J-S29011-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT
                                                               OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

 JOSE GARCIA,

                            Appellant                   No. 2932 EDA 2018


    Appeal from the Judgment of Sentence Entered September 11, 2018
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0001603-2017


BEFORE: BENDER, P.J.E., LAZARUS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                         FILED AUGUST 05, 2019

         Appellant, Jose Garcia, appeals from the judgment of sentence of two

years’ probation, imposed after he entered a negotiated guilty plea for

possession of a controlled substance, 35 P.S. § 780-113(a)(16). On appeal,

Appellant challenges whether he knowingly, intelligently, and voluntarily

entered his guilty plea. In addition, Appellant’s counsel, Jessica C. Mann, Esq.,

seeks to withdraw her representation of Appellant pursuant to Anders v.

California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009).        We deny Attorney Mann’s petition to withdraw and

remand for counsel to file either a compliant Anders brief or an advocate’s

brief.

         In its Pa.R.A.P. 1925(a) opinion, the trial court summarized the relevant

facts as follows:
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       On September 11, 2018, [Appellant] entered into a negotiated
       guilty plea for two (2) years of reporting probation on the charge
       of … possession of a controlled substance.[1,2]          The [c]ourt
       specifically advised [Appellant] that before he would be allowed to
       enter the proffered negotiated guilty plea,2 the record needed to
       be clear that [Appellant] understood what he was doing and
       understood the rights he was giving up to proceed by way of a
       negotiated guilty plea.         Thereafter, [the Commonwealth]
       specifically colloquyed [sic] [Appellant] regarding his competency,
       the rights he would be giving up, as well as the consequential
       effects of his plea, and in pertinent parts[,] the following
       transpired:

          [The Commonwealth]: You also understand if you’re on
          probation or parole, this could violate that?

          [Attorney Humble]: My client’s on parole right now, that’s
          why we’re taking the misdemeanor negotiated offer. He’s
          been advised of that.

          [Appellant]: Yeah, my parole is maxed out.

          [The Commonwealth]: Do you understand that if you are
          under supervision … you understand [that] this could violate
          that?

          [Appellant]: Yes.

          [The court]: So you’ve had that conversation with your
          attorney? You do understand this could be a violation?

____________________________________________


1 To support the plea, the Commonwealth related that, on November 17, 2016,
Philadelphia police officers “received information from a confidential informant
in reference to … illegal sales [of] narcotics from … inside the residence of
2642 East Mayfield Street in Philadelphia County. The person associated with
these sales was a Hispanic male named Jose, approximately 30 years old.”
N.T., 9/11/2018, at 16. After further investigations, police “served a search
warrant on [the] 2642 East Mayfield Street [residence] associated with
[Appellant], and within this residence found … .535 grams of marijuana, 13
alprazolam pills, .092 grams of cocaine, .112 grams of oxycodone, and … four
more additional pills of alprazolam.” Id. at 16-17.

2 Attorney Mann did not represent Appellant at the guilty plea colloquy. At
that time, Appellant was represented by Brian Humble, Esq.

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         [Appellant]: Yes[, m]a’am.

      [N.T. at 14].
         2 It should also be noted that as part of the negotiations[,]
         the Commonwealth dismissed the related felony charge of
         possession with intent to distribute and only proceeded on
         the aforementioned misdemeanor charge.

      Finally, at the conclusion of the imposition of the negotiated
      sentence, [Appellant] was advised that he had … ten (10) days to
      withdraw his guilty plea or request reconsideration from the trial
      court, and thirty (30) days to file an appeal to the Superior Court
      on the limited grounds described in the colloquy. [Appellant] did
      not request to withdraw his plea nor did he request
      reconsideration. However, on October 5, 2018, [Appellant, pro
      se,] filed the instant appeal.

Trial Court Opinion (TCO), 2/1/2019, at 1-2 (unnumbered pages; footnote and

most internal citations to record omitted).

      On October 11, 2018, the trial court appointed Attorney Mann to

represent Appellant.   Thereafter, on October 15, 2018, the court ordered

Appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), no later than 21 days from the date of its

order, i.e., November 5, 2018.      On November 5, 2018, Appellant filed a

petition for an extension of time to file his Rule 1925(b) statement, explaining

that the newly-appointed Attorney Mann was still in the process of “putting

together” Appellant’s file, including the relevant notes of testimony that had

not yet been transcribed. See Petition for Extension of Time, 11/5/2018, at

1 (unnumbered pages). Subsequently, on December 5, 2018, Appellant filed




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his Rule 1925(b) statement, raising one issue. The trial court issued its Rule

1925(a) opinion addressing Appellant’s alleged error on February 1, 2019.3

       On March 19, 2019, Attorney Mann filed a petition to withdraw as

counsel and an Anders brief, in which she presented the following issue:
       Whether [Appellant’s] guilty plea was knowing, voluntary, and
       intelligent where[,] although he had maxed out his parole at the
       time of the plea, … his plea counsel did not advise him that
       because the date of the crime occurred while he was still on
       parole, the subsequent conviction would trigger a violation of that
       parole?

Anders Brief at 2.

       Attorney    Mann     concludes     that   this   appeal   is   wholly   frivolous.

Accordingly,
       this Court must first pass upon counsel’s petition to withdraw
       before reviewing the merits of the underlying issues presented by
       [the appellant]. Commonwealth v. Goodwin, 928 A.2d 287,
       290 (Pa. Super. 2007) (en banc).

       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;



____________________________________________


3 Our review of the record does not indicate that the trial court actually granted
Appellant’s request for an extension of time to file his Rule 1925(b) statement,
which renders his Rule 1925(b) statement, filed on December 5, 2018,
untimely. Notwithstanding the late filing of his Rule 1925(b) statement, we
will address the merits of his claim. See Commonwealth v. Burton, 973
A.2d 428, 433 (Pa. Super. 2009) (“[I]f there has been an untimely filing [of
the Rule 1925(b) statement], this Court may decide the appeal on the merits
if the trial court had adequate opportunity to prepare an opinion addressing
the issues being raised on appeal.”).

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         (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. Counsel also must provide a copy of
      the Anders brief to [her] client. Attending the brief must be a
      letter that advises the client of his right 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), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014). After

determining that counsel has satisfied these technical requirements of Anders

and Santiago, this Court must then “conduct a simple review of the record to

ascertain if there appear on its face to be arguably meritorious issues that

counsel, intentionally or not, missed or misstated.”         Commonwealth v.

Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en banc).

      Attorney Mann has failed to comply with these requirements. Namely,

she has failed to attach to her petition to withdraw a copy of her letter to

Appellant informing him of his rights pursuant to Nischan, supra.               See

Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005) (“[T]he

prudent course is to require counsel henceforth to attach to their petition to

withdraw a copy of the letter sent to their client advising him or her of their




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rights.”). As a result, we cannot discern if Attorney Mann properly advised

Appellant of his rights in accordance with Nischan.

       In addition, with respect to her Anders brief, Attorney Mann does not

specifically point us to anything in the record that she believes would arguably

support Appellant’s appeal, despite representing that she has identified for us

testimony that would provide such support.          See Anders Brief at 4-5

(asserting that she has “identified for the Court those issues that counsel has

identified as arguably supporting the appeal and the testimony that would

arguably support them,” and “identified for the Court those issues that

[A]ppellant would have raised on appeal and the testimony that would

arguably support them…”). More troublingly, Attorney Mann also does not

state her reasons for concluding that the appeal is frivolous in light of the

relevant facts of record. She merely asserts that the record supports that

Appellant’s guilty plea was knowing, intelligent, and voluntary without any

discussion of what occurred at the plea colloquy.       See Anders Brief at 6.

Finally, it is unclear whether Attorney Mann provided Appellant with a copy of

her Anders brief, as he is not included in its certificate of service.4

       In light of the foregoing deficiencies, we deny Attorney Mann’s petition

to withdraw. Within 30 days of the filing date of this memorandum, Attorney

Mann shall file an advocate’s brief or a proper Anders brief and petition to



____________________________________________


4 We note that Appellant has not filed any response to Attorney Mann’s petition
to withdraw or Anders brief.

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withdraw. Appellant and the Commonwealth may respond within 30 days of

Attorney Mann’s filing of her brief.

      Petition to withdraw denied. Case remanded with instructions.
Jurisdiction retained.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/5/19




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