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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                     v.                   :
                                          :
BRIAN TUDDLES,                            :          No. 2635 EDA 2019
                                          :
                          Appellant       :


        Appeal from the Judgment of Sentence Entered August 6, 2019,
            in the Court of Common Pleas of Northampton County
               Criminal Division at No. CP-48-CR-0003853-2018


BEFORE: LAZARUS, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED APRIL 29, 2020

        Brian Tuddles appeals from the August 6, 2018 judgment of sentence

entered in the Court of Common Pleas of Northampton County after he entered

a guilty plea to one count of aggravated assault.1 Appellant was sentenced to

a term of imprisonment of not less than 7 nor more than 14 years. Counsel

has filed what purports to be an Anders brief. We direct counsel to take

appropriate action in accordance with this memorandum.

        The relevant factual and procedural history of this case, as gleaned from

the certified record, is as follows: On July 2, 2018, appellant twice punched

the victim, his girlfriend, with a closed fist, causing the victim to sustain

serious bodily injury.      Appellant was charged with aggravated assault,




1   18 Pa.C.S.A. §§ 2702(a)(1).
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terroristic threats, simple assault, and harassment.2     On August 5, 2019,

appellant proceeded to a trial by jury. After the victim testified, appellant

opted to accept a negotiated plea agreement. On August 6, 2019, appellant

entered his plea and was sentenced by the trial court.       No post-sentence

motions were filed.

      On August 12, 2019, appellant filed a pro se motion to withdraw his

guilty plea. As appellant was represented by counsel, the trial court entered

an order referring appellant’s pro se motion to his counsel.              See

Pa.R.A.P. 3304 (providing that where a litigant, represented by counsel, files

a pro se pleading, it shall be forwarded to counsel). Counsel for appellant

filed a timely petition to withdraw his guilty plea on August 15, 2019. The

petition was denied by the trial court. (Trial court order, 8/20/19.)

      Appellant filed a timely notice of appeal. On September 6, 2019, the

trial court ordered appellant to file a concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b). Counsel filed a timely “statement

in lieu of 1925(b) statement.” The trial court filed a statement pursuant to

Pa.R.A.P. 1925(a), stating that there were no allegations of error to address.

      Appellant raises the following issue:

            Whether the [trial c]ourt erred in issuing the appellant
            a sentence which was unduly harsh under the
            circumstances[?]




2 18 Pa.C.S.A. §§ 2702(a)(1), 2706(a)(1), 2701(a)(1), and 2709(a)(1),
respectively.


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Appellant’s brief at 8 (full capitalization omitted).

        As a preliminary matter, counsel filed a “statement in lieu of 1925(b)

statement” wherein counsel contends that appellant’s issues are “totally

frivolous and without merit under the facts, Pennsylvania [r]ules, and any

relevant case law.” (Statement in lieu of Rule 1925(b) statement, 9/19/19 at

¶ 9.)    Counsel, however, did not state whether he intended to file an

Anders/McClendon3 brief or whether he intended to withdraw as counsel.

(Id.)

        In his brief, counsel states that he “has reviewed the asserted claims in

[a]ppellant’s pro se motion and finds them to be without merit.” (Appellant’s

brief at 11.)     Counsel further states that he “can find no errors in the

application of sentence by the sentencing court” and that he “files this brief

without argument as to the merits to an appeal in the above-captioned

matter.” (Id.) Although counsel does not title his brief as such, based on

counsel’s assertions and those in his “statement in lieu of statement under

Pa.R.A.P. 1925,” it appears counsel intended to submit an Anders brief.

        “When faced with a purported Anders brief, this Court may not review

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

withdraw.” Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.Super. 2005)

(citations omitted); Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa.Super.




3 Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon 434 A.2d 1185 (Pa. 1981).


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2009). One of the Anders/Santiago requirements is submission of a petition

to withdraw.      See Commonwealth v. Goodwin, 928 A.2d 287, 290

(Pa.Super. 2007) (en banc). To withdraw under Anders, court-appointed

counsel must first, “petition the court for leave to withdraw and state that

after making a conscientious examination of the record, he has determined

that the appeal is frivolous.” Commonwealth v. Martuscelli, 54 A.3d 940,

947 (Pa.Super. 2012), quoting Commonwealth v. Santiago, 978 A.2d 349,

361 (Pa. 2009).

     Second, counsel must file an Anders brief, in which counsel:

           (1) provide[s] a summary of the procedural history
           and facts, with citations to the record; (2) refer[s] to
           anything in the record that counsel believes arguably
           supports the appeal; (3) set[s] forth counsel’s
           conclusion that the appeal is frivolous; and
           (4) state[s] 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.

     With respect to the briefing requirements, “[n]either Anders nor

McClendon requires that counsel’s brief provide an argument of any sort, let

alone the type of argument that counsel develops in a merits brief. [W]hat

the brief must provide under Anders are references to anything in the record

that might arguably support the appeal.” Santiago, 978 A.2d at 359-360.

     Pointing out the flaws in the issue(s) presented is not the proper form

of an Anders brief, as this approach operates to deny an appellant the


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assistance of counsel.    Commonwealth v. Smith, 700 A.2d 1301, 1303

(Pa.Super. 1997).

      Lastly, counsel must furnish a copy of the Anders brief to his client and

“advise him of his right to retain new counsel, proceed pro se or raise any

additional points that he deems worthy of the court’s attention, and attach[]

to   the   Anders   petition   a   copy    of   the   letter   sent   to   the   client.”

Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa.Super. 2010) (citation

omitted). “[If] counsel has satisfied the above requirements, it is then this

[c]ourt’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) (quotation marks and citation omitted).

      Here, appellant’s counsel has not filed a petition to withdraw. Further,

counsel’s brief is essentially an argument in support of the trial court’s

sentencing of appellant. (See appellant’s brief at 8-11.) While counsel need

not raise issues if he believes there are none, he must set forth those issues

that the defendant wishes to advance, as well as any other claims necessary

to the effective appellate presentation of those issues. Commonwealth v.

Smith, 700 A.2d 1301, 1303 (Pa.Super. 1997).               It is sufficient if counsel

“flags” those issues and includes relevant case citations and references to the

record. Smith, 700 A.2d at 1304. Counsel’s brief does not comport with

these requirements.



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      Additionally, nothing in the record demonstrates that counsel furnished

a copy of his Anders brief to appellant or advised appellant of his right to

retain new counsel, proceed pro se, or raise any additional points that he

deems worthy of the court’s attention. Counsel has not attached any letter to

his Anders petition reflecting notice to the appellant. Thus, counsel has failed

to comply with any of the requirements of Anders. See Commonwealth v.

Millisock, 873 A.2d 748, 751-752 (Pa.Super. 2005).

      We, therefore, find that counsel’s brief denies appellant his very basic

and important right to assistance of competent counsel. Consequently, we

will not dispose of appellant’s issue(s) on the merits, and we direct counsel to

file either an advocate’s brief or an Anders brief with a petition to withdraw

as counsel within 30 days.

      To the extent that counsel seeks to withdraw, we deny that request.

Counsel is directed to file an advocate’s brief or an Anders-compliant brief

and petition to withdraw as counsel within 30 days. Jurisdiction retained.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/29/2020




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