J-S49039-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

CLEO JOSEPH METTS,

                            Appellant               No. 3048 EDA 2015


          Appeal from the Judgment of Sentence September 4, 2015
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0008095-2013

BEFORE: PANELLA, J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                       FILED JUNE 20, 2016

        Appellant Cleo Joseph Metts appeals from the judgment of sentence

entered in the Court of Common Pleas of Delaware County on September 4,

2015, following the imposition of sentence upon the revocation of his parole.

Appellant’s court-appointed counsel has filed a purported Anders1 brief. For

the reasons discussed below, we remand and direct court-appointed counsel

to file either a proper advocate’s brief or a petition to withdraw and

accompanying brief in accordance with Anders, and Commonwealth v.

Santiago, 602 Pa. 159, 978 A.2d 349 (2009).

        We summarize the relevant procedural background of this case as

follows: Appellant, who was represented by counsel, entered a negotiated
____________________________________________


1
    Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967).



*Former Justice specially assigned to the Superior Court.
J-S49039-16


guilty plea to burglary and conspiracy (to commit burglary).2           He was

sentenced to an aggregate term of eight months to twenty-three months in

prison, to be followed by one year of probation.

        At some point, Appellant was placed on parole; however, on

September 4, 2014, he failed to appear at a scheduled meeting with his

parole officer.    Consequently, on October 9, 2014, the trial court issued a

bench warrant for his arrest, and Appellant was apprehended on June 24,

2015.

        Thereafter, Appellant appeared with court-appointed counsel for a

Gagnon II hearing,3 following which Appellant was found to be in violation of

his parole, and it was revoked.           On September 4, 2015, the trial court

sentenced Appellant, giving him his full back-time with immediate parole, to

be followed by one year of probation.

        This timely appeal followed. The trial court directed Appellant to file a

Pa.R.A.P. 1925(b) statement, and counsel filed a statement pursuant to

Pa.R.A.P. 1925(c)(4) indicating his intent to file an Anders brief. The trial

court filed a brief Pa.R.A.P. 1925(a) opinion noting counsel’s intent to file an

Anders brief.


____________________________________________


2
    18 Pa.C.S.A. §§ 3502(a)(2) and 903(c), respectively.
3
    Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756 (1973).




                                           -2-
J-S49039-16


     Thereafter, on March 18, 2016, Appellant’s counsel filed in this Court a

brief entitled “Brief of Appellant pursuant to Anders v. California.”

Therein, counsel presented the following sole issue: “Was the sentence

imposed on [Appellant] harsh and excessive under the circumstances

because the order for his immediate parole did not require immediate

release from incarceration?”      Anders Brief at 3.      Counsel set forth the

reasons supporting the issue but ultimately concluded the issue is frivolous.

See id. at 7-8. However, despite arguing the frivolous nature of the issue,

court-appointed   counsel   has    not   filed   a   petition   to   withdraw   his

representation.

     In Anders, the U.S. Supreme Court discussed the obligation of

appointed counsel to an indigent client during direct appeal with respect to

crafting a balance between counsel’s role as advocate and counsel’s

conclusion that any issue raised on direct appeal would be wholly frivolous.

Thus, to withdraw under Anders, court-appointed counsel must satisfy

certain technical requirements.

     First, counsel must “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 Santiago, 602 Pa. at 178, 978

A.2d at 361).

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


                                      -3-
J-S49039-16


      (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, 602 Pa. at 178-79, 978 A.2d at 361.

      Finally, 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

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) (quotation marks and quotation omitted).

      Instantly, we conclude court-appointed counsel’s representation falls

short of that of an active advocate. Moreover, he has not complied with the

technical requirements related to the withdrawal of his representation. For

instance, he has not made any attempt to fulfill the first requirement

pertaining to petitioning the court for leave to withdraw stating that after




                                     -4-
J-S49039-16


making a conscientious examination of the record it has been determined

that the appeal would be frivolous. Martuscelli, 54 A.3d at 947.

      Moreover, as to the second requirement, with regard to his purported

Anders brief, we note that, although counsel has provided a summary of

the procedural history of this case, he has not included a single citation to

the record.    Santiago, 602 Pa. at 178, 978 A.2d at 361.         It is further

noteworthy that counsel indicates no transcripts exist, and accordingly, he

filed a Pa.R.A.P. 1923 “Statement in Absence of Transcript.”    However, this

Court has not been provided with a copy of this Statement.

      Finally, as to the third requirement, there is no indication that counsel

provided a copy of the Anders-styled brief to Appellant or advised him of his

right to retain new counsel, proceed pro se, or raise any additional points

that he deems worthy of this Court’s attention. Daniels, 999 A.2d at 594.

      Due to the deficiencies set forth supra, 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 petition to withdraw his representation, along

with a proper Anders/Santiago brief.       The Commonwealth shall have 30

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

brief, if necessary.

      Case remanded with instructions. Panel jurisdiction retained.




                                     -5-
J-S49039-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/20/2016




                          -6-
