J-S22036-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                    Appellee               :
                                           :
                    v.                     :
                                           :
SAUNDRA LEE DINGER,                        :
                                           :
                     Appellant             :     No. 1784 WDA 2014

    Appeal from the Judgment of Sentence Entered September 22, 2014,
             in the Court of Common Pleas of Jefferson County,
         Criminal Division, at No(s): CP-33-CR-0000445-2011 and
                          CP-33-CR-0000605-2012

BEFORE:      PANELLA, LAZARUS, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:            FILED SEPTEMBER 02, 2015

      Saundra Lee Dinger (Appellant) appeals from a judgment of sentence

entered after the trial court revoked her probation. In addition, Appellant’s

counsel has filed a petition to withdraw and a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009). We previously denied counsel’s petition to withdraw

and remanded with instructions.        We again deny counsel’s petition to

withdraw and remand with instructions.

      We briefly summarize the background underlying this matter as

follows.   The trial court revoked Appellant’s probation and sentenced her.

Appellant timely filed a post-sentence motion, which the trial court denied.

Appellant timely filed a notice of appeal. The trial court directed Appellant to

comply with Pa.R.A.P. 1925(b).     Appellant filed a 1925(b) statement, and

*Retired Senior Judge assigned to the Superior Court.
J-S22036-15


the trial court subsequently filed an opinion in compliance with Pa.R.A.P.

1925(a).

      Counsel then filed with this Court a petition to withdraw and an

Anders brief. We consider such matters as follows.

      Direct appeal counsel seeking to withdraw under Anders must
      file a petition averring that, after a conscientious examination of
      the record, counsel finds the appeal to be wholly frivolous.
      Counsel must also file an Anders brief setting forth issues that
      might arguably support the appeal along with any other issues
      necessary for the effective appellate presentation thereof….

             Anders counsel must also provide a copy of the Anders
      petition and brief to the appellant, advising the appellant of the
      right to retain new counsel, proceed pro se or raise any
      additional points worthy of this Court’s attention.

             If counsel does not fulfill the aforesaid technical
      requirements of Anders, this Court will deny the petition to
      withdraw and remand the case with appropriate instructions
      (e.g., directing counsel either to comply with Anders or file an
      advocate’s brief on Appellant's behalf). By contrast, if counsel’s
      petition and brief satisfy Anders, we will then undertake our
      own review of the appeal to determine if it is wholly frivolous. If
      the appeal is frivolous, we will grant the withdrawal petition and
      affirm the judgment of sentence. However, if there are non-
      frivolous issues, we will deny the petition and remand for the
      filing of an advocate’s brief.

Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)

(citations omitted).   Our Supreme Court has expounded further upon the

requirements of Anders as follows.

      [I]n 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


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J-S22036-15


        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.

Santiago, 978 A.2d at 361.

        We determined that counsel failed to comply with the above

requirements. In so doing, we cited the following missteps by counsel: 1)

counsel failed to append to the Anders brief the Pa.R.A.P. 1925(b)

statement; 2)     the certificate of service that counsel attached to the petition

to withdraw did not reflect that counsel served Appellant with the petition;

3) the Anders brief’s “statement of the case” did not contain any citation to

the record; 4) counsel failed to ensure that the certified record contained a

transcript of the Gagnon I1,      2
                                      hearing; and 5) counsel did not explain

adequately his reasons for concluding that the appeal is wholly frivolous.

Due to these deficiencies, we denied counsel’s petition to withdraw without

prejudice and remanded this case, directing counsel to file either an

advocate’s brief or a proper Anders brief and petition to withdraw.

        Counsel again has filed a petition to withdraw and an Anders brief.

Counsel has repeated his failure to append to the Anders brief the Pa.R.A.P.


1
    Gagnon v. Scarpelli, 411 U.S. 778 (1973).
2
  “[T]he Gagnon I hearing is similar to the preliminary hearing afforded all
offenders before a Common Pleas Court trial: the Commonwealth must
show probable cause that the violation was committed.” Commonwealth
v. Ferguson, 761 A.2d 613, 617 (Pa. Super. 2000) (citation omitted).


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1925(b) statement.        Moreover, counsel simply did not file a certificate of

service with his new petition to withdraw.             While the Anders brief’s

“statement of the case” contains citation to the record and counsel better

explained his reasons for concluding that the appeal is wholly frivolous, he

failed to ensure that the certified record contained a transcript of the

Gagnon I hearing.3

        Due to these deficiencies, we again deny counsel’s petition to withdraw

without prejudice.       Thus, we remand this case and direct counsel to file,

within 30 days of the date of this memorandum, either an advocate’s brief or

a proper Anders brief and petition to withdraw.4 The Commonwealth shall

have 30 days from the date that counsel files his brief in order to file a

responsive brief.

        Petition   to   withdraw   as   counsel   denied.   Case   remanded   with

instructions. Panel jurisdiction retained.




3
  Counsel appended to the Anders brief what appears to be a copy of the
Gagnon I hearing transcripts. Such an action is insufficient to correct the
hole in the certified record. See Commonwealth v. Preston, 904 A.2d 1,
6-7 (Pa. Super. 2006) (“[U]nder the Pennsylvania Rules of Appellate
Procedure, any document which is not part of the officially certified record is
deemed non-existent—a deficiency which cannot be remedied merely by
including copies of the missing documents in a brief or in the reproduced
record.”).
4
    We will not countenance a third non-compliant effort on counsel’s part.



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