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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  :      IN THE SUPERIOR COURT OF
                                              :            PENNSYLVANIA
                     v.                       :
                                              :
JUSTIN SCOTT DIGNARD,                         :         No. 1629 WDA 2017
                                              :
                           Appellant          :


             Appeal from the Judgment of Sentence, August 9, 2016,
                in the Court of Common Pleas of Venango County
                Criminal Division at No. CP-61-CR-0000143-2016


BEFORE: OLSON, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                         FILED JUNE 6, 2018

         Appellant, Justin Scott Dignard, appeals from the August 9, 20161

judgment of sentence following his convictions for robbery—threat of serious

bodily    injury   and    robbery   (felony   2).2     Matthew   C.   Parson,   Esq.

(“Attorney Parson”), has filed an application to withdraw, alleging that the




1 Appellant’s trial counsel did not appeal the August 9, 2016 judgment of
sentence. Appellant’s appeal rights were reinstated in a Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, proceeding. Appellant’s
appellate counsel mistakenly stated that he appealed to this court from the
order of October 2, 2017, which granted the PCRA petition. Appellant’s
appeal properly lies from the judgment of sentence, dated August 9, 2016.
The caption originally stated that the appeal was from the PCRA order. We
have amended the caption accordingly.

2   18 Pa.C.S.A. §§ 3701(a)(1)(ii) and 3701(a)(1)(v), respectively.
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appeal is frivolous, accompanied by an Anders brief.3       Upon review, we

deny counsel’s application to withdraw and remand for either a compliant

Anders/Santiago brief or an advocate’s brief.

      The relevant factual background and procedural history as found by

the trial court is as follows:

             The above-captioned cases arise out of two armed
             robberies of businesses located in Oil City,
             Pennsylvania, occurring on December 30, 2011 and
             June 1, 2012, respectively.     [Appellant] eluded
             authorities for a lengthy period of time, but was
             eventually arrested . . . .

             [Appellant] signed a plea agreement dated June 2,
             2016, in which he pled guilty to Count 2, Robbery-
             Threat of Serious Bodily Injury (Felony 1) at
             CR No. 143-2016, and Count 1, Robbery (Felony 2)
             at CR No. 142-2016.           The Commonwealth
             recommended [appellant] serve standard range
             sentences at both counts and that they be served
             concurrently.

             Prior to sentencing, [appellant] underwent a
             pre-sentence investigation and his prior record score
             was calculated as being a three (3). The guidelines
             called for a sentence of fifteen (15) to
             twenty-one (21) months, and the statutory minimum
             and maximum sentences were sixty (60) to one
             hundred and twenty (120) months at Count 1,
             Felony 2 Robbery.      The guidelines called for a
             sentence of forty-two (42) to fifty-four (54) months,
             and the statutory minimum and maximum sentences
             were one hundred and twenty (120) to two hundred
             and forty [240] months at Count 2, Felony 1
             Robbery-Threat of Serious Bodily Injury.




3See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).


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          On August 9, 2016, [appellant] was sentenced by
          this Court at CR No. 142-2016 on Count 1, Felony 2
          Robbery as follows:

               pay the costs of prosecution, all other
               costs, pay a fine $0 in order to facilitate
               restitution, make restitution payable to
               the Clerk of Court[s] of Venango County,
               in the sum of $900, for the use of Leroy
               and Elizabeth George, said restitution
               shall be paid in ten (10) years and is a
               condition of sentence, and undergo an
               imprisonment in a STATE INSTITUTION
               OF THE DEPARTMENT OF CORRECTIONS
               for a minimum of which shall be
               twenty-one (21) months, the maximum
               of which shall be ten (10) years.

          Judge Boyer’s August 9, 2016 Amended          Sentence
          Order (emphasis in original). In the same     sentence
          order, [appellant] was sentenced by this      Court at
          CR No. 143-2016 on Count 2, Felony 1          Robbery-
          Threat of Serious Bodily Injury as follows:

               pay the costs of prosecution, all other
               costs, pay a fine $0 in order to facilitate
               restitution, make restitution payable to
               the Clerk of Court[s] of Venango County,
               in the sum of $6,130, for the use of
               Thorne’s Market, 809 Grandview Road,
               Oil City, Pennsylvania, 16301 (Said
               Restitution shall be joint and several with
               codefendant,      Adrian     Dignard     at
               C.R. No. 78-2016.) said restitution shall
               be paid with [sic] ten (10) years and is a
               condition of sentence, and undergo an
               imprisonment in a STATE INSTITUTION
               OF THE DEPARTMENT OF CORRECTIONS
               for a minimum of which shall be
               forty-two (42) months, the maximum of
               which shall be twenty (20) years.

          Id. (emphasis in original). The Court stated that the
          sentences imposed at CR No. 142-2016 and


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              CR No. 143-2016 were to be served concurrently.
              Id.

              [Appellant] filed a timely notice of appeal, and
              [appellant] filed the instant Concise Statement on
              November 17, 2017.[4]

Trial court opinion, 12/8/175 at 1-3.

         Appellant raises the following issue for this court’s review: “Whether

the Sentencing Court erred as a matter of law or abused its discretion when

the Sentencing Court ordered a Sentence to the maximum of the statute for

the sole basis of ensuring restitution was paid in full[?]” (Appellant’s brief

at 5.)

         On February 18, 2018, Attorney Parson filed in this court a motion to

withdraw as counsel, because he found the appeal to be “wholly frivolous,”

and an Anders brief.      (Petition for leave to withdraw as counsel, 2/16/18

at 1, ¶ 4 (emphasis in original).)

              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).


4 Appellant filed for reinstatement of his appeal rights due to ineffective
assistance of counsel under the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-9546. On October 2, 2017, the trial court granted the
PCRA petition and ordered Attorney Parson, appellant’s PCRA counsel, to file
a direct appeal on behalf of appellant from the judgment of sentence.
Attorney Parson filed the notice of appeal on October 26, 2017.

5 The trial court filed an opinion pursuant to Pa.R.A.P. 1925(a) on
December 8, 2017.


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               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 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 additional
                    points worthy of the Court’s
                    attention.

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

               There are also requirements as to the
               precise requirements of an Anders brief:

                    [T]he Anders brief that
                    accompanies court-appointed
                    counsel’s    petition    to


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                       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 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.

           Id. at 1248. If this Court determines that appointed
           counsel has met these obligations, it is then our
           responsibility “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 1248. In so doing, we review not only the
           issues identified by appointed counsel in the Anders
           brief, but examine all of the proceedings to “make
           certain that appointed counsel has not overlooked
           the existence of potentially non-frivolous issues.”
           Id.

Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).

     Regarding the requirements of Anders, Attorney Parson has filed a

petition that avers that, after a conscientious examination of the record, he

finds the appeal to be wholly frivolous.     He has also filed a brief which

attempts to set forth the issues that might arguably support the appeal.



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However, while he identifies the issue in the statement of questions involved

in the brief as “Whether the Sentencing Court erred as a matter of law or

abused its discretion when the Sentencing Court ordered a Sentence to the

maximum of the statute for the sole basis of ensuring restitution was paid in

full” (Anders brief at 5), the corresponding heading in the argument section

of his brief states, “Whether the Sentencing Court erred as a matter of law

or abused its discretion when the Sentencing Court failed to run [appellant’s]

two   Venango    County    sentences    and   the   Clarion   County   sentence

concurrently.” (Anders brief at 7.) The body of the argument section of the

brief does address the issue contained in the statement of questions

involved, so the issue set forth in the brief is in compliance with Anders. A

review of the record reveals that Attorney Parson complied with the

requirements of Anders concerning notification to appellant.

      With respect to the requirements of Santiago, Attorney Parson has

provided a summary of the procedural history and facts, although technically

he does not comply with this requirement, as there are no citations to the

record, and he has referred to the trial court’s statement at sentencing that

the length of sentence was because appellant also had to pay restitution.

However, Attorney Parson has failed to comply with the third and fourth

requirements of Santiago. Attorney Parson has not set forth in his brief the

conclusion that the appeal is frivolous, and he has not stated his reasons for

concluding that the appeal is frivolous.



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      Due to Attorney Parson’s failure to comply with Santiago, we deny

Attorney Parson’s petition to withdraw as counsel. We remand this case with

instruction to counsel to file either a compliant Anders/Santiago brief or an

advocate’s brief.   Counsel is directed to comply with this directive within

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

may respond within 30 days of counsel’s filing of his brief.

      Application   to   withdraw   as    counsel   denied.    Case   remanded.

Jurisdiction retained.




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