J-S79033-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JACKIE S. KAUFFMAN,                        :
                                               :
                       Appellant               :      No. 1170 MDA 2018

         Appeal from the Judgment of Sentence Entered May 11, 2018
                in the Court of Common Pleas of Mifflin County
             Criminal Division at No(s): CP-44-CR-0000653-2016

BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                          FILED FEBRUARY 12, 2019

        Jackie S. Kauffman (“Kauffman”) appeals from the judgment of

sentence entered after a jury convicted her of endangering the welfare of

children (“EWOC”).1 Additionally, counsel for Kauffman, Robert R. Ferguson,

Esquire (“Attorney Ferguson”), has filed a Petition to Withdraw as counsel and

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

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).2 As we conclude

that Attorney Ferguson has failed to comply with the requirements of

Santiago, we deny the Petition to Withdraw and remand for counsel to file




____________________________________________


1   See 18 Pa.C.S.A. § 4304(a)(1).

2 Instead of filing the Petition to Withdraw and Anders Brief as separate
documents, counsel filed a single document.
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either an Anders/Santiago brief that satisfies all of the requirements, or an

advocate’s brief on Kauffman’s behalf.

     Briefly, Kauffman’s conviction arises out of her failure to protect her

minor daughter from being exposed to, and eventually assaulted by, a known

sex offender, Kauffman’s paramour. After a jury found Kauffman guilty of

EWOC, the trial court sentenced her to serve one to two years in prison.

Kauffman, through Attorney Ferguson, timely filed a Post-sentence Motion

challenging the sufficiency and weight of the evidence, as well as the

discretionary aspects of sentencing. The trial court denied the Post-sentence

Motion by an Order entered on June 26, 2018.

     Kauffman timely filed a counseled Notice of Appeal, followed by a court-

ordered Pa.R.A.P. 1925(b) Concise Statement of errors complained of on

appeal. In the Concise Statement, Attorney Ferguson announced his intent to

file an Anders brief, and identified that Kauffman wished to pursue her

sufficiency of the evidence and excessiveness of sentencing challenges. The

trial court filed a Pa.R.A.P. 1925(a) Opinion, determining that both of

Kauffman’s identified issues lacked merit. Thereafter, Attorney Ferguson filed

the Petition to Withdraw/Anders Brief. Kauffman did not file a pro se brief or

respond to the Petition to Withdraw/Anders Brief.

     We must first address Attorney Ferguson’s Petition to Withdraw before

reaching the merits of the issues raised in the Anders Brief.            See

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en


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banc) (stating that “[w]hen 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.”).

      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; (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 (emphasis added); see also id. at 360 (stating,

“we hold that a discussion of counsel’s reasons for believing that the client’s

appeal is frivolous is mandatory and must be included in counsel’s brief.”)




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(emphasis added).3 This Court has stated that the above-listed requirements

are “stringent, and with good reason. A defendant has a constitutional right

to a direct appeal, see Pa. Const. Art. I, § 9, and a constitutional right to

counsel for [her] direct appeal.” Commonwealth v. Orellana, 86 A.3d 877,

881 (Pa. Super. 2014) (some citations and brackets omitted).

       Here, though Attorney Ferguson states in his Argument section that

Kauffman wishes to raise a sufficiency challenge and excessiveness of

sentence challenge, nowhere does he (1) state his reasons for determining

that these claims are frivolous; or (2) refer to anything in the record that he

believes arguably supports the appeal, in violation of Santiago.             See

Santiago, supra.         Accordingly, we deny Attorney Ferguson’s Petition to

Withdraw without prejudice, and remand so that Attorney Ferguson may

comply with Santiago, or file an advocate’s brief.


____________________________________________


3The Santiago Court explained why it is important that counsel articulate his
or her reasons for concluding that an appeal is frivolous as follows:

       We are persuaded that requiring counsel to articulate the basis for
       his or her conclusion of frivolity will advance the twin functions
       counsel’s Anders brief is to serve, i.e., it will assist the
       intermediate appellate courts in determining whether counsel has
       conducted a thorough and diligent review of the case to discover
       appealable issues and whether the appeal is indeed frivolous. …
       [T]he task of articulating reasons can shed new light on what may
       at first appear to be an open-and-shut issue. It can also reveal to
       counsel previously unrecognized aspects of the record or the law
       and thereby provide a safeguard against a hastily-drawn or
       mistaken conclusion of frivolity.

Santiago, 978 A.2d at 360-61 (internal citations omitted).

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     Petition to withdraw denied. Case remanded with direction that counsel

file either an Anders/Santiago brief or an advocate’s brief within sixty days

of the date of this Memorandum. Panel jurisdiction retained.

     Judge Shogan joins the memorandum.

     Judge Olson files a dissenting memorandum.




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