J-S49039-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

CLEO JOSEPH METTS,

                            Appellant                No. 3048 EDA 2015


          Appeal from the Judgment of Sentence September 4, 2015
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0008095-2013

BEFORE: PANELLA, J., OLSON, J., and STEVENS, P.J.E.*

JUDGMENT ORDER BY STEVENS, P.J.E.:               FILED OCTOBER 12, 2016

        Appellant, Cleo Joseph Metts, appeals from the judgment of sentence

entered in the Court of Common Pleas of Delaware County on September 4,

2015, following the imposition of sentence upon the revocation of parole.

We are constrained to remand for the appointment of new counsel, with

instructions.

        On appeal, court-appointed counsel, J. Anthony Foltz, Esquire, though

not filing a petition to withdraw, filed what purported to be an Anders1 brief.

In an unpublished memorandum filed on June 20, 2016, this Court held, in

relevant part, the following:



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1
    Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967).



*Former Justice specially assigned to the Superior Court.
J-S49039-16


           Instantly,    we    conclude    court-appointed   counsel’s
     representation falls short of that of an active advocate.
     Moreover, he has not complied with the technical requirements
     related to the withdrawal of his representation. For instance, he
     has not made any attempt to fulfill the first requirement
     pertaining to petitioning the court for leave to withdraw stating
     that after making a conscientious examination of the record it
     has been determined that the appeal would be frivolous.
     [Commonwealth v.] Martuscelli, 54 A.3d [940,] 947
     [(Pa.Super. 2012)].

           Moreover, as to the second requirement, with regard to his
     purported Anders brief, we note that, although counsel has
     provided a summary of the procedural history of this case, he
     has not      included a single      citation   to   the   record.
     [Commonwealth v.] Santiago, 602 Pa. [159,] 178, 978 A.2d
     [349,] 361 [(2009)]. It is further noteworthy that counsel
     indicates no transcripts exist, and accordingly, he filed a
     Pa.R.A.P. 1923 “Statement in Absence of Transcript.” However,
     this Court has not been provided with a copy of this Statement.

           Finally, as to the third requirement, there is no indication
     that counsel provided a copy of the Anders-styled brief to
     Appellant or advised him of his right to retain new counsel,
     proceed pro se, or raise any additional points that he deems
     worthy of this Court’s attention. [Commonwealth v.] Daniels,
     999 A.2d [590,] 594 [(Pa.Super. 2010)].

           Due to the deficiencies set forth supra, 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 petition to
     withdraw    his     representation,    along   with    a    proper
     Anders/Santiago brief. The Commonwealth shall have 30
     days from the date that counsel files his brief in order to file a
     responsive brief, if necessary.

Commonwealth v. Metts, 3048 EDA 2015, at 4-5 (Pa.Super. filed 6/20/16)

(unpublished memorandum).

     To date, despite the foregoing, Attorney Foltz has not responded to

this Court’s memorandum of June 20, 2016. Specifically, Attorney Foltz has



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filed neither an advocate’s brief nor a proper petition to withdraw his

representation, along with a proper Anders/Santiago brief. Such inaction

is unacceptable, and we admonish Attorney Foltz’s quiescence. His failure

has needlessly delayed the resolution of this appeal. “It is obvious to this

Court that [he] is either unwilling or unable to competently represent

Appellant.” Commonwealth v. McDaniels, 785 A.2d 120, 122 (Pa.Super.

2001). Accordingly, we direct the trial court “to revoke [counsel’s]

appointment and withhold any fees which would normally be paid for this

appeal and to appoint competent counsel to represent Appellant on appeal.”

Id.   Such appointment shall occur within twenty days of the filing of this

Judgment Order.

       After the trial court appoints new counsel, we direct our Prothonotary

to set a new briefing schedule.2 New counsel is directed to review the record

and file either an advocate’s brief or a petition to withdraw as counsel with

an accompanying proper Anders/Santiago brief. The Commonwealth then

shall be permitted to file a responsive brief in accordance with the briefing

schedule.

       Case remanded with instructions. Panel jurisdiction retained.

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2
  We further direct the Prothonotary of this Court to furnish a certified copy
of this Judgment Order to the Disciplinary Board of the Supreme Court of
Pennsylvania, for such further proceedings as may be appropriate.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/12/2016




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