J-S26016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ANTHONY JONES

                            Appellant                No. 3291 EDA 2014


      Appeal from the Judgment of Sentence entered November 28, 2011
             In the Court of Common Pleas of Philadelphia County
               Criminal Division at No: CP-51-CR-0015505-2008


BEFORE: OLSON, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                             FILED JUNE 20, 2016

        Appellant, Anthony Jones, appeals from the judgment of sentence the

Court of Common Pleas of Philadelphia County entered November 28, 2011.

Counsel has filed a brief under Anders v. California, 386 U.S. 738 (1967),

and petitioned to withdraw as counsel, alleging that this appeal is wholly

frivolous.    Upon review, we deny counsel’s application to withdraw as

counsel, and remand this case either for a compliant Anders/Santiago1

brief or an advocate’s brief.

        The trial court summarized the procedural background of the case in

its Rule 1925(a) opinion, which reads:

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
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       The relevant facts regarding the instant appeal are as follows:
       On September 26, 2011, Appellant Anthony Jones [] was found
       guilty in a waiver trial before the Honorable Ellen Ceisler and was
       convicted of [p]ossession of a [f]irearm [p]rohibited.           On
       November 28, 2011, Judge Ceisler sentenced Appellant to a term
       of between three and one half to seven years of imprisonment.
       On July 9, 2012, Appellant filed a timely pro se petition under
       the Post Conviction Relief Act. Appellant was assigned a new
       court appointed attorney, [present counsel], who filed an entry
       of appearance on May 3, 2013.

       On March 6, 2014, Appellant filed an Amended Petition pursuant
       to the Post Conviction Relief Act. On October 30, 2014, Judge
       Ceisler reinstated Appellant’s appeal rights nunc pro tunc. On
       October 31, 2014, this [c]ourt entered an order, pursuant to
       Pa.R.A.P. 1925(b)(1), instructing Appellant to file a concise
       statement of errors complained of on appeal no later than
       twenty-one days after Appellant received notice of said order.

       Appellant failed to file such a concise statement within the
       required twenty-one days; however, on February 24, 201[5],
       [c]ounsel for Appellant did file an untimely statement, pursuant
       to Pa.R.A.P. 1925(c)(4), indicating his intent to file an
       Anders/McClendon[2] brief[.]

Trial Court Opinion, 4/29/14, at 1-2 (footnotes omitted).

       On appeal, Appellant raises the following issue:

       Were any meritorious issues properly raised or preserved in this
       appeal?

Appellant’s Brief at 7.3

       When presented with an Anders brief, this Court may not review the

merits of the underlying issues without first examining counsel’s petition to
____________________________________________


2
    Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981).
3
  A review of the brief reveals that Appellant intended to raise ineffective
assistance of counsel claims (IAC) pertaining to trial counsel.



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withdraw. See Santiago, 978 A.2d at 361; see also Commonwealth v.

Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc).             It is well-

established that, in requesting a withdrawal, counsel must satisfy the

following procedural requirements: 1) petition the court for leave to

withdraw stating that, after making a conscientious examination of the

record, counsel has determined that the appeal would be frivolous; 2)

provide a copy of the brief to the defendant; and 3) advise the defendant

that he or she has the right to retain private counsel, proceed pro se or raise

additional arguments that the defendant considers worthy of the court’s

addition. Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super. 2009).

        Instantly, counsel’s petition to withdraw from representation provides

that counsel reviewed the record and concluded that the appeal is frivolous.

Furthermore, counsel notified Appellant that he was seeking permission to

withdraw and provided Appellant with copies of the petition to withdraw and

his Anders brief. Counsel also advised Appellant of his right to retain new

counsel, proceed pro se, or raise any additional points he deems worthy of

this Court’s attention.   Accordingly, we conclude that counsel has satisfied

the procedural requirements of Anders.

        We next must determine whether counsel’s Anders brief complies with

the substantive requirements of Santiago, wherein our Supreme Court

held:

        [I]n the Anders brief that accompanies court-appointed
        counsel’s petition to withdraw, counsel must: (1) provide a

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       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.           Here, our review of the brief indicates that

counsel has failed to comply with the briefing requirements of Santiago.

       The summary of the procedural history and facts consists of a few

sentences, with no citations to the record, or description of the facts

underlying Appellant’s conviction. Counsel does not refer to anything in the

record that he believes arguably supports the appeal, nor did he state there

are no references for him to make.4 Counsel merely addresses Appellant’s

arguments in support of this appeal (IAC claims), explaining why the issues

have no merit,5 but fails to cite any statute or caselaw “on point that have

led to the conclusion that the appeal is frivolous.” Santiago, 978 A.2d at

361. Counsel also states the IAC claims have no merit because “in most

cases ineffective assistance of trial counsel arguments cannot be brought on

____________________________________________


4
  “Without one or the other, we are not assured, as Anders requires, that
counsel fully performed his duty as [Appellant]’s advocate to independently
search the record as a trained advocate with an eye to uncovering
appealable error, before concluding that [Appellant]’s appeal was frivolous.”
Santiago, 978 A.2d at 360.
5
 Counsel blurs the distinction between “wholly frivolous” and “no-merit”.
See Santiago, 978 A.2d at 358-59.



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direct appeal.”     Appellant’s Brief at 10.   While the statement is generally

true, there is no explanation why the issues raised by Appellant cannot be

addressed at this junction. There are indeed exceptions to the general rule,

both falling within the trial court’s discretion.       See Commonwealth v.

Holmes, 79 A.3d 562, 563-64 (Pa. 2013). Here, the trial court never had a

chance to address the exceptions because it was never apprised of the

issues (counsel filed an untimely Rule 1925(c)(4) statement) and the trial

court’s Rule 1925(a) opinion consists only of the factual and procedural

background, declining to provide any further analysis based on counsel’s

Rule 1925(c)(4) statement (relying on Commonwealth v. McBride, 957

A.2d 752 (Pa. Super. 2008) for the proposition that “[I]f counsel files a

statement of intent to file an Anders/McClendon brief pursuant to Rule

1925(c)(4), a trial court opinion is not necessary.”).

      Due to counsel’s failure to comply with Anders and its progeny, we

deny counsel’s application to withdraw as counsel.         We remand this case

with instruction to counsel to file either a compliant Anders/Santiago brief

or an advocate brief. Counsel is directed to comply with this directive within

30 days of the date of this Memorandum.             Appellant and Commonwealth

may respond within 30 days of counsel’s filing to whatever course of action

is chosen by counsel.

      Application    to   withdraw   as   counsel    denied.   Case   remanded.

Jurisdiction retained.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/20/2016




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