J-S63005-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    ERNESTO FONTANEZ                           :
                                               :
                       Appellant               :      No. 2428 EDA 2018

         Appeal from the Judgment of Sentence Entered June 18, 2018
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0005937-2016


BEFORE:      GANTMAN, P.J.E., MURRAY, J., and STRASSBURGER, J.*

MEMORANDUM BY GANTMAN, P.J.E.:                      FILED DECEMBER 18, 2019

        Appellant, Ernesto Fontanez, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his bench

trial convictions for conspiracy, simple assault, possessing instruments of

crime (“PIC”), and theft by unlawful taking.1 For the following reasons, we

grant counsel’s petition to withdraw in favor of the appointment of new

counsel and remand with instructions.

        The relevant facts and procedural history of this case are as follows. On

April 9, 2018, the court convicted Appellant of conspiracy, simple assault, PIC,

and theft by unlawful taking. Appellant’s convictions stem from an incident


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*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 903; 2701(a)(1); 907; 3921(a), respectively.
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on April 3, 2016, where Appellant and his cohorts strangled Victim, punched

her in the face, threatened her at gunpoint, and took her cell phone and

money. The court sentenced Appellant on June 18, 2018, to an aggregate

term of 11½ to 23 months’ imprisonment, plus 3 years’ probation. On July

18, 2018, Appellant filed a pro se notice of appeal2 but mistakenly filed it in

the Supreme Court. The Supreme Court transferred the appeal to this Court

on August 16, 2018.          On August 20, 2018, the court ordered a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b)

and served the Rule 1925(b) order on counsel of record.          Counsel did not

respond to the court’s order.          In its opinion, the trial court deemed any

appellate issues waived for failure to comply with the court’s Rule 1925(b)

order.

       As a preliminary matter, appellate counsel seeks to withdraw his

representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct.

1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Santiago, 602 Pa. 159,

978 A.2d 349 (2009). Anders and Santiago require counsel to: 1) petition

the Court for leave to withdraw, certifying that after a thorough review of the



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2Appellant was still represented by trial counsel at the time. The record does
not indicate if the clerk of courts forwarded the notice of appeal to counsel in
compliance with Pa.R.Crim.P. 576(A)(4) (explaining that in any case in which
defendant is represented by attorney, if defendant submits for filing any pro
se document, clerk of courts shall accept it for filing, time stamp it with date
of receipt, and forward copy of time stamped document to defendant’s counsel
of record and attorney for Commonwealth).

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record, counsel has concluded the issues to be raised are wholly frivolous; 2)

file a brief referring to anything in the record that might arguably support the

appeal; and 3) furnish a copy of the brief to the appellant and advise him of

his right to obtain new counsel or file a pro se brief to raise any additional

points the appellant deems worthy of review. Santiago, supra at 173-79,

978 A.2d at 358-61.

       In Santiago, supra, our Supreme Court addressed the briefing

requirements where court-appointed appellate counsel seeks to withdraw

representation:

          Neither Anders nor McClendon3 requires that counsel’s
          brief provide an argument of any sort, let alone the type of
          argument that counsel develops in a merits brief. To repeat,
          what the brief must provide under Anders are references
          to anything in the record that might arguably support the
          appeal.

                                       *       *   *

          … In his brief in the case [here], counsel identified the
          claims that his client asked for inclusion in the brief and cited
          to testimony from the trial that arguably supported those
          claims. Counsel did not, however, advert to his own review
          of the record or flag anything in the record that he himself
          saw as having some chance of prevailing on appeal, but
          which he ultimately rejected as frivolous. Nor did counsel
          state that there were no such references for him to make.
          Without one or the other, we are not assured, as Anders
          requires, that counsel fully performed his duty as [the
          appellant’s] advocate to independently search the record as
          a trained advocate with an eye to uncovering appealable
          error, before concluding that [the appellant’s] appeal was
          frivolous. Under Anders, the right to counsel is vindicated
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3   Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).

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         by counsel’s examination and assessment of the record and
         counsel’s references to anything in the record that arguably
         supports the appeal. The universe of potential claims is not
         limited to those claims and testimony that counsel’s
         unschooled client believes the court should consider.
         Therefore, we hold that the brief counsel presently
         submitted was insufficient.

Santiago, supra at 176-77, 978 A.2d at 359-60. Thus, the Court held:

         [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 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.

Id. at 178-79, 978 A.2d at 361. “Ultimately, then, Anders does not involve

a pointless formalism but, instead, a fruitful protocol, adherence to which not

only facilitates an appellant’s exercise of constitutional rights but also allows

counsel to prove to this Court the appellant has been afforded those rights.”

Commonwealth v. Woods, 939 A.2d 896, 899 (Pa.Super. 2007).

      Instantly, counsel’s Anders brief is woefully deficient. At the outset,

counsel does not set forth any argument on Appellant’s behalf. In the one-

page “argument” section, counsel states he “will set forth the issue [A]ppellant

believes might have arguable merit but which counsel believes is frivolous and

discuss why counsel believes the issue is frivolous in accordance with

Santiago, supra.” (Anders Brief at 6). Yet, counsel does not identify or

discuss any issue.     Counsel ends the “argument” paragraph by stating

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Appellant has not communicated to counsel any specific grounds for appeal.

Then, in the conclusion section of the brief, counsel suggests Appellant wanted

to challenge the denial of a suppression motion.4 (See id. at 6-7). The brief

is internally inconsistent in this regard. Even if Appellant did not articulate a

specific claim he wanted to pursue, counsel was still obligated to conduct an

independent examination and assessment of the record and refer to anything

of record that might arguably support the appeal. See Santiago, supra.

       Further, counsel provides no reasons to support his conclusion that the

appeal is frivolous. See id. Counsel cites the law from Santiago requiring

him to state reasons for concluding why the appeal is frivolous and to

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 but simply

fails to adhere to these legal principles. As well, in the absence of certain

suppression-related documents from the certified record, we question how

counsel could have fulfilled his duty to review the entire record for any non-

frivolous issues.       See Commonwealth v. Flowers, 113 A.3d 1246

(Pa.Super. 2015) (explaining counsel failed to assess whether any non-



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4 The record confirms Appellant filed an omnibus pre-trial motion on January
11, 2018, seeking suppression of evidence for lack of probable cause to
support Appellant’s arrest and dismissal of the charges under Pa.R.Crim.P.
600. The parties argued, and the court expressly denied, Appellant’s Rule 600
motion immediately before trial. The certified record does not contain any
transcript relative to suppression or the court’s ruling on the suppression
motion.

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frivolous issues existed in connection with appellant’s guilty plea absent

transcript in record from guilty plea proceeding; holding counsel failed to fulfill

his obligations under Anders where he did not review complete record). Here,

the brief does not demonstrate even the bare minimum of a conscientious

review of the record or inspire confidence in counsel’s conclusion the appeal

is frivolous. See Woods, supra. The Commonwealth agrees the Anders

brief is deficient and does not oppose a remand.

      Additionally, the record makes clear the court served its Rule 1925(b)

order on counsel, but counsel did not respond.            This failure ordinarily

constitutes per se ineffectiveness and requires a remand.          See Pa.R.A.P.

1925(c)(3) (stating if appellant represented by counsel in criminal case was

ordered to file concise statement and failed to do so or filed untimely

statement such that appellate court is convinced that counsel has been per se

ineffective, and trial court did not file opinion, then appellate court may

remand for appointment of new counsel, filing of statement nunc pro tunc,

and preparation and filing of opinion by judge); Commonwealth v. Burton,

973 A.2d 428 (Pa.Super. 2009) (en banc) (holding counsel’s complete failure

to file court-ordered Rule 1925(b) statement is per se ineffectiveness);

Commonwealth v. Scott, 952 A.2d 1190 (Pa.Super. 2008) (recognizing

amendment to Rule 1925 relaxed automatic waiver rule in criminal cases,

stating counsel’s complete failure to file court-ordered Rule 1925(b) statement

is presumptively prejudicial).


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       In lieu of filing a Rule 1925(b) statement, counsel could have filed a

statement of intent to file an Anders brief. See Pa.R.A.P. 1925(c)(4) (stating

in criminal case, counsel may file of record and serve on judge statement of

intent to file Anders/Santiago brief, in lieu of filing concise statement);

Pa.R.A.P. 1925(c)(4), Note (explaining that even lawyers seeking to withdraw

under Anders/Santiago are obligated to comply with appellate rules of

procedure). The trial court, however, received nothing in response to its Rule

1925(b) order, so it deemed all appellate issues waived. Counsel’s complete

failure to respond to the court’s Rule 1925(b) order constitutes per se

ineffectiveness.       See     Burton,     supra;   Scott,   supra.   See   also

Commonwealth v. McBride, 957 A.2d 752 (Pa.Super. 2008) (explaining

counsel’s filing of Anders brief on appeal did not relieve counsel of obligation

to file either Rule 1925(b) or Rule 1925(c)(4) statement; remanding for filing

of Rule 1925(b) or Rule 1925(c)(4) statement nunc pro tunc, within 30 days).

       Under these circumstances, we remand this case for the appointment of

new appellate counsel within 10 days of the filing date of this decision. New

counsel must promptly review the entire record,5 consult with Appellant about

the issues he wants to raise on appeal, and file and serve a Rule 1925(b) or

Rule 1925(c)(4) statement nunc pro tunc within 30 days of counsel’s



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5New counsel must complete the certified record with any transcript from the
court’s hearing on the suppression motion and the court’s suppression
decision, so that counsel and this Court will have the entire record to review.

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appointment. Upon proper filing and receipt of the concise statement nunc

pro tunc, the trial court shall have 30 days to prepare a supplemental opinion.

After the court certifies its decision and returns the record to this Court, the

Prothonotary shall establish a new briefing schedule and assign the appeal to

the next available submit panel in the Eastern District.       Accordingly, we

remand the case with instructions.

      Case remanded with instructions.       Petition to withdraw as counsel

granted in favor of the appointment of new counsel. Jurisdiction is retained.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/18/19




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