J-S23033-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                Appellee                  :
                                          :
                   v.                     :
                                          :
DAVID JULIUS PRICE, SR.,                  :
                                          :
                Appellant                 : No. 1647 EDA 2014

       Appeal from the Judgment of Sentence Entered April 30, 2014,
            in the Court of Common Pleas of Delaware County,
           Criminal Division, at No(s): CP-23-CR-0006350-2013

BEFORE:    DONOHUE, SHOGAN, and STRASSBURGER, JJ.*

MEMORANDUM BY STRASSBURGER, J.:                   FILED AUGUST 26, 2015

     David Julius Price, Sr. (Appellant) appeals from the judgment of

sentence entered April 30, 2014, following his guilty plea to one count of

driving under the influence of alcohol (DUI) - highest rate of alcohol - third

offense, three counts of recklessly endangering another person, and one

count of driving while operating privilege was suspended or revoked.

Counsel for Appellant has filed a petition to withdraw and brief pursuant to

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

Santiago, 978 A.2d 349, 361 (Pa. 2009). On June 11, 2015, this panel

remanded the case, directing counsel either to comply with the requirements

of Anders or to file an advocate’s brief.     Upon review of counsel’s new

petition to withdraw and brief, we again remand this case with instructions.




*Retired Senior Judge assigned to the Superior Court.
J-S23033-15


             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).

      In our prior memorandum, we denied counsel’s petition to withdraw

and pointed out deficiencies in counsel’s petition and Anders brief: counsel

purportedly reviewed Appellant’s discretionary aspects of sentencing claim;

however, counsel’s stated reason for concluding the argument was frivolous

was legally erroneous; counsel failed to preserve properly the discretionary

aspects claim by filing a separate Pa.R.A.P. 2119(f) statement, and failed to

indicate whether Appellant’s claim raised a substantial question for our



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J-S23033-15


review. With respect to the final two issues, we set forth for counsel the

relevant procedure for challenging the discretionary aspects of sentence on

direct appeal:

         Before [this Court may] reach the merits of [a challenge to
         the discretionary aspects of a sentence], we must engage
         in a four part analysis to determine: (1) whether the
         appeal is timely [filed]; (2) whether Appellant preserved
         his issue; (3) whether Appellant’s brief includes a concise
         statement of the reasons relied upon for allowance of
         appeal with respect to the discretionary aspects of
         sentence; and (4) whether the concise statement raises a
         substantial question that the sentence is appropriate under
         the sentencing code.... [I]f the appeal satisfies each of
         these four requirements, we will then proceed to decide
         the substantive merits of the case.

Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations

omitted); see Commonwealth v. Price, 1647 EDA 2014, at *6 n2 (Pa.

Super. filed June 11, 2015).

      On July 27, 2015, counsel filed a new petition to withdraw and Anders

brief. While he now concedes that the discretionary aspects of Appellant’s

sentence are reviewable on direct appeal, counsel has once more failed to

comply with the requirements of Disalvo.     Accordingly, we are unable to

review Appellant’s substantive issue.

      Thus, we again “deny the petition to withdraw and remand the case

with appropriate instructions … directing counsel either to comply with

Anders or file an advocate’s brief on Appellant’s behalf.” Wrecks, supra.

We note that we will not countenance a third non-compliant effort.



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J-S23033-15


      Petition to withdraw as counsel denied.   Case remanded with

instructions. Jurisdiction retained.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 8/26/2015




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