J-A21015-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    EDWARD LEWIS                               :
                                               :
                       Appellant               :   No. 1261 EDA 2017

             Appeal from the Judgment of Sentence March 22, 2017
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0006075-2015


BEFORE: PANELLA, J., OLSON, J., and McLAUGHLIN, J.

MEMORANDUM BY PANELLA, J.:                         FILED SEPTEMBER 10, 2019

        Edward Lewis appeals from the judgment of sentence following his open

guilty plea to possession of marijuana by an inmate, 18 Pa.C.S.A. § 5123, and

conspiracy to commit possession of marijuana by an inmate, 18 Pa.C.S.A.

§ 903.     Lewis asserts that his counseled waiver of any claim of his plea

counsel’s potential conflict of interest was not knowing, voluntary, and

intelligent. Appellate counsel has filed an Anders Brief, and an application to

withdraw.1     We conclude that counsel has substantially complied with the

requirements of Anders and Santiago, and explained why the issue is wholly




____________________________________________


1   See Anders v. California, 386 U.S. 738 (1967).
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frivolous.2   Accordingly, we grant the petition to withdraw and affirm the

judgment of sentence.

       Briefly summarized for background, Pennsylvania State Police arrested

Lewis and his girlfriend, Najeeyah Robinson, after prison officials at SCI

Chester intercepted telephone conversations in which the pair plotted (in

coded language) for Robinson to bring a controlled substance to Lewis, then

an inmate. The arrests stemmed from events which occurred on March 9,

2015. During a pre-visit search at the prison, a state trooper found a wrapped

package of a green leafy substance, later confirmed to be marijuana, hidden

in Robinson’s underwear.

       On October 21, 2016, after both a written and an extensive on-the-

record oral colloquy, the trial court found Lewis’s guilty plea to be knowing,

voluntary, and intelligent and accepted the counseled open guilty plea to the

two charges previously noted.          See N.T., Guilty Plea, 10/21/2016, at 14.

Notably for this appeal, at the hearing Lewis also waived any objection to

representation by a lawyer from the same firm that represented his co-

defendant, Robinson. See id. at 8.

       At the sentencing hearing, on March 22, 2017, Lewis made an oral

motion to withdraw his plea. He was apparently upset that his co-defendant,

who had also pleaded guilty, received a lighter sentence.             See N.T.


____________________________________________


2   See Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).


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Sentencing, 3/22/17, at 4; see also Trial Court Opinion, 1/19/18, at 2 (Lewis

believed he did not get a “good enough deal”).

       After denying Lewis’s motion to withdraw the plea, the court sentenced

him to two concurrent terms of not less than thirty-five nor more than seventy

months of incarceration in a state correctional institution.

       This appeal followed.3 This Court granted Attorney Richard DeSipio’s

April 26, 2017 “Motion to Withdraw as Counsel,” on May 23, 2017, and

directed the trial court to determine if Lewis was eligible for appointed counsel.

See Order, 5/23/17. The trial court complied and in due course, appointed

Richard J. Blasetti, Esq. of the Delaware County Defender’s office to represent

Lewis. Attorney Blasetti filed an Anders brief, and an application to withdraw

as counsel. Lewis did not reply to counsel’s notice and Anders brief.

       The Anders brief contains one claim, which we reproduce verbatim:

       Should this case be remanded because a lawyer from Appellant’s
       Trial Counsel’s firm represented Appellant’s codefendant?

Anders Brief, at 3 (emphasis omitted). Counsel confirms that this question

was not presented to the trial court. See id.




____________________________________________


3The trial court found the notice of appeal to be timely filed. See Trial Court
Opinion, at 1. Lewis filed a Rule 1925(b) statement chiefly claiming three
errors, ineffective assistance of plea counsel, fraud in the initial plea
agreement, and violations of due process. See Statement of Errors, 5/15/17;
see also Pa.R.A.P. 1925.


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      We must first address counsel’s petition to withdraw before reaching the

merits of the issue raised in the Anders brief.       See Commonwealth v.

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

(emphasis added).

      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 his




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direct appeal.” Commonwealth v. Orellana, 86 A.3d 877, 881 (Pa. Super.

2014) (some citations and brackets omitted).

      The 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. . In
      this context, we believe that there is real value in putting pen to
      paper. As the United States Supreme Court has noted, the 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. In addition, we believe that it is often the
      case that the basis for an attorney’s opinion that an appeal is
      frivolous is not readily apparent, and that accordingly, counsel’s
      explanation will significantly assist the courts in passing upon the
      soundness of counsel’s conclusion, which, in turn, vindicates the
      right to counsel.

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

      Here,   Attorney   Blasetti   has   submitted   an   Anders   brief     which

substantially complies with Anders and Santiago. He presented an issue of

arguable merit (both codefendants represented by attorneys from same law

firm). See Anders Brief, at 7-10. However, counsel explains why the claim

is frivolous, in particular because the trial court as well as plea counsel

colloquied Lewis extensively and clearly informed him of the potential risk of

representation by two lawyers from the same firm. The trial court decided

that Lewis’ waiver of the potential conflict was knowing, intelligent and

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voluntary. See N.T., Guilty Plea Hearing, 10/21/16, at 14. Therefore, counsel

has explained his reasons for determining that the claim is frivolous.

      On independent review, we find no other non-frivolous issues that would

support an appeal. Accordingly, we grant counsel’s petition to withdraw, and

affirm the judgment of sentence.

      Petition to withdraw granted. Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/10/19




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