J-A21015-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    EDWARD LEWIS                               :
                                               :
                       Appellant               :   No. 1261 EDA 2017

             Appeal from the Judgment of Sentence March 22, 2017
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0006075-2015


BEFORE: PANELLA, J., OLSON, J., and McLAUGHLIN, J.

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

       Appellant, Edward Lewis, appeals from the judgment of sentence

following his open guilty plea to possession of marijuana by an inmate, 18

Pa.C.S.A. § 5123, and conspiracy to commit possession of marijuana by an

inmate, 18 Pa.C.S.A. § 903. Appellant asserts that his counseled waiver of

any claim of his counsel’s conflict of interest was not knowing, voluntary, and

intelligent. Appellate counsel has filed an Anders Brief, and an application to

withdraw.1      We conclude that counsel has failed to comply with the

requirements of Anders and Santiago. Accordingly, we deny the petition to




____________________________________________


1See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
J-A21015-18


withdraw and remand for counsel to file either a brief that satisfies all of the

Anders/Santiago requirements, or an advocate’s brief.

      Briefly summarized for background, Pennsylvania State Police arrested

Appellant and his girlfriend, Najeeyah Robinson, after prison officials at SCI

Chester intercepted telephone conversations in which the pair plotted (in

coded language) for Robinson to bring a controlled substance to Appellant,

then an inmate. The arrests stemmed from events which occurred on March

9, 2015.   During a pre-visit search at the prison, a state trooper found a

wrapped package of a green leafy substance, later confirmed to be marijuana,

hidden in Robinson’s underwear.

      On October 21, 2016, after both a written and an extensive on-the-

record oral colloquy, the trial court found Appellant’s guilty plea to be knowing,

voluntary, and intelligent and accepted the counseled open guilty plea to the

two charges previously noted.      See N.T., Guilty Plea, 10/21/2016, at 14.

Notably for this appeal, at the hearing Appellant also waived any objection to

representation by a lawyer from the same firm that represented his co-

defendant, Ms. Robinson. See id. at 8.

      At the sentencing hearing, on March 22, 2017, Appellant made an oral

motion to withdraw his plea. He was apparently upset that his codefendant,

who had also pleaded guilty, received a lighter sentence.              See N.T.

Sentencing, 3/22/17, at 4; see also Trial Court Opinion, 1/19/18, at 2

(Appellant believed he did not get a “good enough deal”).


                                      -2-
J-A21015-18


         After denying Appellant’s motion to withdraw the plea, the court

sentenced him to two concurrent terms of not less than thirty-five nor more

than seventy months of incarceration in a state correctional institution.

Appellant was not eligible for RRRI.

         This appeal followed.2 This Court granted Attorney DeSipio’s April 26,

2017 “Motion To Withdraw As Counsel,” on May 23, 2017, and directed the

trial court to determine if Appellant was eligible for appointed counsel. See

Order, 5/23/17. The trial court complied and in due course, appointed Richard

J. Blasetti, Esq. of the Delaware County Defender’s office to represent

Appellant.     Attorney Blasetti filed an Anders brief, and an application to

withdraw as counsel. Appellant did not reply to counsel’s notice and Anders

brief.

         The statement of questions involved in the Anders brief contains one

claim, which we reproduce verbatim:

                Should there be remand to determine a dual-representation
         conflict when two trial counsel from one law firm represented
         Appellant and his codefendant, each of whom agreed to testify
         against the other, each espoused a different version of the truth,
         each plead (sic) guilty and Appellant’s trial counsel raised his own
         ineffectiveness, generally, in a timely 1925(b) statement?



____________________________________________


2The trial court found the notice of appeal to be timely filed. See Trial Court
Opinion, at 1. Appellant filed a Rule 1925(b) statement chiefly claiming three
errors, ineffective assistance of plea counsel, fraud in the initial plea
agreement, and violations of due process. See Statement of Errors, 5/15/17;
see also Pa.R.A.P. 1925.


                                           -3-
J-A21015-18


Anders Brief, at 3 (emphasis omitted). Counsel confirms that this question

was not presented to the trial court. See id.

      We must first address counsel’s petition to withdraw before reaching the

merits of the issues raised in the Anders brief.     See Commonwealth v.

Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc) (stating that

“[w]hen faced with a purported Anders brief, this Court may not review the

merits of any possible underlying issues without first examining counsel’s

request to withdraw.”).

      Prior to withdrawing as counsel on a direct appeal under Anders,

counsel must file a brief that meets the requirements established by our

Supreme Court in Santiago. The 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 (emphasis added); see also id. at 360 (stating,

“we hold that a discussion of counsel’s reasons for believing that the client’s

appeal is frivolous is mandatory and must be included in counsel’s brief.”)

(emphasis added).

      This Court has stated that the above-listed requirements are “stringent,

and with good reason.     A defendant has a constitutional right to a direct


                                     -4-
J-A21015-18


appeal, see Pa. Const. Art. I, § 9, and a constitutional right to counsel for his

direct appeal.” Commonwealth v. Orellana, 86 A.3d 877, 881 (Pa. Super.

2014) (some citations and brackets omitted).

      The Santiago Court explained why it is important that counsel articulate

his or her reasons for concluding that an appeal is frivolous, as follows:

      We are persuaded that requiring counsel to articulate the basis for
      his or her conclusion of frivolity will advance the twin functions
      counsel’s Anders brief is to serve, i.e., it will assist the
      intermediate appellate courts in determining whether counsel has
      conducted a thorough and diligent review of the case to discover
      appealable issues and whether the appeal is indeed frivolous. . In
      this context, we believe that there is real value in putting pen to
      paper. As the United States Supreme Court has noted, the task
      of articulating reasons can shed new light on what may at first
      appear to be an open-and-shut issue. It can also reveal to counsel
      previously unrecognized aspects of the record or the law and
      thereby provide a safeguard against a hastily-drawn or mistaken
      conclusion of frivolity. In addition, we believe that it is often the
      case that the basis for an attorney’s opinion that an appeal is
      frivolous is not readily apparent, and that accordingly, counsel’s
      explanation will significantly assist the courts in passing upon the
      soundness of counsel’s conclusion, which, in turn, vindicates the
      right to counsel.

Santiago, 978 A.2d at 360-61 (internal citations omitted).

      Here, although Attorney Blasetti has styled his brief as “Pursuant to

Anders v. California,” the brief as submitted does not comply with either

Anders or Santiago.

      Counsel did not [ ] advert to his own review of the record or flag
      anything in the record that he himself saw as having some chance
      of prevailing on appeal, but which he ultimately rejected as
      frivolous.   Nor did counsel state that there were no such
      references for him to make. Without one or the other, we are not
      assured, as Anders requires, that counsel fully performed his
      duty as Santiago’s advocate to independently search the record

                                      -5-
J-A21015-18


      as a trained advocate with an eye to uncovering appealable error,
      before concluding that Santiago’s appeal was frivolous. Under
      Anders, the right to counsel is vindicated by counsel’s
      examination and assessment of the record and counsel’s
      references to anything in the record that arguably supports the
      appeal. The universe of potential claims is not limited to those
      claims and testimony that counsel’s unschooled client believes the
      court should consider. Therefore, we hold that the brief counsel
      presently submitted was insufficient.

Santiago, 978 A.2d at 360.

      In this appeal, counsel does identify one arguable issue, a purported

conflict of interest by dual-representation.      See Anders Brief, at 7-10.

However, counsel does not explain why the claim is frivolous. To the contrary,

the discussion reads more like an advocate’s brief, raising, (although failing

to cite controlling authority or identify any other support for), issues of

attorney-client privilege, confidentiality, the right to conflict counsel, and so

forth. See id. at 10. Counsel does not state his reasons for determining that

these claims are frivolous, or develop an argument in support of or response

to the issues raised, in violation of Santiago.

             [C]ounsel patently has failed to comply with the remaining
      strictures of Anders/Santiago because, rather than concluding
      that [the] appeal is wholly frivolous, counsel actually concludes
      that [the] case presents an appellate issue of arguable merit.
      Because appellate counsel ultimately concludes that [appellant]
      may have a cognizable issue on appeal, he is precluded, as a
      matter of law, from concluding that [appellant’s] appeal is
      frivolous. Thus, counsel has failed to comply with the technical
      requirements of Anders and Santiago.

Orellana, 86 A.3d at 880.




                                      -6-
J-A21015-18


      Therefore, this Anders brief is more than a case of mere inartful

presentation, which we could overlook in order to review the merits. The brief

fails to meet the elementary requirement of setting forth the basis for

concluding that the issues are frivolous, or of developing an argument in

support of Appellant.

      Accordingly, we deny counsel’s petition to withdraw, without prejudice,

and remand so that he may file a brief fully compliant with Santiago, or file

an advocate’s brief, within sixty days of the filing of his memorandum.

      Petition to withdraw denied. Case remanded with direction that counsel

file either a compliant Anders/Santiago brief, or an advocate’s brief, within

sixty days of the date of this memorandum. Panel jurisdiction retained.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/21/19




                                    -7-
