J-S25023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                     v.

AMEEN MCNAIR

                           Appellant                  No. 1027 EDA 2016


          Appeal from the Judgment of Sentence February 2, 2016
           In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0006577-2009


BEFORE: BENDER, P.J.E., RANSOM, J., and FORD ELLIOTT, P.J.E.

JUDGMENT ORDER BY RANSOM, J.:                           FILED JULY 26, 2017

      Appellant, Ameen McNair, appeals from the judgment of sentence of

five to ten years of incarceration, consecutive to any other sentence he was

currently serving, imposed February 2, 2016, following a revocation of

probation hearing.        Additionally, Appellant’s counsel, Richard H. Maurer,

Esq., seeks to withdraw his representation of Appellant pursuant to Anders

v. California, 87 S. Ct. 1936 (1967), and Commonwealth v. Santiago,

978 A.2d 349 (Pa. 2009). As counsel’s Anders brief is deficient, we deny

his petition to withdraw and direct him to file either a proper Anders brief or

a brief on the merits.

      Pursuant to Anders and Santiago when, after a conscientious review

of the record, counsel determines that there exist no non-frivolous issues for

review, counsel must: 1) petition the Court for leave to withdraw, certifying
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that after a thorough review of the record, counsel has concluded the issues

to be raised are wholly frivolous; 2) file a brief referring to anything in the

record that might arguably support the appeal; and 3) furnish a copy of the

brief to the appellant and advise him of his right to obtain new counsel or file

a pro se brief to raise any additional point the appellant deems worth of

review. Santiago, 978 A.2d at 358-61.

      Instantly, the letter sent to Appellant advising him of his right to

respond is deficient. It states, “If the Superior Court approves the brief and

grants the motion, it will allow me to withdraw from this appeal and give you

some period of time (I requested 45 days) to raise new issues, either by

yourself or through counsel.”     We note that counsel’s petition to withdraw

and the merits of the case are conducted at the same time, and counsel is

not permitted to withdraw unless the court finds the appeal frivolous.

Santiago, 978 A.2d at 358-61. Appellant would not be permitted to file a

response after such a determination. Appellant may file a response to this

court upon notification of the Anders filing by counsel and prior to the case

proceeding to the merits panel for review. Id.

      Further, counsel did not properly advise Appellant that he may proceed

either pro se or with privately retained counsel.    See Commonwealth v.

Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).         Accordingly, counsel’s

petition to withdraw is denied.

      Petition to withdraw denied.      Counsel is directed to certify to the

Prothonotary that he has forwarded a copy of this Order to Appellant by

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certified mail, return receipt requested. Appellant has thirty days to respond

upon receipt of this Order. Jurisdiction retained.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/26/2017




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