J-S39030-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CLINTON ALLEN GEIST                        :
                                               :
                       Appellant               :    No. 1621 MDA 2017

          Appeal from the Judgment of Sentence September 13, 2017
     In the Court of Common Pleas of Lycoming County Criminal Division at
                       No(s): CP-41-CR-0002198-2016


BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.

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

        Clinton Allen Geist (Appellant) appeals from the judgment of sentence

imposed after he pled guilty to possession of a controlled substance (heroin)

and possession of drug paraphernalia.1             Additionally, Appellant’s counsel,

Matthew Welickovitch, Esq. (Counsel), seeks to withdraw from representation

pursuant to Anders v. California, 386 U.S. 738 (1967) and Commonwealth

v. Santiago, 978 A.2d 349, 361 (Pa. 2009). After careful review, we deny

Counsel’s petition to withdraw and remand for further action by Counsel.

        The facts and procedural history of Appellant’s convictions are not

necessary to our disposition. We only note that Appellant filed a timely notice

of appeal from the imposition of his sentence on October 12, 2017. On April

27, 2018, Counsel filed with this Court an “Application to Withdraw as

____________________________________________


1   35 P.S. §§ 780-113(a)(16), (32).
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Counsel,” and Anders brief. Counsel asserted that Appellant seeks to raise

the following question for our review: “WHETHER THE COURT ERRED IN

ACCEPTING APPELLANT’S GUILTY PLEA WHEN APPELLANT WAS UNDER A

STATE   OF    APPARENT     INTOXICATION;     WHEATHER       THAT   PLEA    WAS

VOLUNTARY       AND      UNDERSTANDINGLY          TENDERED       GIVEN     THE

CIRCUMSTANCES.” Anders Brief at 3 (unnumbered pages). According to

Counsel, this claim is frivolous, and Counsel cannot identify any other non-

frivolous issues to present on appeal.

      Preliminarily, “[t]his 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       following

requirements:

      (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 conclusions that the appeal is frivolous; and (4) state
      counsel’s reasons for concluding that the appeal is frivolous.

Commonwealth v. Dempster, --- A.3d ----, 2018 WL 2111634, at *3 (Pa.

Super. 2018). Counsel must also provide a copy of the Anders brief to his

client. With the brief, counsel must include 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

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

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

appeal denied, 936 A.2d 40 (Pa. 2007)). After determining that counsel has

satisfied the technical requirements of Anders/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.” Dempster, 2018 WL 2111634, at *4.

       Here, we are constrained to conclude that Counsel failed to satisfy the

technical requirements for withdrawal. While Counsel advised Appellant of his

rights under Nischan to proceed pro se or retain private counsel, Counsel’s

application to withdraw and his Anders brief do not indicate service on

Appellant. Specifically, the withdrawal petition does not contain any proof of

service on Appellant. Likewise, although the Anders brief contains a proof of

service, it lists a different appellant’s name as having been served via first

class mail.2 In light of this record, it is unclear whether Appellant has been

provided with Counsel’s Anders brief or petition to withdraw.

       Therefore, we are compelled to deny Counsel’s petition to withdraw.

Within 21 days of the filing date of this memorandum, Counsel shall file with

this Court proof that he has served upon Appellant: (1) Counsel’s petition to

withdraw; and (2) Counsel’s Anders brief. Appellant shall then have 30 days



____________________________________________


2We also note that, to date, Appellant has not filed any response to Counsel’s
petition to withdraw or Anders brief.

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from the date on which Counsel files that proof of service in this Court to file

a response.

      Petition to withdraw denied.        Case remanded with instructions.

Jurisdiction retained.




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