J. S58039/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                    v.                   :
                                         :
CHRISTOPHER DOUGLASS,                    :         No. 729 WDA 2018
                                         :
                         Appellant       :


          Appeal from the Judgment of Sentence, November 1, 2016,
              in the Court of Common Pleas of Venango County
             Criminal Division at Nos. CP-61-CR-0000196-2016,
                           CP-61-CR-0000197-2016


BEFORE: OLSON, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED OCTOBER 30, 2018

        Christopher Douglass appeals from the November 1, 2016 judgment of

sentence after he pled guilty to 21 counts of sexual abuse of children,

possession of child pornography, criminal use of a communication facility,

and indecent assault of a person with a mental disability. 1        Appellant

received an aggregate sentence of 45 months to 35 years of imprisonment.

Matthew C. Parson, Esq. (“Attorney Parson”) has filed an application to

withdraw, alleging that the appeal is frivolous, accompanied by an Anders

brief.2 Upon review, we deny counsel’s application to withdraw and remand




1   18 Pa.C.S.A. §§ 6312(c), 6312(d), 7512(a), and 3126(a)(6), respectively.

2See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
J. S58039/18


for either a compliant Anders/Santiago brief and accurate petition to

withdraw or an advocate’s brief.

      On July 9, 2018, Attorney Parson filed in this court a petition for leave

to   withdraw   as   counsel,   because    he   found     the   appeal   to   be

“wholly frivolous.” (Petition for leave to withdraw as counsel, 7/9/18 at 1,

¶ 3 (emphasis in original).)    On July 6, 2018, Attorney Parson filed an

Anders brief.

            A request by appointed counsel to withdraw pursuant
            to Anders and Santiago gives rise to certain
            requirements and obligations, for both appointed
            counsel and this Court.        Commonwealth v.
            Flowers, 113 A.3d 1246, 1247-1248 (Pa.Super.
            2015).

                  These requirements and the significant
                  protection they provide to an Anders
                  appellant arise because a criminal
                  defendant has a constitutional right to a
                  direct appeal and to counsel on that
                  appeal.   Commonwealth v. Woods,
                  939 A.2d 896, 898 (Pa.Super. 2007).
                  This Court has summarized these
                  requirements as follows:

                        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



                                     -2-
J. S58039/18


                    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 additional
                    points worthy of the Court’s
                    attention.

               Woods, 939      A.2d   at   898   (citations
               omitted).

               There are also requirements as to the
               precise requirements of an Anders brief:

                    [T]he Anders brief that
                    accompanies court-appointed
                    counsel’s       petition       to
                    withdraw        ...        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 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.



                                  -3-
J. S58039/18


            Id. at 1248. If this Court determines that appointed
            counsel has met these obligations, it is then our
            responsibility “to make a full examination of the
            proceedings and make an independent judgment to
            decide whether the appeal is in fact wholly frivolous.”
            Id. at 1248. In so doing, we review not only the
            issues identified by appointed counsel in the Anders
            brief, but examine all of the proceedings to “make
            certain that appointed counsel has not overlooked
            the existence of potentially non-frivolous issues.”
            Id.

Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).

      Regarding the requirements of Anders, Attorney Parson has filed a

petition that avers that, after a conscientious examination of the record, he

finds the appeal to be wholly frivolous.      He has also filed a brief that

attempts to set forth the issues that might arguably support the appeal. He

identifies the issue in the statement of questions involved in the brief as:

“Whether the Sentencing Court erred as a matter of law or abused its

discretion when the Sentencing Court ordered an excessive sentence[?]”

(Anders brief at 5.)     The body of the argument section of the brief

addresses the issue contained in the statement of questions involved, so the

issue set forth in the brief complies with Anders.

      However, there are some obvious deficiencies in Attorney Parson’s

petition and accompanying brief.      First, this court notes that the first

paragraph of Attorney Parson’s petition to withdraw states the following: “In

this case the Defendant was sentenced to two counts of Aggravated Assault

a Felony 2, and two counts of Retail Theft.” (Petition for leave to withdraw



                                     -4-
J. S58039/18


as counsel, 7/9/18 at 1, ¶ 1.) This statement is clearly incorrect as a review

of the record confirms that appellant was convicted of crimes related to child

pornography and indecent assault.        His failure to identify correctly the

crimes for which appellant was convicted is a material defect in the petition,

which this court cannot accept.3

      Turning to the Anders brief, there are some additional deficiencies.

First, Attorney Parson states that the order from which appellant appeals,

the order of court dated November 11, 2016, is attached as Appendix A of

the brief, but it is not. Second, Attorney Parson relies heavily on the trial

court opinion and incorporates it by reference when he explains why

appellant’s appeal is frivolous. In the brief, Attorney Parson states that the

opinion is attached as Appendix B. However, the opinion was not attached

as Appendix B originally.    After filing the brief, Attorney Parson corrected

this error by filing an addendum that contained the trial court opinion on

July 31, 2018.    It is not clear from the record whether Attorney Parson




3 In Paragraph 3 of the petition to withdraw, Attorney Parson refers to the
sentence order of 45 months to 36 years. A review of the record reveals
that the Sentence Order filed on November 4, 2016 states that the
aggregate sentence is 3 years 9 months to 35 years as opposed to the
36 years listed in the petition. (Sentence Order, 11/4/16 at 3-4.) In
addition, Attorney Parson identifies appellant in the caption of the petition as
“Chrisopher Douglas.” (Petition for leave to withdraw as counsel, 7/9/18
at 1.)      The   record    clearly   states    that   appellant’s   name      is
“Christopher Douglass.” While these two errors may not appear substantive,
Attorney Parson should submit an accurate petition.


                                      -5-
J. S58039/18


included the trial court opinion in the copy of his brief that he sent to

appellant or whether he served appellant with the addendum.

      In   his   determination      of     whether   the   appeal   is    frivolous,

Attorney Parson states:

            The trial court did give his [sic] reasons for the
            sentence on the record at the time of sentencing and
            in addition, the trial court placed in the standard law
            and the guidelines in the 1925 opinion. The 1925
            opinion is attached hereto as Appendix B and
            incorporated by reference as if filly [sic] set forth
            herein. There was a deal in that man [sic] of the
            counts ran concurrently but the different crimes ran
            consecutively. There was no departure from the
            standard range.

Anders brief at 8. While this court has the ability to review the trial court’s

opinion, it is not clear that appellant or potential new counsel, if any, could

easily do so.    Attorney Parson has failed to establish that he sent the

complete brief to appellant as required under Anders.

      Due to the deficiencies in the petition and Attorney Parson’s failure to

comply with Anders, we deny Attorney Parson’s petition to withdraw as

counsel.   We remand this case with instruction to counsel to file either a

compliant Anders/Santiago brief and an accurate petition to withdraw as

counsel or an advocate’s brief.          Counsel is directed to comply with this

directive within 30 days of the date of this memorandum. Appellant and the

Commonwealth may respond within 30 days of counsel’s filing of his brief.

      Application   to   withdraw    as    counsel   denied.   Case      remanded.

Jurisdiction retained.


                                          -6-
