J. A17033/20


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                     v.                    :
                                           :
ROBERT JENKINS,                            :           No. 151 EDA 2020
                                           :
                          Appellant        :


         Appeal from the Judgment of Sentence Entered May 29, 2019,
                 in the Court of Common Pleas of Bucks County
               Criminal Division at No. CP-09-CR-0005669-2018


BEFORE: BOWES, J., McCAFFERY, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                       FILED JUNE 23, 2020

        Robert Jenkins appeals from the May 29, 2019 judgment of sentence

entered by the Court of Common Pleas of Bucks County following his

conviction of robbery, criminal conspiracy to commit robbery, and possessing

instruments of crime.1 Patrick J. McMenamin, Jr., Esq., filed an application to

withdraw his appearance on April 22, 2020, alleging that the appeal is wholly

frivolous, accompanied by an Anders brief.2 After careful review, we deny

Attorney McMenamin’s application to withdraw and remand with instructions.

        The trial court set forth the following procedural history:

              On May 29, 2019, [appellant] entered a guilty plea to
              robbery (threatening another with/intentionally

1   18 Pa.C.S.A. §§ 3701(a)(1)(ii), 903(a), and 907(a).

2See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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             putting another in fear of serious bodily injury), a
             felony of the first degree; criminal conspiracy to
             commit robbery, a felony of the first degree; and
             possessing instruments of crime, a misdemeanor of
             the first degree. Pursuant to a plea agreement
             between [appellant] and the Commonwealth,
             [appellant] was sentenced to a term of incarceration
             of six and a half to fifteen years. [Appellant] did not
             file a timely post-sentence motion or a direct appeal.

             On August 5, 2019, [the trial] court received a letter
             form [appellant,] dated July 31, 2019, requesting
             appointment of counsel to assist him in filing “a
             reconsideration” and to “retract my guilty plea.” Since
             the time for filing post-sentence motions and a direct
             appeal had expired, [appellant’s] letter was treated as
             a request for relief under the Post Conviction Relief
             Act (“PCRA”).[3] On August 19, 2019, PCRA counsel
             was appointed. On November 15, 2019, [the trial]
             court entered an agreed order granting [appellant’s]
             request for PCRA relief and reinstating [appellant’s]
             right to file post-sentence motions and/or a direct
             appeal from the judgment of sentence nunc pro
             tunc.

             On November 25, 2019, [appellant] filed a motion for
             reconsideration of sentence nunc pro tunc. By order
             dated[] November 27, 2019, [appellant’s] motion for
             reconsideration of sentence was denied.

             On December 27, 2019, [appellant] filed [a] notice of
             appeal. On January 7, 2020, [appellant] was directed
             to file a concise statement of matters complained of
             on appeal [pursuant to Pa.R.A.P. 1925(b)].        On
             January 13, 2020, [appellant] filed his [Rule 1925(b)
             statement] challenging the discretionary aspects of
             [his] sentence.




3   42 Pa.C.S.A. §§ 9541-9546.


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Trial court opinion, 2/26/20 at 1-2 (citations, citations to the record, footnote,

and extraneous capitalization omitted).       The trial court filed an opinion

pursuant to Pa.R.A.P. 1925(a) on February 26, 2020.

      Attorney McMenamin filed with this court an Anders brief and an

application to withdraw as counsel on April 22, 2020. On April 28, 2020, this

court entered an order noting that Attorney McMenamin failed to attach a copy

of his letter to appellant explaining appellant’s rights to his application to

withdraw.   (Order of court, 4/28/20 (per curiam).)          This court ordered

Attorney McMenamin to provide a copy of his letter to appellant advising

appellant of his rights. (Id., citing Commonwealth v. Millisock, 873 A.2d

748, 752 (Pa.Super. 2005).) On April 29, 2020, in response to this court’s

order, Attorney McMenamin filed with this court a copy of the letter he sent to

appellant, wherein Attorney McMenamin advised appellant that he has “the

right to represent [him]self or to hire private counsel to represent [him.]”

(Response of appellant’s counsel to the order & rule to show cause, 4/29/20,

Ex. A.)

            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


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                  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 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 any additional points
                        worthy     of   this    Court’s
                        attention.

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

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

      Our review of Attorney McMenamin’s application to withdraw and

supporting documentation reveals that he has not complied with all of the

foregoing requirements. We note that counsel has furnished a copy of the

Anders brief to appellant, advised appellant of his right to retain new counsel

or proceed pro se, and has filed with this court a copy of the letter sent to



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appellant as required under Millisock. See Commonwealth v. Daniels, 999

A.2d 590, 594 (Pa.Super. 2010) (“While the Supreme Court in Santiago set

forth the new requirements for an Anders brief, which are quoted above, the

holding did not abrogate the notice requirements set forth in Millisock that

remain binding legal precedent.”).   Attorney McMenamin’s letter, however,

failed to advise appellant that he may raise other issues before this court.

See Millisock, 873 A.2d at 751 (citation omitted).

     We remand and direct Attorney McMenamin to send appellant a letter,

accompanied by the Anders brief, that complies with the directives of

Commonwealth v. Millisock. Attorney McMenamin shall comply with this

directive within 30 days of the date of the filing of this memorandum.

Appellant may respond within 45 days of receipt of Attorney McMenamin’s

Anders brief and accompanying letter.

     Application to withdraw as counsel denied. Case remanded. Jurisdiction

retained.

Judgment Entered.




JosephD.Seletyn,Esq.
Prothonotary




Date: 6/23/2020




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