J-A10024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ARIESET GALARZA-RUIZ

                            Appellant                 No. 1857 MDA 2014


          Appeal from the Judgment of Sentence September 30, 2014
              In the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-36-CR-0000864-2014
                                         CP-36-CR-0000921-2014
                                         CP-36-CR-0000867-2014
                                         CP-36-CR-0000925-2014
                                         CP-36-CR-0000926-2014
                                         CP-36-CR-0000927-2014
                                         CP-36-CR-0000929-2014
                                         CP-36-CR-0000933-2014


BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY MUNDY, J.:                                FILED JULY 08, 2015

        Appellant, Arieset Galarza-Ruiz, appeals from the September 30, 2014

judgment of sentence, imposed following Appellant’s guilty plea to ten

counts of robbery, five counts of criminal conspiracy, and one count of

burglary.1    After careful review, we remand and direct counsel to file a

proper advocate’s brief or file a petition to withdraw and accompanying brief



____________________________________________


1
    18 Pa.C.S.A. §§ 3701 (a)(1)(ii), 903, and 3502(a)(2), respectively.
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in accordance with Anders v. California, 386 U.S. 738 (1967) and its

progeny.

       We summarize the relevant procedural background of this case as

follows.      On    September       17,   2014,   Appellant   pled   guilty   to   the

aforementioned crimes.2            At the guilty plea hearing, Appellant was

represented by Christopher Lyden, Esquire (Attorney Lyden), whom the trial

court had appointed to represent Appellant “in all proceedings before th[e

trial] court and before any appellate court.” Trial Court Order, 1/31/14.

       On September 30, 2014, the trial court sentenced Appellant, and on

October 9, 2014, Appellant filed a pro se motion to modify his sentence.3

On October 16, 2014, the trial court ordered Attorney Lyden to file an

amended motion to modify sentence on Appellant’s behalf within 20 days.
____________________________________________


2
  Specifically, Appellant pled guilty to one count of robbery at docket number
CP-36-CR-0000864-2014; four counts of robbery and two counts of
conspiracy at docket number CP-36-CR-0000867-2014; one count of
robbery at docket number CP-36-CR-0000921-2014; one count of robbery
and one count of conspiracy at docket number CP-36-CR-0000925-2014;
one count of burglary at CP-36-CR-0000926-2014; one count of robbery and
one count of conspiracy at docket number CP-36-CR-0000927-2014; one
count of robbery at docket number CP-36-CR-000929-2014; and one count
of robbery and one count of conspiracy at docket number CP-36-CR-
0000933-2014.
3
  “We have held that a criminal defendant’s pro se actions have no legal
effect while he or she remains represented by counsel.” Commonwealth v.
Hall, 476 A.2d 7, 9-10 (Pa. Super. 1984); see also Commonwealth v.
Nischan, 928 A.2d 349, 355 (Pa. Super. 2007) (noting that a defendant’s
pro se filings while represented by counsel are legal nullities), appeal denied,
936 A.2d 40 (Pa. 2007).




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Trial Court Order, 10/16/14.         On October 22, 2014, counsel complied and

filed an amended post-sentence motion, and the trial court denied said

motion on October 28, 2014.4

       On November 4, 2014, Appellant filed a timely counseled notice of

appeal.5     Pursuant to Pennsylvania Rule of Appellate Procedure 1925,

Appellant filed a statement of matters complained of on appeal on November

13, 2014, and the trial court issued its Rule 1925(a) opinion on November

25, 2014. The Rule 1925 statement filed by counsel asserts the following.

                    Appellant entered an invalid plea, because
              counsel “gave [him] the understanding” that he
              would receive a lesser sentence. Present counsel
              concludes that [A]ppellant’s claim is not reviewable
              on direct appeal and concludes that there are no
              non-frivolous claims to assert.

Appellant’s Statement of Matters Complained of on Appeal, 11/13/14.

       In the brief filed on Appellant’s behalf, Attorney Lyden advances the

following issue for our review.

              Is the direct appeal frivolous where the only claim
              alleges plea counsel provided ineffective assistance
              by giving Appellant the “understanding” that he
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4
  We deem the trial court’s October 16, 2014 order to be equivalent to a
grant of leave to file post-sentence motions nunc-pro-tunc. Accordingly, we
deem the October 22, 2014 post-sentence motion to be timely.
5
  We note that Appellant’s notice of appeal purports to appeal from the
October 28, 2014 order denying his post-sentence motion. However, a
direct appeal in a criminal case can only lie from the judgment of sentence.
Commonwealth v. Kuykendall, 2 A.3d 559, 560 n.1 (Pa. Super. 2010)
(citation omitted).



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              would receive a more lenient sentence than the court
              ultimately imposed?

Appellant’s Brief at 4.6 Further, Attorney Lyden “requests this Court grant

the motion to withdraw.” Id. at 8. However, Attorney Lyden did not file a

motion to withdraw for this Court’s consideration.

        In Anders, the United States Supreme Court discussed the obligation

of appointed counsel to an indigent client during direct appeal with respect

to crafting a balance between counsel’s role as advocate and counsel’s

conclusion that any issue raised on direct appeal would be wholly frivolous.

                    The constitutional requirement of substantial
              equality and fair process can only be attained where
              counsel acts in the role of an active advocate [o]n
              behalf of his client, as opposed to that of amicus
              curiae. The no-merit letter and the procedure it
              triggers does not reach that dignity. Counsel should,
              and can with honor and without conflict, be of more
              assistance to his client and to the court. His role as
              an advocate requires that he support his client’s
              appeal to the best of his ability. Of course, if counsel
              finds his case to be wholly frivolous, after a
              conscientious examination of it, he should so advise
              the court and request permission to withdraw.

Anders, supra at 745.          In Commonwealth v. Santiago, 978 A.2d 349

(Pa. 2009), our Supreme Court delineated the requirements of an Anders

brief which accompanies appointed-counsel’s request to withdraw.

                    [W]e hold that in the Anders brief that
              accompanies court-appointed counsel’s petition to
              withdraw, counsel must: (1) provide a summary of
____________________________________________


6
    The Commonwealth elected not to file a brief in this case.



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              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.

Id. at 361.

      Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.

2005), and its progeny, counsel seeking to withdraw on direct appeal must

also meet the following obligations to his or her client.

              Counsel also must provide a copy of the Anders
              brief to his client. Attending the brief must be a
              letter that advises the client of his 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. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014)

(internal quotation marks and citation omitted). “Once counsel has satisfied

the above requirements, it is then this Court’s duty to conduct its own

review of the trial court’s proceedings and render an independent judgment

as to whether the appeal is, in fact, wholly frivolous.” Commonwealth v.

Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc), quoting

Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).




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       Instantly, we conclude Attorney Lyden’s representation falls short of

that of an active advocate, and further, that he has not complied with the

mandates of Santiago and Millisock. We reproduce Appellant’s argument

in its entirety.

                    Appellant’s claim implicated the effectiveness
              of prior counsel. Pursuant to Commonwealth v.
              Grant, 813 A.2d 726 ([Pa.] 2002), claims of
              ineffective assistance of counsel must first be raised
              in the lower court by filing a petition for relief under
              the Post Conviction Relief Act.

                    Also, present counsel has reviewed the notes
              of testimony from the guilty plea and sentencing
              hearing. The record indicates that prior counsel[7]
              did not object during either proceeding. Therefore,
              to the extent there is a potential challenge to the in-
              court plea and sentencing hearings, such a claim
              would have to first be raised by claiming prior
              counsel failed to timely object. Therefore, pursuant

____________________________________________


7
  Despite Attorney Lyden’s references to the actions of “prior counsel,” the
certified record reveals he was appointed to represent Appellant throughout
the proceedings and in fact did so before the trial court. We also note while
Attorney Lyden references his review of the notes of testimony from both
the plea and sentencing proceedings, only the former transcript is contained
within the certified record. Therefore, this Court would be unable to review
any potential challenge to the sentencing proceedings.                    See
Commonwealth v. Spotti, 94 A.3d 367, 381-382 (Pa. Super. 2014) (en
banc) (noting that Appellant bears the burden of ensuring the certified
record is complete and concluding that this Court is precluded from
reviewing that which an appellant has failed to include in the certified
record), appeal granted, 107 A.3d 748 (Pa. 2015); see also
Commonwealth v. Vilsaint, 883 A.2d 753, 758 (Pa. Super. 2006)
(discussing counsel’s stewardship and noting, “’[g]iven that this is a direct
appeal, and that counsel has filed an Anders brief, it would be prudent if not
mandatory for counsel to have ordered all the notes of testimony[]”).




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              to Grant, a claim challenging inadequacies of the in-
              court hearing must first be raised in the lower court.

Appellant’s Brief at 7.8 Reading counsel’s stated issue on appeal together

with the argument section of the brief, counsel argues only that the sole

claim on appeal is frivolous because it involves the effectiveness of counsel

and such claims are not cognizable on direct appeal. See id. at 4, 7. With

respect to the technical requirements of Santiago, counsel has failed to

substantially comply with any of its mandates. First, in counsel’s statement

of the case, he provides a summary of the procedural history; however,

counsel fails to include a single citation to the record. Further, our review of

the record reveals that counsel’s summary is inaccurate and incomplete.

See, e.g., Appellant’s Brief at 5 (“[t]he charges included seven counts of

robbery and one count of burglary[]”). Counsel does not refer to anything in

the record arguably supporting the appeal, nor does counsel set forth his

conclusion in the brief that the appeal is frivolous, excepting the reference in

the question presented.        In counsel’s argument, he fails to articulate the

relevant facts of record that led to the conclusion that the appeal is frivolous.

See Santiago, supra. Further, Attorney Lyden has not complied with the

notification requirements of Millisock. Accordingly, because Appellant was

not advised in accordance with Millisock, he lacked awareness of his

____________________________________________


8
  We note Appellant’s argument section is identical to his summary of the
argument section contained in his brief. See Appellant’s Brief at 6.



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

points for this Court’s consideration.           See Orellana, supra at 880.

Counsel’s deficient performance in advocating on behalf of his client, or,

alternatively, in informing his client and this Court as to why the appeal is

wholly frivolous as our case law requires, necessitates that this case be

remanded.

       Based on the foregoing, we remand for counsel to either file an

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

meets the requirements pursuant to Anders and Santiago within 21 days

of the date of this decision. If counsel elects to file a petition to withdraw,

he must also comply with the notice requirements of Millisock, and file

proof thereof with this Court. Appellant will have 21 days from the filing of

the petition to withdraw to file a pro se response, if he so chooses.      We

remind counsel on remand “that the right to representation on direct appeal

is not satisfied merely by addressing those issues that the unschooled client

wishes to advance.”9          Orellana, supra at 882 (emphasis in original).

Moreover, “[t]he universe of potential claims is not limited to those claims
____________________________________________


9
   Attorney Lyden appears to indicate, in the 1925 statement and brief he
filed on Appellant’s behalf, that he was raising the issue precisely as phrased
by Appellant. See Appellant’s Statement of Matters Complained of on
Appeal, 11/13/14; Appellant’s Brief at 4. Without complying with the
requirements of Santiago, this Court is unable to determine whether
counsel considered other potentially meritorious issues on appeal or limited
his review only to the issue advanced by Appellant.




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that [the] client believes this court should consider.” Id. (citation and

emphasis omitted).

     Case remanded. Jurisdiction retained.




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