J-S23008-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
                    Appellee               :
                                           :
             v.                            :
                                           :
JAMES REAVIS,                              :
                                           :
                    Appellant              : No. 328 EDA 2014

           Appeal from the Judgment of Sentence January 9, 2014,
                Court of Common Pleas, Philadelphia County,
              Criminal Division at No. CP-51-CR-0010703-2012

BEFORE: DONOHUE, SHOGAN and STRASSBURGER*, JJ.

MEMORANDUM BY DONOHUE, J.:                              FILED MAY 13, 2015

       James Reavis (“Reavis”) appeals from the judgment of sentence

entered on January 9, 2014 by the Court of Common Pleas of Philadelphia

County, Criminal Division following his conviction of terroristic threats. 1

Reavis’ appellate counsel (“Counsel”) seeks to withdraw from representation

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

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). Upon review,

we remand for Counsel to comply with the mandates of Anders or to file an

advocate’s brief.

       There are particular mandates that counsel seeking to withdraw

pursuant to Anders must follow.         These mandates and the significant

protection they provide to an Anders appellant arise because a criminal



1
    18 Pa.C.S.A. § 2706(a)(1).


*Retired Senior Judge assigned to the Superior Court.
J-S23008-15


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).

We have 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 any additional points worthy
             of this Court’s attention.

             If counsel does not fulfill the aforesaid technical
             requirements of Anders, this Court will deny the
             petition to withdraw and remand the case with
             appropriate instructions (e.g., directing counsel
             either to comply with Anders or file an advocate's
             brief on Appellant's behalf).

Id. (citations omitted).

      Presently, Counsel has filed an Anders brief seeking to withdraw from

this case.   However, we conclude that Counsel has failed to satisfy the

requirements of Anders. First, Counsel’s petition to withdraw does not aver

that Reavis’ claims on appeal are wholly frivolous. Instead, Counsel states

only that after a “thorough review of the case” he has concluded that “there

are no meritorious issues to be raised on appeal.” Petition to Withdraw as

Counsel, 10/2/14, ¶ 4. This Court has provided:



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           It should be emphasized that lack of merit in an
           appeal is not the legal equivalent of frivolity.
           Anders appears to rest narrowly on the distinction
           between complete frivolity and absence of merit.
           The latter is not enough to support either a request
           by counsel to withdraw, nor the granting of such a
           request by the court.

                                *      *    *

           Our system of appellate review is based upon the
           notion that an adversarial process will best advance
           the interests of the parties and the development of
           the law. In this process, each side is expected to
           make its best argument(s) and the appellate court
           decides which argument is of greater merit.         It
           appears that unless a position is without question
           defeated by existing caselaw, an appointed counsel
           should advance the best argument he/she is capable
           of constructing and allow the appellate court to make
           the ultimate determination that the argument lacks
           merit. It may be that counsel believes that the
           argument advanced is unlikely to ultimately prevail.
           Nevertheless, this does not mean that the appeal is
           wholly frivolous.

Commonwealth v. Edwards, 906 A.2d 1225, 1231 (Pa. Super. 2006)

(quotations and citations omitted).

     Second, while Counsel has provided copies of his petition to withdraw

and Anders brief to Reavis and informed Reavis of his right to retain new

counsel, Counsel has not advised Reavis of his right to proceed pro se or

raise any additional points worthy of this Court’s attention, despite two

orders from this Court requesting that he do so.      See Letter, 12/5/14;

Order, 12/22/14; Order, 11/10/14.




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      As Counsel has not complied with the requirements of Anders, we

remand this case for Counsel to file an amended petition to withdraw

alleging that the appeal is wholly frivolous or an advocate’s brief within ten

days of the date of the filing of this memorandum. If Counsel chooses to file

an amended petition to withdraw, Counsel must also contemporaneously

inform Reavis of his right to proceed pro se or raise any additional points

worthy of this Court’s attention. Counsel must file proof that he has done so

with this Court. Additionally, if Counsel chooses to file an amended petition

to withdraw, Reavis has twenty days from the date of the filing of the

amended petition to withdraw to file a pro se response if he so chooses.

      Case remanded. Jurisdiction retained.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/13/2015




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