J-S29021-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.0.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA

ROBERT J. O'BRIEN

Appellant : No. 1380 EDA 2018

Appeal from the Judgment of Sentence April 20, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009036-2017

BEFORE: BENDER, P.J.E., LAZARUS, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY LAZARUS, J.: FILED JUNE 24, 2019

Robert J. O’Brien appeals from the judgment of sentence, entered in the
Court of Common Pleas of Philadelphia County, following his convictions of
simple assault, 18 Pa.C.S.A. § 2701, and unauthorized use of an automobile
(UUA), 18 Pa.C.S.A. § 3921. Counsel has filed an Anders? brief and a petition
to withdraw. For the reasons that follow, we deny counsel’s petition to
withdraw, without prejudice, and remand with instructions.

O’Brien entered a negotiated guilty plea to the abovementioned charges
and the court sentenced him to four years’ probation. O’Brien did not file
post-sentence motions. Counsel filed a timely appeal on behalf of O’Brien.

Counsel then filed a Pa.R.A.P. 1925(c)(4) statement of notice of intent to file

 

1 Anders v. California, 386 U.S. 738 (1967).
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a brief pursuant to Anders and Commonwealth v. McClendon, 434 A.2d
1185 (Pa. 1981),2 and a motion to withdraw as counsel for O’Brien.

Before addressing any issue raised on appeal, we must resolve counsel’s
petition to withdraw. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.
Super. 2007) (en banc). An attorney seeking to withdraw on appeal must
comply with certain procedural and briefing requirements. Counsel must:

1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the brief to the [appellant]; and 3) advise the [appellant] that
he or she has the right to retain private counsel or raise additional
arguments that the [appellant] deems worthy of the court’s
attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc) (citation omitted). In addition, our Supreme Court in Commonwealth
v. Santiago, 978 A.2d 349, 361 (Pa. 2009), stated that an Anders 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.

 

2 The trial court did not file an opinion. See Commonwealth v. McBride,
957 A.2d 752, 758 (Pa. Super. 2008) (“If counsel files a statement of intent
to file an Anders/McClendon brief pursuant to Rule 1925(c)(4), a trial court
Opinion is not necessary and the trial court record shall be certified and
transmitted back to this Court.”).

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Santiago, 978 A.2d at 361.

Counsel also must provide the appellant with a copy of the Anders brief,
together with a letter that advises the appellant of his or her right to “(1)
retain new counsel to pursue the appeal; (2) proceed pro se on appeal; or (3)
raise any points that the appellant deems worthy of the [C]Jourt’s attention in
addition to the points raised by counsel in the Anders brief.”
Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007) (citation
omitted). Substantial compliance with these requirements is sufficient.
Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007).

Here, counsel contemporaneously filed his petition to withdraw as
counsel and an Anders brief. In his petition, counsel states that after a
conscientious examination of the record he has determined that the appeal is
wholly frivolous. Petition to Withdraw, 3/14/19, at 9qi 4, 5. Additionally,
counsel states in his petition that he mailed a copy of the brief to O’Brien, and
“advised him of his right to retain new counsel, or to himself raise any
additional points he deems worthy of the Superior Court’s attention.” Id. at
4 8. Counsel's letter to O’Brien, attached to the petition as Exhibit A, states:

Because I filed an Anders brief, YOU HAVE THE RIGHT TO RETAIN

NEW COUNSEL FOR THIS CASE. This would be at your own cost.

YOU ALSO HAVE THE RIGHT TO RAISE ANY ADDITIONAL POINTS

THAT YOU WOULD LIKE THE SUPERIOR COURT TO CONSIDER IN
THIS APPEAL.

Letter, 3/14/19.
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Because this Court assesses the merits of the case immediately
following, and in conjunction with, counsel's request to withdraw, it is
important to inform an appellant of his right to proceed pro se and raise
additional points for our review before this Court examines counsel’s request
to withdraw and the merits of the case. Although a party may not typically
proceed pro se while represented by counsel ( “hybrid representation”), there
is an exception if appellate counsel has filed an Anders brief because that
filing signifies that appellant is effectively without counsel. See
Commonwealth v. Baney, 860 A.2d 127, 129 (Pa. Super. 2004). “Thus,
when conducting an Anders review, this Court will consider not only the brief
filed by counsel but also any pro se appellate brief.” Nischan, 928 A.2d at
353.3. Where an appellant has not been apprised of his right to proceed pro
se following the filing of an Anders brief, the notice is defective. See, e.g.,

Commonwealth v. Bennett, 124 A.3d 327, 330 (Pa. Super. 2015) (counsel

 

3 Nischan explains the proper procedure as follows:

If this Court receives a petition to withdraw and a brief, both
submitted in accord with Anders, and if we are satisfied that
counsel has complied with the three technical Anders
requirements, we will then undertake our own independent
examination of the issues raised in the Anders brief and in any
pro se brief to determine whether we agree with counsel's
assessment that the appeal before us is frivolous. If, after our
review, we determine that the appeal is frivolous, then we will
grant counsel’s petition to withdraw and we will affirm the
judgment of sentence. However, if it appears that there are non-
frivolous issues, we will deny the petition to withdraw and remand
the case with directions that counsel file an advocate’s brief.

Nischan, 928 A.2d at 353-54 (citations omitted).

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incorrectly informed appellant that he was entitled to proceed pro se or with
private counsel if the Superior Court permitted his withdrawal; defect was
cured by a notice sent sua sponte by Superior Court); Commonwealth v.
Millisock, 873 A.2d 748 (Pa. Super. 2005) (notice was defective where
counsel’s letter may have only informed appellant of his right to “new
counsel,” which would imply a right to different court-appointed counsel,
rather than a right to retain new counsel or to proceed pro se).

We conclude that counsel’s Anders brief complied with the
requirements of Santiago. Counsel provided a procedural and factual
summary of the case. Anders Brief, 3/14/19, at 7-12. The Anders brief raises
two possible issues on appeal: whether the sentence imposed was manifestly
excessive and whether the guilty plea was invalid. Id. at 6. Counsel makes
abundantly clear that he believes both claims are waived. Id.

However, we find that counsel failed to provide proper notice. While
counsel sent a copy of the Anders brief to O’Brien, and advised O’Brien in his
letter of his right to retain new counsel or to raise any additional points that
he deems worth of this Court’s attention, he did not specifically advise O’Brien
of his immediate right to proceed with the instant appeal pro se. See Letter,
3/14/19. An appellant has the immediate right to proceed pro se or with
privately retained counsel to raise any additional issues he deems worthy of
review in this Court. This was unclear in counsel’s letter, and it renders

counsel’s letter defective. See Nichan, supra. See also Millisock, supra.
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Accordingly, we deny counsel's petition to withdraw at this time and
direct counsel to file an amended petition to withdraw as counsel in this Court,
within ten days of the filing date of this judgment order, and attach to the
amended withdrawal petition a copy of the amended letter sent to O’Brien,
fully advising him of his immediate right, either pro se or with privately
retained counsel, to file a brief on any additional points he deems worthy of
review. Counsel must also advise O’Brien that he may respond, within 30
days of counsel’s amended letter, to counsel’s Anders brief. The
Commonwealth will then have thirty days to file a responsive brief.4

Petition to withdraw as counsel denied; case remanded with

instructions. Panel jurisdiction retained.

Judgment Entered.

 

Joseph D. Seletyn, Est
Prothonotary

Date: 6/24/19

 

4 In light of this disposition, we dismiss as moot the Commonwealth’s
Application for Nunc Pro Tunc Extension of Time to File Brief for Appellee.” We
also note that the Commonwealth’s brief was due on April 15, 2019 and the
instant application was not filed until May 14, 2019. Accordingly, the
Commonwealth has already received a de facto extension of more than 30
days. We note our continuing disapproval with the ongoing failure of the
Philadelphia Office of District Attorney to file timely briefs in matters before
this Court.

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