J-A30044-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                Appellee                  :
                                          :
                  v.                      :
                                          :
BRIAN KURT BANTUM,                        :
                                          :
                Appellant                 :      No. 1476 WDA 2017

          Appeal from the Judgment of Sentence August 31, 2017
              in the Court of Common Pleas of Blair County
           Criminal Division at No(s): CP-07-CR-0002204-2016

BEFORE:    SHOGAN, J., KUNSELMAN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                 FILED OCTOBER 04, 2019

     Brian Kurt Bantum (Appellant) appeals from the August 31, 2017

judgment of sentence imposed after a jury convicted him of person not to

possess a firearm, theft by unlawful taking, receiving stolen property, and

disorderly conduct.    Counsel for Appellant has filed a petition to withdraw

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

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

deny counsel’s petition to withdraw.

     On January 10, 2019, we remanded this case for (1) the trial court to

rule on Appellant’s weight-of-the-evidence claim under the correct standard

of review; (2) the trial court to appoint new counsel for Appellant; and (3)

new counsel to ensure the inclusion of necessary materials in the certified




*Retired Senior Judge assigned to the Superior Court.
J-A30044-18


record. See Commonwealth v. Bantum, ___ A.3d ___, 2019 WL 156558

(Pa. Super. 2019) (unpublished memorandum).

     On January 15, 2019, the trial court issued a supplemental opinion,

appointed new counsel, Attorney Edward Zang,1 and ensured the inclusion of

necessary materials in the certified record. On appeal, Attorney Zang filed

an Anders brief. However, upon review, this Court concluded that Attorney

Zang failed to comply substantially with the technical requirements set forth

in Anders and Santiago.      Specifically, counsel did not file a petition to

withdraw with this Court, provide a copy of said petition to Appellant, or

advise Appellant “of the right to retain new counsel, proceed pro se or raise

any additional points worthy of this Court’s attention.” Commonwealth v.

Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (citation              omitted).

Therefore, on August 5, 2019, this Court directed “Attorney Zang to file

either an advocate’s brief or a compliant Anders brief and petition to

withdraw, along with an accompanying letter advising Appellant of his

rights[.]” Commonwealth v. Bantum, ___ A.3d ___, 2019 WL 3545959

(Pa. Super. 2019) (unpublished memorandum at 3) (emphasis in original).

     On September 9, 2019, Attorney Zang filed an Anders brief, along

with a petition to withdraw as counsel and an accompanying letter to



1 Accordingly, this Court granted Attorney Mark Zearfaus’s motion to
withdraw as counsel. Per Curiam Order, 3/7/2019.




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Appellant. As such, we once again set forth the technical requirements for

counsel seeking to withdraw on appeal pursuant to Anders.

     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).

Wrecks, 931 A.2d at 720-21 (emphasis added).

     In his letter to Appellant, Attorney Zang advised Appellant as follows.

           If said petition [to withdraw] is granted, you will have the
     right to hire legal counsel of your choosing. You may also
     choose to continue your appeal by representing yourself, or may
     ask the [c]ourt (specifically Judge Sullivan) to appoint new
     counsel for you. Please understand the [c]ourt is not required to
     appoint new counsel but may do so if it chooses.

Attorney Zang’s Letter to Appellant, 9/9/2019, at 2 (unnumbered).

     Attorney Zang’s letter to Appellant provides vague, misleading, and

hypothetical advice to Appellant regarding his rights. As such, we conclude

that counsel has once again failed to comply with the technical requirements

set forth above by failing to provide clear advice to Appellant of his




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immediate right to proceed pro se or with privately retained counsel to raise

any additional issues Appellant deems worthy of this Court’s review.

     Accordingly, we deny counsel’s petition to withdraw and direct

Attorney Zang, within ten days of the filing of this memorandum, to file

either an advocate’s brief or a compliant Anders brief, petition to withdraw,

and accompanying letter, which fully advises Appellant of his present and

immediate right, either pro se or with privately-retained counsel, to file a

brief with this Court raising any issues Appellant deems worthy of review.

     Petition to withdraw denied. Panel jurisdiction retained.




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