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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

ASHLYNN TAYLOR HARTMAN

                            Appellant                     No. 2027 MDA 2015


          Appeal from the Judgment of Sentence September 16, 2015
              In the Court of Common Pleas of Franklin County
             Criminal Division at No(s): CP-28-CR-0000006-2015


BEFORE: SHOGAN, J., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.:                                     FILED JUNE 09, 2016

        Ashlynn Taylor Hartman appeals from the judgment of sentence

imposed September 16, 2015, in the Franklin County Court of Common

Pleas. The trial court imposed an aggregate sentence of eight to 36 months’

imprisonment, following Hartman’s guilty plea to charges of possession of a

controlled substance and theft.1               Contemporaneous with this appeal,

Hartman’s counsel has filed a petition to withdraw from representation and

an Anders brief.         See Anders v. California, 386 U.S. 738 (1967);

Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981). The sole issue

addressed in the Anders brief is a challenge to the discretionary aspects of
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*
    Retired Senior Judge assigned to the Superior Court.
1
    35 P.S. §780-113(a)(16) and 18 Pa.C.S. § 3921(a), respectively.
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Hartman’s sentence. For the reasons that follow, we deny counsel’s petition

to withdraw, and remand for further proceedings.

       The facts underlying Hartman’s guilty plea are as follows.         On

November 7, 2014, Hartman stole three hydrocodone pills from the

complainant, Ralph Kline. When confronted by the police, Hartman admitted

to the theft, and, on August 5, 2015, entered a guilty plea to the above-

stated charges. On September 16, 2015, the trial court imposed a sentence

of six to 24 months’ imprisonment for the charge of possession of a

controlled substance, and a consecutive term of two to 12 months’

imprisonment for the charge of theft.2 Hartman filed a timely post sentence

motion seeking modification of her sentence.       The trial court denied the

motion on October 23, 2015, and this timely appeal followed.3

       When counsel files a petition to withdraw and accompanying Anders

brief, we must first examine the request to withdraw before addressing any

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2
   The same day, Hartman was sentenced in three separate cases for
violations of probation. See Docket Nos. 1353-2012, 364-2013, and 1212-
2014. On those charges, the court imposed an aggregate term of 30 to 72
months’ imprisonment, and ordered that sentence to run consecutively to
the sentence imposed herein. The appeals from those sentences were
consolidated, and are pending before this Court. See Superior Court Docket
Nos. 1800 MDA 2015, 1801 MDA 2015, and 1802 MDA 2015.
3
  On November 20, 2015, the trial court ordered Hartman to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Hartman complied with the court’s directive, and filed a concise statement
on December 11, 2015.




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of the substantive issues raised on appeal. Commonwealth v. Goodwin,

928 A.2d 287, 290 (Pa. Super. 2007) (en banc).

        Pursuant to Anders and its progeny, in order for counsel to withdraw,

counsel must:

        1) petition the court for leave to withdraw stating that, after
        making a conscientious examination of the record, counsel
        has determined that the appeal would be frivolous; 2) furnish a
        copy of the brief to the defendant; and 3) advise the defendant
        that he or she has the right to retain private counsel or raise
        additional arguments that the defendant deems worthy of the
        court’s attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en

banc) (emphasis supplied).

        Here,   it   appears    counsel        has   technically   complied   with   the

requirements for withdrawal outlined in Anders, supra, and its progeny.

Notably, counsel filed a petition for leave to withdraw, in which she states

her belief that the appeal is wholly frivolous, filed an Anders brief pursuant

to the dictates of Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa.

2009), furnished a copy of the Anders brief to Hartman and advised

Hartman of her right to retain new counsel or proceed pro se.4 Cartrette,

supra, 83 A.3d at 1032.

        Nevertheless, in order to withdraw from representation, counsel is

required to conduct a review of the entire record to ensure there are no
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4
    Hartman has not responded to counsel’s Anders brief.




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non-frivolous issues for appeal.          Cartrette, supra.    Our review of the

certified record, however, reveals no transcript from Hartman’s guilty plea

hearing.     “Without these notes of testimony, [c]ounsel could not have

fulfilled [her] duty to review the entire record for any non-frivolous issues.”

Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015)

(denying petition to withdraw and remanding for further proceedings when

guilty plea transcript was not included in certified record).           See also

Commonwealth v. Vilsaint, 893 A.2d 753 (Pa. Super. 2006).

       Accordingly, we conclude counsel failed to fulfill her obligations for

withdrawal pursuant to Anders and its progeny.5               Therefore, we deny

counsel’s petition to withdraw and remand with instructions to counsel to

obtain the notes of testimony from Hartman’s August 5, 2015, guilty plea

hearing. Within 30 days of receipt of that transcript, and after a thorough

review of the record, counsel is then directed to file either an advocate’s

brief or another Anders brief and concomitant petition to withdraw as

counsel.

       Petition   to   withdraw     as   counsel   denied.    Case   remanded   for

proceedings consistent with this Memorandum. Panel jurisdiction retained.
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5
  We note that, in her petition for leave to withdraw, counsel did not aver
that she conducted a “conscientious examination of the record.” Cartrette,
83 A.3d at 1032 (Pa. Super. 2013). Rather, she simply stated that she had
“reviewed all issues for appeal.” Petition of Counsel for Leave to Withdraw,
1/26/2016, at ¶ 3.




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