J-S38038-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                 Appellee                 :
                                          :
                    v.                    :
                                          :
MEGAN V. JEWELL,                          :
                                          :
                 Appellant                :    No. 109 WDA 2018

           Appeal from the Judgment of Sentence January 5, 2018
     in the Court of Common Pleas of Venango County Criminal Division
                      at No(s): CP-61-CR-0000312-2014
                                CP-61-CR-0000353-2017
                               CP-61-CR-0000366-2017
                               CP-61-CR-0000387-2017

BEFORE:     BOWES, J., NICHOLS, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:           FILED MARCH 21, 2019

      Megan V. Jewell (Appellant) appeals from the January 5, 2018

judgment of sentence of an aggregate term of 32 to 64 months’

incarceration following the revocation of her probation and after pleading

guilty to two counts each of retail theft and aggravated assault. In addition,

Appellant’s counsel filed a petition to withdraw and a brief pursuant to

Anders v. California, 386 U.S. 738 (1967). We previously denied counsel’s

petition to withdraw and remanded with instructions.     Commonwealth v.

Jewell, 195 A.3d 1033 (Pa. Super. 2018) (unpublished memorandum).

Upon review of the record and counsel’s brief filed following remand, we

again deny counsel’s petition to withdraw and remand with instructions.




*Retired Senior Judge assigned to the Superior Court.
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     Due to our disposition herein, we need not provide the factual or

procedural history of this matter. We do, however, reiterate the standards

to be applied in considering a petition to withdraw and an Anders brief.

     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
     conclusion that the appeal is frivolous; and (4) state counsel’s
     reasons for concluding that the appeal is frivolous. Counsel



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      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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). (emphasis

added).

      In this Court’s memorandum filed August 27, 2018, we determined

that counsel did not comply with the above requirements. Specifically, our

review of the certified record revealed the absence of a written guilty plea

colloquy, as well as the transcripts of Appellant’s guilty plea and Gagnon II

hearing. Additionally, counsel failed to cite to any pertinent transcript within

his brief.

      We further noted that counsel

      identified only one issue for review, a claim challenging the
      discretionary aspects of Appellant’s sentence. However, counsel
      cites the standard of review for an illegal sentence claim, and its
      two-page “statement” to arguably support this issue contains no
      citation to the record and only a mere recitation of the court’s
      statements at sentencing. Furthermore, although this Court was
      provided a copy of the transcript from the sentencing hearing,
      counsel does not cite to the relevant parts of the transcript to
      support his conclusion that the sole issue presented is frivolous.


Jewell, 2018 WL 4057391, at *2, n.5. Due to these deficiencies, we denied

counsel’s petition to withdraw and remanded this case, directing counsel to

complete the record and then “file either an advocate’s brief or a new

petition     to   withdraw   and   Anders   brief   that   fully   comply   with   the

requirements detailed above.” Id. at 3.




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        After remand, the certified record has been supplemented.1 However,

instead of filing an advocate’s brief or a new petition to withdraw and

Anders brief, counsel filed the same Anders brief previously filed with this

Court, which was already determined to be inadequate for the reasons cited

supra.    As such, we again deny counsel’s petition to withdraw.      We again

remand this case and direct counsel to file either an advocate’s brief or a

compliant Anders brief completely anew2 along with an accompanying letter

advising Appellant of her right to retain new counsel, proceed pro se, or

raise any additional points Appellant deems worthy of this Court’s attention.

Counsel is directed to comply with every aspect of this memorandum within

30 days of the date of this memorandum. Appellant and the Commonwealth



1  Specifically, this Court received, inter alia, the transcripts of Appellant’s
guilty plea and Gagnon II hearings and Appellant’s 2017 plea agreement
form. A written guilty plea colloquy was not included. We acknowledge that
a written colloquy is not mandated in guilty plea proceedings. Counsel
should nevertheless inform this Court whether one exists, and if so, include
it in the certified record.

2   To be clear, counsel’s new Anders 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 case law, and/or statutes on point that have led to
        the conclusion that the appeal is frivolous.

Santiago, 978 A.2d at 361.


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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. Jurisdiction retained.




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