J-S22032-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              : IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                Appellee                   :
                                           :
                   v.                      :
                                           :
RAYMOND ANTHONY GATES, JR.,                :
                                           :
                Appellant                  : No. 1716 WDA 2014

    Appeal from the Judgment of Sentence Entered September 9, 2014,
               in the Court of Common Pleas of Erie County,
           Criminal Division, at No(s): CP-25-CR-0001282-2014
                       and CP-25-CR-0002225-2010

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

MEMORANDUM BY STRASSBURGER, J.:                         FILED JULY 23, 2015

      Raymond Anthony Gates, Jr. (Appellant) appeals from the judgment of

sentence imposed after the revocation of his probation/parole and his

sentence imposed after pleading guilty to theft by unlawful taking. Counsel

for Appellant has filed a petition to withdraw as counsel pursuant to Anders

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

A.2d 349 (Pa. 2009).       On June 3, 2015, this panel remanded the case,

directing counsel either to comply with the requirements of Anders or to file

an advocate’s brief. Upon review of counsel’s new petition to withdraw and

brief, we again remand this case with instructions.

      We remind counsel of our standards for reviewing a case that includes

a petition to withdraw and Anders brief.




*Retired Senior Judge assigned to the Superior Court.
J-S22032-15


      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.

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

(citations omitted).

      In our prior memorandum, we denied counsel’s petition to withdraw

and pointed out three deficiencies in counsel’s petition and Anders brief. In

her petition to withdraw, counsel purported to review challenges to the

weight and sufficiency of the evidence, which are challenges not reviewable

in this probation revocation case. Additionally, the certificate of service on

the petition was faulty in that it listed an individual other than Appellant as

recipient.   Finally, in counsel’s Anders brief, she did not explain why the




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issue she preserved in her post-sentence motion was frivolous; rather, she

explained why an issue she did not preserve for review was frivolous.

Accordingly, we denied the petition to withdraw and remanded the case for

counsel either to comply with Anders or file an advocate’s brief on

Appellant’s behalf.

      On June 24, 2015, counsel filed a new petition to withdraw and

Anders brief.    In her new petition to withdraw, the certificate of service

does not list Appellant, or any inmate, as having received it.      However,

counsel did write a letter to Appellant, in which she states that she enclosed

a copy of the petition and Anders brief with the letter to him. Thus, we are

satisfied that counsel has complied with her notice requirements.

      However, we are still concerned with counsel’s “new” Anders brief.

The “new” brief is the exact same brief counsel filed previously. Despite the

fact this Court specifically pointed out a concern with respect to the issue

raised by counsel, counsel made no changes to the brief. Notably, counsel

has still not explained why the issue she raised her in post-sentence motion

regarding credit for time served is frivolous.

      Thus, we once again “deny the petition to withdraw and remand the

case with appropriate instructions … directing counsel either to comply with

Anders or file an advocate’s brief on Appellant’s behalf.” Wrecks, supra.




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      Petition to withdraw as counsel denied.   Case remanded with

instructions. Jurisdiction retained.




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