J-S74034-14

                             2015 PA Super 69

COMMONWEALTH OF PENNSYLVANIA,           : IN THE SUPERIOR COURT OF
                                        :      PENNSYLVANIA
                 Appellee               :
                                        :
           v.                           :
                                        :
DARNELL FLOWERS,                        :
                                        :
                 Appellant              : No. 1329 EDA 2014

          Appeal from the Judgment of Sentence March 21, 2014,
               Court of Common Pleas, Montgomery County,
             Criminal Division at No. CP-46-CR-0000061-2012


COMMONWEALTH OF PENNSYLVANIA,           : IN THE SUPERIOR COURT OF
                                        :      PENNSYLVANIA
                 Appellee               :
                                        :
           v.                           :
                                        :
DARNELL FLOWERS,                        :
                                        :
                 Appellant              : No. 1330 EDA 2014

          Appeal from the Judgment of Sentence March 21, 2014,
               Court of Common Pleas, Montgomery County,
             Criminal Division at No. CP-46-CR-0004340-2012


COMMONWEALTH OF PENNSYLVANIA,           : IN THE SUPERIOR COURT OF
                                        :      PENNSYLVANIA
                 Appellee               :
                                        :
           v.                           :
                                        :
DARNELL FLOWERS,                        :
                                        :
                 Appellant              : No. 1331 EDA 2014

          Appeal from the Judgment of Sentence March 21, 2014,
               Court of Common Pleas, Montgomery County,
             Criminal Division at No. CP-46-CR-0007596-2011

BEFORE: BENDER, P.J.E, DONOHUE and STRASSBURGER*, JJ.


*Retired Senior Judge assigned to the Superior Court.
J-S74034-14


OPINION BY DONOHUE, J.:                             FILED APRIL 10, 2015

      Darnell Flowers appeals from the judgment of sentence entered

following his convictions of three counts of retail theft, 18 Pa.C.S.A. §

3929(a)(1). His court-appointed counsel (“Counsel”) has filed a motion

seeking permission to withdraw and a brief in support thereof pursuant to

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

Santiago, 978 A.2d 349 (Pa. 2009).          We deny counsel’s request to

withdraw and remand for counsel to take appropriate action in conformance

with our decision.

      We begin with a brief factual and procedural background.     Between

September 2011 and September 2012, the Commonwealth charged Flowers

in three separate incidents with retail theft and other related charges. On

January 28, 2013, Flowers entered an open guilty plea to three counts of

retail theft.   On March 21, 2014, the trial court sentenced Flowers to two

consecutive sentences of eleven and a half to twenty-three months of

imprisonment, to be followed by four years of probation. Flowers filed a

timely post-sentence motion asking the trial court to reconsider his

sentence, which the trial court denied.    Counsel timely filed a notice of

appeal.    In response to the trial court’s directive to file a statement of

matters complained of on appeal, Counsel filed a statement of his intent to




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J-S74034-14


file an Anders brief, pursuant to Pa.R.A.P. 1925(c)(4),1 and identified one

issue that could arguably support an appeal: whether the aggregate

sentence was unduly harsh and excessive, which Flowers also raised in his

post-sentence motion. Concise Statement, 6/10/14. In response, the trial

court authored an opinion discussing the issue Counsel identified and urged

this Court to conclude that it did not amount to a “‘non-frivolous’ claim for

relief.” Trial Court Opinion, 6/30/14, at 3. Counsel then filed his request to

withdraw and Anders brief with this Court.

      The request by appointed counsel to withdraw pursuant to Anders

triggers specific requirements, certain of which apply to appointed counsel

and others to the court to which appointed counsel makes his or her request

for withdrawal.   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 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


1
   “In a criminal case, counsel may file of record and serve on the judge a
statement of intent to file an Anders/McClendon brief in lieu of filing a
Statement. If, upon review of the Anders/McClendon brief, the appellate
court believes that there are arguably meritorious issues for review, those
issues will not be waived; instead, the appellate court may remand for the
filing of a Statement, a supplemental opinion pursuant to Rule 1925(a), or
both. Upon remand, the trial court may, but is not required to, replace
appellant’s counsel.” Pa.R.A.P. 1925(c)(4).


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J-S74034-14


               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.

Id. (citations omitted).

         There are also requirements as to the precise content of an Anders

brief:

               [T]he Anders brief that accompanies court-
               appointed counsel’s petition to withdraw … must: (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.

         If   counsel   has   met   these   obligations,   “it   then   becomes   the

responsibility of the reviewing court to make a full examination of the

proceedings and make an independent judgment to decide whether the

appeal is in fact wholly frivolous.” Id. at 354 n.5.




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J-S74034-14


file an Anders brief, pursuant to Pa.R.A.P. 1925(c)(4),1 and identified one

issue that could arguably support an appeal: whether the aggregate

sentence was unduly harsh and excessive, which Flowers also raised in his

post-sentence motion. Concise Statement, 6/10/14. In response, the trial

court authored an opinion discussing the issue Counsel identified and urged

this Court to conclude that it did not amount to a “‘non-frivolous’ claim for

relief.” Trial Court Opinion, 6/30/14, at 3. Counsel then filed his request to

withdraw and Anders brief with this Court.

      The request by appointed counsel to withdraw pursuant to Anders

triggers specific requirements, certain of which apply to appointed counsel

and others to the court to which appointed counsel makes his or her request

for withdrawal.   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 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


1
   “In a criminal case, counsel may file of record and serve on the judge a
statement of intent to file an Anders/McClendon brief in lieu of filing a
Statement. If, upon review of the Anders/McClendon brief, the appellate
court believes that there are arguably meritorious issues for review, those
issues will not be waived; instead, the appellate court may remand for the
filing of a Statement, a supplemental opinion pursuant to Rule 1925(a), or
both. Upon remand, the trial court may, but is not required to, replace
appellant’s counsel.” Pa.R.A.P. 1925(c)(4).


                                    -3-
J-S74034-14


               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.

Id. (citations omitted).

         There are also requirements as to the precise content of an Anders

brief:

               [T]he Anders brief that accompanies court-
               appointed counsel’s petition to withdraw … must: (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.

         If   counsel   has   met   these   obligations,   “it   then   becomes   the

responsibility of the reviewing court to make a full examination of the

proceedings and make an independent judgment to decide whether the

appeal is in fact wholly frivolous.” Id. at 354 n.5.




                                        -4-
J-S74034-14


             independent determination of the merit of the
             appeal.

McClendon, 434 A.2d at 1188, modified by Commonwealth v. Santiago,

978 A.2d 349 (Pa. 2009) (emphasis added).        Indeed, more recently the

Pennsylvania Supreme Court discussed the contours of appointed counsel’s

obligation in the Anders context and reiterated this exact passage from

McClendon, thereby reinforcing that the overarching purpose of this

bifurcated procedure is to guarantee that counsel has searched the entire

record for any potentially non-frivolous issues.       Commonwealth v.

Santiago, 978 A.2d 349, 358 (Pa. 2009) (discussing McClendon, 434 A.2d

at 1188).3

     Neither the Pennsylvania Supreme Court nor an en banc panel of this

Court has explicitly discussed this issue.   However, this Court’s en banc

decision in Commonwealth v. Goodwin, 928 A.2d 287 (Pa. Super. 2007)

(en banc), indicates that this Court must conduct an independent review of

the record to discern if there are any additional, non-frivolous issues




3
   In footnote five of Santiago, our Supreme Court distinguished the
Anders/McClendon “full examination of all the proceedings” language from
several federal cases indicating that courts are to limit their review to the
issues presented in an Anders brief if the brief “appears adequate on its
face.” Santiago, 978 A.2d at 355 n.5. Our Supreme Court expressly
declined to address the discrepancy between these approaches. Id.
McClendon, therefore, remains binding precedent with respect to the extent
of the reviewing court’s duties in an Anders situation.


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J-S74034-14


overlooked by counsel.4 Goodwin, 928 A.2d at 292-93.                    Additional

Pennsylvania case law is in agreement with this approach.              See, e.g.,

Commonwealth v. James, 46 A.3d 776, 778 (Pa. Super. 2012) (en banc)

(stating   the   history   of   the   case,   which   included   an   unpublished

memorandum decision by a three-judge panel of this Court wherein we

denied counsel’s request to withdraw pursuant to Anders, as the panel

found an issue of arguable merit and remanded the case for the filing of an

advocates brief); Commonwealth v. Zeigler, __ A.3d __ , 2015 WL

1268158 (Pa. Super. March 20, 2015); Commonwealth v. Harden, 103

A.3d 107, 111 (Pa. Super. 2014) (“We now must conduct an independent

review of the record to determine whether the issues identified by Harden in

this appeal are, as counsel claims, wholly frivolous, or if there are any other

meritorious issues present in this case.”); Commonwealth v. Vilsaint, 893

A.2d 753, 755 (Pa. Super. 2006) (“Part and parcel of Anders is our Court’s



4
  In his dissent, Judge Strassburger concludes that this Court’s review of the
record is limited to assessing the issue or issues presented by appointed
counsel in the Anders brief, and cites four cases in support of his
conclusion. Dissenting Opinion at 2-3. None of these cases addresses the
role of this Court when presented with an Anders brief. Judge Strassburger
states that he will continue to adhere to this view until those cases are
overruled. Id. at 4. In Goodwin, an en banc panel of this Court performed
an independent review of the record for any issues of arguable merit,
thereby endorsing the approach we adopt today and implicitly overruling the
approach to which Judge Strassburger ascribes. See Commonwealth v.
Burkholder, 719 A.2d 346, 352 (Pa. Super. 1998) (holding that three-judge
panel is bound by a prior en banc decision of this Court); Pa.R.A.P. 3103
(“An opinion of the court en banc is binding on any subsequent panel of the
appellate court in which the decision was rendered.”).


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J-S74034-14


      Counsel has adequately satisfied the technical requirements of Anders

and Santiago. He has filed a petition seeking to withdraw with this Court, in

which he states his belief that after an examination of the record, the appeal

is wholly frivolous. Attached to that petition is a copy of the letter he sent to

Flowers, which indicates that he enclosed copies of his petition to withdraw

and Anders brief, and advises Flowers that he can retain new counsel or

proceed pro se to raise with this Court any additional points he deems

worthy.   Further, the content of Counsel’s Anders brief conforms to the

Santiago requirements previously set forth.

      We now turn to this Court’s role in the Anders procedure: the

independent review of the record. Binding precedent from the Pennsylvania

Supreme Court and this Court requires that an independent review of the

record include the review of the entire record for any non-frivolous issues.

      To begin, we note that the Anders procedure was created to balance

an indigent appellant’s right to counsel on direct appeal with appointed

counsel’s professional responsibility to not file a frivolous appeal. Anders,

386 U.S. at 739 (“We are here concerned with the extent of the duty of a

court-appointed appellate counsel to prosecute a first appeal from a criminal

conviction, after that attorney has conscientiously determined that there is

no merit to the indigent's appeal.”). In the Anders decision, the United

States Supreme Court directed that when a reviewing court is provided with

a request to withdraw and after determining that counsel fulfilled his or her



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J-S74034-14


duty to review the record to insure no issues of arguable merit have been

missed or misstated.”).

      Accordingly,   we   have   delved   further   than    assessing   just   the

discretionary aspect of sentence issue raised by Counsel and reviewed the

entire record to ensure that there are no other non-frivolous issues present.

As a result, we have determined that the notes of testimony from Flowers’

guilty plea proceeding are not part of the record.5 Without these notes of

testimony, Counsel could not have fulfilled his duty to review the entire

record for any non-frivolous issues. Vilsaint, 893 A.2d at 758 (“[C]ounsel

cannot fulfill the mandates of Anders unless he has reviewed the entire

record.”); see also Santiago, 978 A.2d at 360 (providing that “[u]nder

Anders, the right to counsel is vindicated by counsel’s examination and

assessment of the record” for issues other than those identified by the

appellant).   More specifically, without these notes of testimony, counsel

could not have assessed whether any non-frivolous issues exist in

connection with Flowers’ guilty plea proceeding.           We therefore cannot

conclude that Counsel has fulfilled his obligations pursuant to Anders.

Thus, we deny counsel’s petition to withdraw and remand with instructions

for counsel to obtain the missing notes of testimony and to file an advocate’s




5
  Flowers filed a motion requesting transcripts of both the guilty plea and
sentencing proceedings.        Motion for Transcripts, 4/30/14.   The only
transcript in the record is from the sentencing proceeding.


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