J-S22012-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ANTONIO ADAM HOWELL

                            Appellant                No. 1454 MDA 2015


              Appeal from the Judgment of Sentence July 22, 2015
               In the Court of Common Pleas of Lebanon County
              Criminal Division at No(s): CP-38-CR-0001676-2014


BEFORE: MUNDY, J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY MUNDY, J.:                             FILED MARCH 04, 2016

        Appellant, Antonio Adam Howell, appeals from the July 22, 2015

aggregate judgment of sentence of 4 and 1/2 to 16 years’ imprisonment,

imposed by the trial court after Appellant entered a negotiated guilty plea to

21 criminal offenses, including two counts of simple assault, one count of

aggravated assault, seven counts of robbery, and eleven counts of

conspiracy.1     With this appeal, Appellant’s counsel has filed a petition to

withdraw and an Anders2 brief, stating that the appeal is wholly frivolous.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2701, 2702, 3701, and 903, respectively.
2
    Anders v. California, 386 U.S. 738 (1967).
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After careful review, we are constrained to deny counsel’s petition to

withdraw and remand for further proceedings consistent with this Court’s

recent decision in Commonwealth v. Flowers, 113 A.3d 1246 (Pa. Super.

2015).

      The trial court summarized the relevant factual and procedural history

of this case as follows.

                  On October 28, 2014, the Commonwealth
            charged [Appellant] with 22 counts, including two
            counts of Simple Assault, one count of Aggravated
            Assault, eight counts of Robbery and eleven counts
            of Conspiracy to commit the forgoing crimes. On
            April 29, 2015, the Commonwealth agreed to nolle
            pros one of the robbery charges, and [Appellant]
            entered a guilty plea to all of the remaining counts,
            as charged. On July 22, 2015, [the trial court]
            imposed a sentence on [Appellant]. In doing so,
            [the trial court] complied with the parties’ plea
            agreement calling for a minimum of 54 months in
            prison. ...

            [The trial court] found that most of the counts
            merged, and only sentenced [Appellant] on Count 1,
            []; Count 2 []; Count 12 []; and Count 13[].

                [The trial court] imposed identical sentences for
            Counts 1 and 12 of 54 months to 16 years in a state
            correctional facility.   Likewise, the sentence on
            Counts 2 and 13 were identical—three to 12 years’
            imprisonment. The sentences imposed on Counts 2,
            12 and 13 were to be served concurrently with the
            sentence imposed on Count 1, for an aggregate
            sentence of 54 months to 16 years. [The trial court]
            ordered [Appellant] to pay the costs of prosecution
            and a fine of $400. [The trial court] also ordered
            [Appellant] to make restitution ... and pay $1,462.17
            to the Crime Victims’ Compensation Fund.

               On August 18th, [2015,] [Appellant’s] counsel filed
            a Notice of Appeal.

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Trial Court Opinion, 9/30/15, at 2-4 (footnotes omitted).

     On August 24, 2015, the trial court entered an order directing

Appellant to file a concise statement of errors complained of on appeal

pursuant to Pennsylvania Rule of Appellate Procedure 1925(b).          Appellant

complied on September 11, 2015.           The record does not indicate that

Appellant filed a response to the Anders brief.

     In the Anders brief, counsel has raised the following issues for review.

             1. Was the sentence so manifestly excessive as to
                constitute too severe a punishment?

             2. Was the sentence imposed manifestly excessive
                because undue weight was assigned to the gravity
                of the offenses despite the existence of certain
                mitigating factors such as [Appellant’s] age and
                education?

             3. Was    the   sentence     imposed    unreasonably
                disproportionate to co-defendant’s sentence?

Anders Brief at 3.

     “When presented with an Anders brief, this Court may not review the

merits of the underlying issues without first passing on the request to

withdraw.”    Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.

2010) (citation omitted). Additionally, an Anders brief shall comply with the

requirements set forth by our Supreme Court in Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009).

                   [W]e hold that in 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

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              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 361.

      Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super.

2005), and its progeny, counsel seeking to withdraw on direct appeal must

also meet the following obligations to his or her client.

              Counsel also must provide a copy of the Anders
              brief to his client. Attending the brief must be a
              letter that advises the client of his 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 court[’]s attention in
              addition to the points raised by counsel in the
              Anders brief.

Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014)

(internal quotation marks and citation omitted). “Once counsel has satisfied

the above requirements, it is then this Court’s duty to conduct its own

review of the trial court’s proceedings and render an independent judgment

as to whether the appeal is, in fact, wholly frivolous.” Commonwealth v.

Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc), quoting

Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004). Further,

“this Court must conduct an independent review of the record to discern if




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there are any additional, non-frivolous issues overlooked by counsel.”

Flowers, supra at 1250 (footnote and citation omitted).

       In this appeal, we conclude that counsel’s Anders brief complies with

the requirements of Santiago. First, counsel has provided a procedural and

factual summary of the case with references to the record. Second, counsel

advances relevant portions of the record that arguably support Appellant’s

claims on appeal. Third, counsel concluded, “after a thorough review of the

record and applicable law, undersigned appointed counsel for Appellant

believes this appeal would be wholly frivolous.” Anders Brief at 16. Lastly,

counsel has complied with the requirements set forth in Millisock.       See

Letter from Counsel to Appellant, dated 11/24/15.     As a result, we must

conduct an independent review to ascertain if the appeal is indeed wholly

frivolous.

       Instantly, as in Flowers, the notes of testimony are absent from the

certified record. The record is devoid of transcripts from the April 29, 2015

guilty plea proceeding and the July 22, 2015 sentencing hearing. 3        In

Flowers, we stated as follows.

              [W]ithout these notes of testimony, counsel could
              not have assessed whether any non-frivolous issues
              exist in connection with Flowers’ guilty plea
              proceeding.   We therefore cannot conclude that
____________________________________________


3
  In the notice of appeal and motion to proceed in forma pauperis filed
August 18, 2015, counsel copied “Michelle Brown, Court Stenographer,” but
there is no indication that counsel otherwise requested the transcripts.



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           Counsel has fulfilled his obligations pursuant to
           Anders.     Thus, we deny counsel’s petition to
           withdraw and remand with instructions for counsel to
           obtain the missing notes of testimony and to file an
           advocate’s brief or another Anders brief and petition
           seeking to withdraw following his review of a
           complete record.

Flowers, supra at 1250-1251.

     Based on the foregoing, we adhere to the precedent of Flowers and

deny counsel’s petition to withdraw, and remand the case for counsel to

obtain the missing notes of testimony from both the guilty plea and

sentencing proceedings, review the complete record, and to file an

advocate’s brief or Anders brief and petition to withdraw.

     Petition denied. Case remanded. Panel jurisdiction retained.




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