise on Labarriere’s behalf. See Dempster, supra. In its Amended

Information, the Commonwealth informed Labarriere that he would be subject

to a mandatory minimum sentence for his DUI—general impairment charge




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under 75 Pa.C.S.A. § 3804(c)(2).4              However, the DL-26 form informed

Labarriere of the consequences of his refusal to submit to a breath test only

in terms of the civil penalties, and did not inform him of the potential for an

enhanced mandatory minimum sentence.5 We therefore conclude that there

is a potentially non-frivolous issue not raised by Attorney Romano: Whether

Labarriere knowingly refused breath testing, where the record does not reflect

whether he was informed of the enhanced criminal penalties.
____________________________________________


4   The language of 75 Pa.C.S.A. § 3804(c)(2) is as follows:

      An individual who violates section 3802(a)(1) and refused testing of
breath under section 1547 (relating to chemical testing to determine amount
of alcohol or controlled substances) … shall be sentenced as follows:

        …

        (2) For a second offense, to:

              (i)    undergo imprisonment of not less than 90 days;

              (ii)   pay a fine of not less than $1,500;

              (iii) attend an alcohol highway safety school approved by
              the department; and

              (iv) comply with all drug and alcohol treatment
              requirements imposed under sections 3814 and 3815.

75 Pa.C.S.A. § 3804(c)(2). See also 75 Pa.C.S.A. § 1547(b)(2)(ii) (providing
that “if the person refuses to submit to chemical breath testing, upon
conviction or plea for violating section 3802(a)(1), the person will be subject
to the penalties provided in section 3804(c) (relating to penalties).”).

5 The Notes of Testimony indicate that the DL-26 form was entered as
Commonwealth Exhibit 1; however, that exhibit is missing from the record on
appeal and is not before us. Officer Schaeffer did read the form on the record.
See N.T., 3/13/19, at 68-69.

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      By no means is this Court convinced that Labarriere is entitled to relief

on the issue we have identified, nor do we venture to state what relief is due.

However, the claim is not so obviously devoid of merit so as to warrant

classifying this appeal as frivolous. See Commonwealth v. Tukhi, 149 A.3d

881, 890 (Pa. Super. 2016).         Therefore, we deny Attorney Romano’s

Application for Leave to Withdraw. Additionally, because Attorney Romano

filed a Statement of intent to file Anders brief in lieu of statement of errors

complained of on appeal, we remand for filing of a concise statement raising

this issue, in addition to any other potentially meritorious claims, and for the

trial court to file a Pa.R.A.P. 1925(a) opinion in response.      Labarriere is

directed to file an appellate brief within 30 days after the filing of the trial

court’s Pa.R.A.P. 1925(a) opinion. The Commonwealth may file a responsive

brief within 30 days thereafter.

      Application for Leave to Withdraw denied. Case remanded for further

proceedings consistent with this Memorandum.        Superior Court jurisdiction

retained.

      Judge Kunselman joins the memorandum.

      Judge Shogan files a concurring memorandum in which Judge

Kunselman joins.




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