J-S38038-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,                 :     IN THE SUPERIOR COURT OF
                                              :           PENNSYLVANIA
                   Appellee                   :
                                              :
                      v.                      :
                                              :
MEGAN V. JEWELL,                              :
                                              :
                   Appellant                  :     No. 109 WDA 2018

           Appeal from the Judgment of Sentence January 5, 2018
     in the Court of Common Pleas of Venango County Criminal Division
                      at No(s): CP-61-CR-0000312-2014
                                CP-61-CR-0000353-2017
                               CP-61-CR-0000366-2017
                               CP-61-CR-0000387-2017

BEFORE:     BOWES, NICHOLS, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:              FILED AUGUST 27, 2018

      Megan V. Jewell (Appellant) appeals from the January 5, 2018 judgment

of sentence of an aggregate term of 32 to 64 months’ incarceration following

the revocation of her probation and after pleading guilty to two counts each

of retail theft and aggravated assault. Counsel has filed a petition to withdraw

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

progeny.   Upon review, we deny counsel’s petition without prejudice and

remand for further proceedings consistent with this memorandum.

      Following her arrest for, inter alia, retail theft, state troopers transported

Appellant to the hospital after she complained that she was experiencing




*Retired Senior Judge assigned to the Superior Court.
J-S38038-18


pain.1    After being examined and released by the attending physician, but

before leaving the hospital, Appellant became violent, striking a state trooper

and attempting to bite medical staff. As a result, Appellant was charged at

docket numbers CP-61-CR-0000353-2017, CP-61-CR-0000366-2017, and CP-

61-CR-0000387-2017 (collectively, “2017 cases”) with, inter alia, two counts

of retail theft and eight counts of aggravated assault.     On September 25,

2017, as part of a plea agreement, Appellant pled guilty to two counts of

aggravated assault and two counts of retail theft.      Plea Agreement Form,

9/28/2017.      The remaining counts were nolle prossed.       A pre-sentence

investigation (PSI) report was ordered and sentencing was deferred. Request

for PSI Report, 9/28/2017.

         Prior to sentencing and based upon Appellant’s new criminal charges,

the Commonwealth sought to revoke Appellant’s probation at docket number

CP-61-CR-0000312-2014. Petition to Revoke Probation/Parole, 6/28/2017.

After waiving her right to a Gagnon I hearing, Appellant proceeded to a

Gagnon II hearing.2 Following the hearing, the court issued an order in which

it, inter alia, noted that Appellant stipulated to the alleged violations. Order

of Court, 12/21/2017. Although not entirely clear from the record, it appears



1
 With limited information concerning the factual background of this case, we
consulted counsel’s Anders brief and the charging documents contained in
the certified record to summarize the pertinent facts. See Anders Brief at 6;
Affidavits of Probable Cause (filed June 15 and July 29, 2017).
2
    Gagnon v. Scarpelli, 411 U.S. 778 (1973).


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that as a result of Appellant’s stipulations, the trial court revoked Appellant’s

probation. Sentencing was scheduled for the same day Appellant was to be

sentenced in the 2017 cases. Id.

        On January 5, 2018, Appellant appeared before the trial court to be

sentenced, and was sentenced as outlined above.         Appellant did not file a

post-sentence motion, but on January 16, 2018, Appellant timely filed a notice

of appeal. That same day, the trial court entered an order directing Appellant

to file a concise statement of matters complained of on appeal pursuant to

Pa.R.A.P. 1925(b)(1). No statement was filed. On March 20, 2018, the trial

court entered an order stating that Appellant’s failure to file a concise

statement constituted waiver of all issues on appeal.        Opinion of Court,

3/30/2018, at 1-2.

        In this Court, counsel for Appellant has filed both an Anders brief and

a petition to withdraw as counsel.3 Accordingly, the following principles guide

our review of this matter.

               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


3   The Commonwealth has elected not to file a brief.


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      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). By contrast, if counsel’s
      petition and brief satisfy Anders, we will then undertake our own
      review of the appeal to determine if it is wholly frivolous. If the
      appeal is frivolous, we will grant the withdrawal petition and affirm
      the judgment of sentence. However, if there are non-frivolous
      issues, we will deny the petition and remand for the filing of an
      advocate’s brief.

Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)

(citations omitted).

      Our Supreme Court has clarified portions of the Anders procedure:

      [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.

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

      Counsel has failed to satisfy these requirements.       Although counsel

states he examined the record and concluded that this appeal is frivolous,

Petition to Withdraw As Counsel, 4/26/2018, at ¶¶ 2, 5, our review of the

record reveals the absence of a written guilty plea colloquy, as well as the




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transcripts of Appellant’s guilty plea and Gagnon II hearing.4 “Without these

notes of testimony, [c]ounsel could not have fulfilled his duty to review the

record for any non-frivolous issues.” Commonwealth v. Flowers, 113 A.3d

1246, 1250 (Pa. Super. 2015).

        Without the transcripts of the guilty plea and Gagnon II hearing and

without the benefit of being able to review the written guilty plea colloquy,

neither counsel nor this Court can satisfy its obligations under Anders. See

Flowers, 113 A.3d at 1250 (holding that “this Court must conduct an

independent review of the record to discern if there are any additional, non-

frivolous issues overlooked by counsel”); Commonwealth v. Curry, 931

A.2d 700, 702 (Pa. Super. 2007) (“Failure to supply a complete record to this

Court for independent review will render a request to withdraw technically

inadequate.”).5     Accordingly, we deny counsel’s petition to withdraw and

remand this case for further proceedings consistent with this memorandum.




4   In addition, counsel has not cited to these transcripts in his Anders brief.

5 Moreover, on appeal, counsel has identified only one issue for review, a claim
challenging the discretionary aspects of Appellant’s sentence.        However,
counsel cites the standard of review for an illegal sentence claim, and its two-
page “statement” to arguably support this issue contains no citation to the
record and only a mere recitation of the court’s statements at sentencing.
Furthermore, although this Court was provided a copy of the transcript from
the sentencing hearing, counsel does not cite to the relevant parts of the
transcript to support his conclusion that the sole issue presented is frivolous.



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      Upon remand, counsel must obtain the missing transcripts and pertinent

documents, and ensure their inclusion in the certified record. Flowers, 113

A.3d at 1251. After review of the entire record, counsel shall file either an

advocate’s brief or a new petition to withdraw and Anders brief that fully

comply with the requirements detailed above.

      Motion for leave to withdraw denied. Case remanded with instructions.

Panel jurisdiction retained.




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