Opinion
J-S06036-17 No. 2812 EDA 2016
03-03-2017
COMMONWEALTH OF PENNSYLVANIA v. DUANE E. FULGER Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence August 18, 2016 in the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0006387-2014 BEFORE: MOULTON, RANSOM, and FITZGERALD, JJ. MEMORANDUM BY FITZGERALD, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Duane E. Fulger, appeals from the judgment of sentence entered in the Montgomery County Court of Common Pleas after a jury found him guilty of rape of a child and related offenses. Appellant's counsel ("Counsel") has filed a petition to withdraw from representation and an Anders brief. We deny Counsel's petition to withdraw.
18 Pa.C.S. § 3121(c).
Anders v. California , 386 U.S. 738 (1967); see also Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009).
It is well settled that
[t]his Court must first pass upon counsel's petition to withdraw before reviewing the merits of the underlying issues presented by [the appellant].
Prior to withdrawing as counsel on a direct appeal under Anders , counsel must file a brief that meets the
requirements established by our Supreme Court in Santiago. The brief must:
(1) provide a summary of the procedural history and facts, with citations to the 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.
Commonwealth v. Orellana , 86 A.3d 877, 879-80 (Pa. Super. 2014) (some citations omitted). Counsel "must also provide a copy of the Anders petition and brief to the appellant[.]" Commonwealth v. Wrecks , 931 A.2d 717, 721 (Pa. Super. 2007).
Santiago , 978 A.2d at 361. 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."
Instantly, in his petition to withdraw, Counsel requests
that he be permitted to withdraw as counsel, so that Defendant/Appellant may either be appointed new counsel or proceed pro se in pursuing the filing of an Amended Concise Statement of Matters Complained of on Appeal and subsequent briefing and litigation of his direct appeal.Counsel's Pet. to Withdraw, 11/8/16, at ¶ 13 (emphasis added). Additionally, Counsel's petition does not assert that Counsel conscientiously reviewed the record and determined that an appeal was frivolous.
The proofs of service filed with Counsel's Anders brief and petition to withdraw do not indicate service of those documents on Appellant.
Counsel's Anders brief does contain a statement that he conscientiously reviewed the record and determined the appeal possessed no meritorious issues and was wholly frivolous. Anders Brief at 3, 11-12. --------
We further note that in response to this Court's order, Counsel has filed a September 28, 2016 letter to Appellant. Although Counsel's letter more properly apprised Appellant that he had the right to, inter alia, "retain new counsel," it did not clearly state that Counsel intended to withdraw. Moreover, the letter adverted only to providing Appellant with a copy of Counsel's Pa.R.A.P. 1925(c)(4) statement.
Thus, we find insufficient indication that Appellant (1) has been properly apprised of Counsel's intent to withdraw on appeal, (2) understands his right to retain new counsel or proceed pro se, and (3) has been provided a copy of Counsel's petition to withdraw and Anders brief. Accordingly, we deny Counsel's petition to withdraw.
Within fifteen days of this memorandum, Counsel shall file in this Court a new petition to withdraw from representation and a copy of a new letter to Appellant. The letter shall apprise Appellant of Counsel's intention to withdraw and Appellant's right to retain new counsel or proceed pro se. Additionally, Counsel shall attach to the letter copies of his new petition to withdraw and his Anders brief. Appellant shall have sixty days from the date Counsel files the new petition to withdraw and letter in this Court to respond. The Prothonotary of this Court shall serve a copy of this memorandum on Appellant.
Petition to withdraw denied with instructions. Panel jurisdiction retained. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/3/2017