J-S61020-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

JASON PAUL FAY

                            Appellant                       No. 614 MDA 2015


        Appeal from the Judgment of Sentence of September 20, 2012
           In the Court of Common Pleas of Susquehanna County
              Criminal Division at No: CP-58-CR-0000251-2011


BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.:                               FILED OCTOBER 27, 2015

       In this case, Jason Fay, after having his direct appeal rights reinstated,

appeals the September 20, 2012 judgment of sentence. Fay’s counsel has

filed a petition to withdraw as counsel, together with an Anders brief.1

However,      Fay’s    counsel     has    not   satisfied   the   Anders/Santiago

requirements.      Consequently, we deny counsel’s petition to withdraw as

counsel, and remand this case either for a compliant Anders/Santiago brief

or an advocate’s brief addressing Fay’s claims on the merits.



____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
1
     See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981), abrogated in part by
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
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       In the spring of 2010, Fay committed a series of burglaries, thefts, and

related crimes in Susquehanna County, Pennsylvania.2        Around the same

time, Fay perpetrated similar crimes in nearby counties. Fay was charged

accordingly in the respective counties.

       In Susquehanna County, Fay was charged in three separate criminal

informations for his string of crimes.           After some cooperation and

negotiation, Fay agreed to plead guilty to three counts of burglary. As part

of the plea agreement, the Commonwealth agreed to each of the burglary

sentences being run concurrently with each other. The Commonwealth also

agreed not to object to Fay’s request that the trial court run his

Susquehanna sentences concurrently with any sentences that he was

serving, or would serve, in any of the other counties where he committed

crimes, including Lackawanna County.

       On August 24, 2012, Fay pleaded guilty according to the agreement.

The Commonwealth nolle prossed all of the remaining charges.                On

September 20, 2012, the trial court sentenced Fay to two to fifteen years’

incarceration on each burglary count, and ordered each sentence to run

concurrently to each other per the plea agreement. However, the trial court

ordered these sentences to run consecutively, not concurrently, to any other

sentence that was imposed for his actions outside of Susquehanna County.

____________________________________________


2
       Due to our disposition, the factual details of these crimes are
irrelevant. We will not recite them here.



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The Commonwealth upheld its end of the bargain. The Commonwealth did

not object to Fay’s request that all of the sentences run concurrently.

However, the victims of the burglaries did object. The trial court heeded the

victim’s objections, and sentenced Fay accordingly.         Fay filed a post-

sentence motion, which the trial court denied on October 17, 2012.

      Fay filed a notice of appeal on November 20, 2012, which was beyond

the thirty-day appeal period. On February 27, 2012, this Court, noting our

lack of jurisdiction due to Fay’s untimely notice of appeal, quashed Fay’s

direct appeal.

      Thereafter, Fay filed multiple petitions for relief pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. Subsequently, the

trial court granted relief to Fay, and reinstated Fay’s direct appeal rights. On

April 7, 2015, Fay filed a notice of appeal. The trial court did not order Fay

to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal, and Fay did not file a statement.

      Counsel for Fay has identified the following issue on Fay’s behalf: Did

the trial court err in imposing a consecutive sentence as opposed to a

concurrent sentence? Anders Brief at 4.

      As noted, counsel for Fay proceeds pursuant to Anders and Santiago.

This Court first must pass upon counsel’s petition to withdraw before

reviewing the merits of the issue presented by Fay.       Commonwealth v.

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

withdrawing as counsel under Anders, counsel must file a brief that meets

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the requirements established by our Supreme Court in Santiago. The brief

must provide the following information:

      (1) a summary of the procedural history and facts, with
      citations to the record;

      (2) reference to anything in the record that counsel believes
      arguably supports the appeal;

      (3)   counsel’s conclusion that the appeal is frivolous; and

      (4) 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.

      Counsel also must provide a copy of the Anders brief to his client.

Attending the brief must be a letter that advises the client of his rights to

“(1) retain new counsel to pursue the appeal; (2) proceed pro se on appeal;

or (3) raise any points that the appellant deems worthy of the court’s

attention in addition to the points raised by counsel in the Anders brief.”

Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007); see

also Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010).

Finally, to facilitate our review of counsel’s satisfaction of his obligations, he

must attach to his petition to withdraw the letter that he transmitted to his

client. See Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super.

2005).

      Counsel has not complied with these requirements.             Counsel has

provided a summary of the factual and procedural history of this case, but it


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is insufficient. The entirety of the recitation is two sentences, and contains

none of the facts underlying Fay’s convictions and it has no citations to the

record. Counsel omits almost all of the relevant procedural events that we

have summarized above.

       More importantly, although counsel concludes that Fay’s appeal is

wholly frivolous, counsel does not offer a single reason in support of his

conclusion as is required by Santiago.       Counsel recites the governing

standards, including various quotes from Anders, but elects not to discuss

the merits, or lack thereof, of Fay’s claim. Indeed, counsel admits that he

“does not offer argument in support of [Fay’s] claim, but instead asks this

Court to determine whether [Fay’s] assertion is wholly frivolous pursuant to

[Anders].”    Anders Brief at 5.     Counsel clearly has misinterpreted the

governing case law and is attempting to shift the burden to demonstrate

frivolity to this Court.   However, Santiago is clear in its mandate.    It is

counsel who must offer reasons to this Court that would justify his

conclusion that Fay’s appeal is wholly frivolous. See Santiago, 978 A.2d at

361.

       Counsel also has not demonstrated that he sent Fay a letter informing

him that he has identified no meritorious issues to pursue on appeal; that

counsel has filed an application to withdraw from Fay’s representation; and




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that Fay may find new counsel or proceed pro se.3 Instead, counsel advises

Fay that he has these rights in capitalized and bolded letters at the end of

the Anders brief and at the end of his motion to withdraw as counsel, which

is attached to the brief. However, counsel does not include a certificate of

service to either the brief or the motion.       Fortunately, we know that Fay

received a copy of the materials because Fay has filed a reply with this

Court.    But, Fay’s receipt of the materials does not vitiate counsel’s near-

complete failure to comply with the technical requirements imposed by

Anders, Santiago, and Millisock.

       Finally, we note that Fay’s claim implicates the discretionary aspects of

his sentence.     As noted, counsel believes that this issue is meritless.   We

have independently reviewed this record and have noted that the transcripts

from both the guilty plea hearing and the sentencing hearing are not in the

record.   It is unclear whether the transcripts were ordered and not made

part of the record, or whether they have never been produced at all. If the

latter is true, counsel could not have thoroughly assessed the entire record

and Fay’s claim before concluding that it is wholly frivolous. If the former is

true, then we will not be able to perform our own independent assessment

of the case and Fay’s claim.         See Commonwealth v. Flowers, 113 A.3d


____________________________________________


3
      In the event that counsel did send a letter to Fay, counsel has not
attached the letter to his petition to withdraw as counsel, as is required by
Millisock.



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1246,      1251   (Pa.      2015)      (holding     that    counsel     failed   to        meet

Anders/Santiago requirements and remanding for production and review of

necessary transcripts).

        For these reasons, it is apparent that counsel has not complied with

Anders and its progeny.           Due to the non-compliance, we deny counsel’s

motion to withdraw as counsel.           We remand this case with instructions to

counsel to complete the record, and to then file either a compliant

Anders/Santiago brief or an advocate’s brief.                     Counsel is directed to

comply     with   this     directive   within     thirty   days   of   the   date     of    this

memorandum. Fay and the Commonwealth may respond accordingly within

thirty days of counsel’s filing to whatever course of action is chosen by

counsel.

        Application   to    withdraw     as     counsel    denied.      Case     remanded.

Jurisdiction retained.




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