J-S42020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHRISTOPHER EVANS                          :
                                               :
                       Appellant               :   No. 161 MDA 2018

           Appeal from the Judgment of Sentence September 7, 2016
    In the Court of Common Pleas of Lackawanna County Criminal Division at
                       No(s): CP-35-CR-0000494-2016


BEFORE:      BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY McLAUGHLIN, J.:                          FILED AUGUST 28, 2018

        Christopher Evans appeals from the judgment of sentence of 21 to 42

months of imprisonment, imposed on September 7, 2016, following a guilty

plea to one count of Delivery of a Controlled Substance.1             In addition,

appointed counsel, Kurt T. Lynott, Esq., seeks to withdraw his representation

of Evans pursuant to Anders v. California, 386 U.S. 738 (1967). Because

the Anders brief is deficient, we deny counsel’s petition to withdraw and direct

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

        We derive the following statement of facts and procedural background

of this case from the trial court opinion. See Trial Ct. Op., 03/21/2018. In

February 2016, the Olyphant Police Department received information from a

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*    Retired Senior Judge assigned to the Superior Court.

1   35 P.S. § 780-113(a)(30).
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confidential informant (C.I.) that Evans was selling Subutex, a narcotic used

for opioid treatment.    Following an investigation that included a controlled

transaction in which Evans sold the narcotic to the C.I., police arrested Evans.

      In May 2016, Evans pleaded guilty to the delivery charge.        Prior to

entering his plea, Evans executed a written plea colloquy, indicating that he

was aware of the charge, the maximum penalty he was facing, and his

satisfaction with counsel. In addition, the court conducted an oral colloquy to

determine whether Evans was aware of the rights he was relinquishing,

whether he was satisfied with counsel, and whether he admitted to facts

supporting the crime. Thereafter, the court accepted his plea.

      In September 2016, following a presentence investigation, the court

imposed sentence as indicated, which fell within the mitigated range of the

sentencing guidelines. Evans did not file a post sentence motion or a direct

appeal.

      In August 2017, Evans timely and pro se filed a petition pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. In his petition,

Evans claimed ineffective assistance of plea counsel on three, unique grounds:

      (1) Counsel unlawfully induced his plea, promising Evans that he
      would receive a county sentence;

      (2) Counsel failed to request a competency hearing or investigate
      Evans’ mental health; and

      (3) Counsel failed to file a post sentence motion or direct appeal
      to challenge:

          (a) the validity of his plea, and

          (b) legal and discretionary aspects of his sentence.

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See Evans’ PCRA Petition, 08/10/2017, at 3-4. The court appointed Attorney

Lynott as PCRA counsel. In November 2017, Attorney Lynott filed a petition

to withdraw and a no-merit letter.2            However, following an independent

review, the court determined that Evans’ petition warranted relief “wherein

the petitioner was denied an opportunity to file a direct appeal.” PCRA Ct.

Order, 01/09/2018.         Accordingly, the court denied counsel’s petition to

withdraw and reinstated Evans’ right to appeal nunc pro tunc. Id.

       Evans timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement. The court issued a responsive opinion.

       In this Court, Attorney Lynott has filed an Anders brief, asserting two

issues that Evans might seek to raise: (1) whether plea counsel was ineffective

for inducing Evans to plead guilty; and (2) whether plea counsel was

ineffective for failing to request a competency hearing. See Lynott’s Anders

Br. at 4.

       “When 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.”        Commonwealth v. Goodwin, 928 A.2d 287, 290

(Pa.Super. 2007) (en banc). Prior to withdrawing as counsel on direct appeal

under Anders, counsel must file a brief that meets the requirements




____________________________________________


2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

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established by the Pennsylvania Supreme Court in Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009), namely:

     (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.

     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
     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, 879-880 (Pa.Super. 2014).

     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.




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Commonwealth v. Wrecks, 931 A.2d 717, 720–21 (Pa.Super. 2007)

(citations omitted).

       In the instant matter, Attorney Lynott has supplied Evans with a copy

of his Anders brief and a letter explaining the rights enumerated in Nischan.3

However, Attorney Lynott’s Anders brief does not comply with the above-

stated requirements.

       First, though there are references to certain facts relevant to Evans’

claims, the brief contains no general summary of facts. See Lynott’s Anders

Br. at 1. Further, there is not a single citation to the record. See generally

id. Thus, it is not clear that counsel has adequately reviewed this matter.

See, e.g., Commonwealth v. Goodenow, 741 A.2d 783, 786 (Pa.Super.

1999) (recognizing counsel’s sparse recital of the procedural history in his

Anders brief, devoid of references to the record and contextual relevance to

appellant, did not meet the technical requirements of Anders or evidence

counsel’s required review).

       Second, the analysis proceeds in neutral fashion, and counsel does not

articulate why Evans’ claims are frivolous. See Lynott’s Anders Br. at 6-8.

Counsel’s presentation may be a function of the authority cited in his

statement of the standard and scope of review. There, counsel suggests that

an Anders brief “should not resemble a ‘no-merit’ letter or amicus curiae
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3 Though properly addressed to Evans, we note that counsel’s letter begins
with the following salutation, “Dear Mr. Alvarado.” Lynott’s Petition to
Withdraw, 05/10/2018, Letter Attachment. Evans has not filed a response to
counsel’s Anders brief.

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brief.” Id. at 1 (citing in support Commonwealth v. Miller, 715 A.2d 1203

(Pa.Super. 1998)). This Court’s decision in Miller preceded by more than a

decade our Supreme Court’s analysis in Santiago, which set forth “a

significant adjustment in [its] decisional law concerning Anders.” Santiago,

978 A.2d at 361 (modifying the briefing requirements set forth in

Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981)).

       In light of our foregoing analysis, we conclude that counsel’s brief fails

to meet the mandates of Anders, as further clarified in Santiago.

Accordingly, we deny Attorney Lynott’s petition to withdraw without prejudice

to re-file such a petition.

       We remand this case and direct counsel to file, within thirty days of the

date of this memorandum, either an advocate’s brief or a proper Anders brief

and petition to withdraw.4 Thereafter, the Commonwealth shall have thirty

days to respond.

       Petition to withdraw as counsel denied.           Case remanded with

instructions. Jurisdiction retained.




____________________________________________


4 Further, we note the following. In his PCRA petition, Evans asserted
ineffective assistance of counsel for (1) improperly inducing his plea, (2)
failing to request a competency hearing, and (3) failing to file a direct appeal
challenging the validity of his plea and the legality and discretionary aspects
of his sentence. The PCRA court granted relief on the final claim. See PCRA
Ct. Order; see also Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013)
(addressing the limited bases for pursuing claims of ineffective assistance of
counsel on direct appeal).

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