J-S64003-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                                OF
                                                           PENNSYLVANIA


                        v.

    LESLIE M. FULTZ

                             Appellant                  No. 798 MDA 2017


              Appeal from the Judgment of Sentence April 13, 2017
                 In the Court of Common Pleas of Mifflin County
              Criminal Division at No(s): CP-44-CR-0000283-2016


BEFORE: PANELLA, J., SHOGAN, J., and FITZGERALD, J. 

MEMORANDUM BY PANELLA, J.                        FILED NOVEMBER 09, 2017

        Appellant, Leslie M. Fultz, appeals from the judgment of sentence

entered on April 13, 2017, in the Mifflin County Court of Common Pleas.

Additionally, Fultz’s counsel-of-record, Stuart A. Cilo, Esquire, has filed a

petition to withdraw from representation, and a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009). We affirm the judgment of sentence and grant Attorney

Cilo permission to withdraw.

        On March 21, 2016, Fultz was charged through a criminal complaint with

driving under the influence. Subsequent to a motion in limine filed pursuant

to the holding in Birchfield v. North Dakota, 136 S.Ct. 2160 (2016), the

____________________________________________


   Retired Justice assigned to the Superior Court.
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trial court reduced Fultz’s charge to one count of general impairment.

Following a bench trial, the trial court convicted Fultz and sentenced him to a

period of one to six months’ imprisonment. This timely appeal follows.

       Prior to addressing the merits of Fultz’s requested appeal, we must first

examine Attorney Cilo’s request to withdraw. The Pennsylvania Supreme

Court has articulated the procedure to be followed when court-appointed

counsel seeks to withdraw from representing an appellant on direct appeal.

       [I]n the Anders brief that accompanies court-appointed counsel’s
       petition to withdraw, counsel 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 arguably believes 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. Once counsel has met his obligations, “it then

becomes the responsibility of the reviewing court to make a full examination

of the proceedings and make an independent judgment to decide whether the

appeal is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5 (citation

omitted).

       Attorney Cilo has substantially complied with all of the requirements of

Anders as articulated in Santiago.1 Additionally, Attorney Cilo confirms he

sent a copy of the Anders brief as well as a letter explaining to Fultz that he

____________________________________________


1Attorney Cilo has failed to highlight Fultz’s issue on appeal in the “Statement
of Questions Involved” section of his brief. However, Fultz’s issue is clear upon
a reading of the brief.

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J-S64003-17



has the right to proceed pro se or the right to retain new counsel. A copy of

the letter is appended to the Anders brief and his petition to withdraw as

counsel. See Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super.

2010); Commonwealth v. Millisock, 873 A.2d 748, 749 (Pa. Super. 2005).

Fultz did not file a response.

       Counsel has identified one issue Fultz believes entitles him to relief. Fultz

wishes to challenge the trial court’s decision to hold a bench trial, despite

Fultz’s request for a jury trial.

       Similar to the Sixth Amendment of the United States Constitution,

Article 1, Section 9 of the Pennsylvania Constitution provides criminal

defendants the right to a jury trial. See Pa. Const. art. I § 9. However,

       both [the] U.S. Constitution and Article I, Section 9 of the
       Pennsylvania Constitution only guarantee a defendant a right to a
       jury trial for “serious offenses,” or crimes which carry more than
       a six month maximum prison sentence. In contrast, crimes that
       carry a maximum of six months’ imprisonment or less are
       considered “petty offenses” for which there is no right to a jury
       trial.

Commonwealth v. Langley, 145 A.3d 757, 760 (Pa. Super. 2016) (citing

Commonwealth v. Mayberry, 327 A.2d 86, 89 (Pa. 1974)). Fultz’s charge

of general impairment carried a maximum sentence of six months

imprisonment. See 75 Pa.C.S.A. § 3803(a)(1). Thus, he was not entitled to a

jury trial.




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J-S64003-17



     After examining the issues contained in the Anders brief and

undertaking our independent review of the record, we concur with counsel’s

assessment that the appeal is wholly frivolous.

     Judgment of sentence affirmed. Petition to withdraw as counsel granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/9/2017




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