J-S22036-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                     Appellee              :
                                           :
                     v.                    :
                                           :
SAUNDRA LEE DINGER,                        :
                                           :
                     Appellant             :     No. 1784 WDA 2014

    Appeal from the Judgment of Sentence Entered September 22, 2014,
             in the Court of Common Pleas of Jefferson County,
         Criminal Division, at No(s): CP-33-CR-0000445-2011 and
                          CP-35-CR-0000605-2012

BEFORE:      PANELLA, LAZARUS, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:            FILED MAY 15, 2015

      Saundra Lee Dinger (Appellant) appeals from a judgment of sentence

entered after the trial court revoked her probation. In addition, Appellant’s

counsel has filed a petition to withdraw and a brief pursuant to Anders v.

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

A.2d 349 (Pa. 2009). We deny counsel’s petition to withdraw and remand

with instructions.

      We briefly summarize the background underlying this matter as

follows.   The trial court revoked Appellant’s probation and sentenced her.

Appellant timely filed a post-sentence motion, which the trial court denied.

Appellant timely filed a notice of appeal. The trial court directed Appellant to




*Retired Senior Judge assigned to the Superior Court.
J-S22036-15

comply with Pa.R.A.P. 1925(b). Appellant filed a 1925(b) statement,1 and

the trial court subsequently filed an opinion in compliance with Pa.R.A.P.

1925(a).

     Counsel then filed with this Court a petition to withdraw and an

Anders brief.   Thus, before we consider the substance of this appeal, we

must address counsel’s compliance with 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). 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.




1
  Appellant’s counsel failed to append the 1925(b) statement to the Anders
brief, in violation of Pa.R.A.P. 2111(d).


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J-S22036-15

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

(citations omitted).   Our Supreme Court has expounded further upon the

requirements of Anders as follows.

      [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.

Santiago, 978 A.2d at 361.

      In his petition to withdraw, counsel asserts that Appellant believes the

trial court abused its discretion in the manner in which it sentenced her.

Counsel avers that he reviewed the record in this case and that the appeal is

wholly frivolous. According to counsel, he served Appellant with a copy of

the petition to withdraw, the Anders brief, and a letter informing Appellant

that she may retain new counsel or raise any points worthy of this Court’s

attention. However, the certificate of service that counsel attached to the

petition to withdraw does not reflect that counsel served Appellant with the

petition.2


2
  In Commonwealth v. Thomas, 511 A.2d 200, 201 (Pa. Super. 1986),
this Court suggested in a footnote that counsel simply could aver that
counsel furnished the appellant with a copy of the Anders brief and petition
to withdraw “by way of affidavit, certificate of service, or the petition for
leave to withdraw.” This statement constitutes obiter dictum. Even if the


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J-S22036-15

         Regarding the Anders brief, its “statement of the case” does not

contain any citation to the record.             Of particular concern is counsel’s

references to Appellant’s Gagnon I3, 4hearing. A transcript of that hearing is

not contained in the certified record.             Furthermore, counsel does not

adequately explain his reasons for concluding that the appeal is wholly

frivolous.

         Due to these deficiencies, we deny counsel’s petition to withdraw

without prejudice. We remand this case and direct counsel to file, within 30

days of the date of this memorandum, either an advocate’s brief or a proper

Anders brief and petition to withdraw.           The Commonwealth shall have 30

days from the date that counsel files his brief in order to file a responsive

brief.

         Petition   to   withdraw   as   counsel   denied.   Case   remanded   with

instructions. Panel jurisdiction retained.




statement were controlling law, we still would deny counsel’s petition to
withdraw due to the other deficiencies we highlight below.

3
    Gagnon v. Scarpelli, 411 U.S. 778 (1973).
4
  “[T]he Gagnon I hearing is similar to the preliminary hearing afforded all
offenders before a Common Pleas Court trial: the Commonwealth must
show probable cause that the violation was committed.” Commonwealth
v. Ferguson, 761 A.2d 613, 617 (Pa. Super. 2000) (citation omitted)


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