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Commonwealth v. Lane

SUPERIOR COURT OF PENNSYLVANIA
Aug 14, 2018
J-S32021-18 (Pa. Super. Ct. Aug. 14, 2018)

Opinion

J-S32021-18 No. 1694 MDA 2017

08-14-2018

COMMONWEALTH OF PENNSYLVANIA v. JEAN EVELYN LANE Appellant


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence September 28, 2017
In the Court of Common Pleas of Bradford County Criminal Division at No(s): CP-08-CR-0000056-2017 BEFORE: PANELLA, J., NICHOLS, J., and PLATT, J. MEMORANDUM BY NICHOLS, J.:

Retired Senior Judge assigned to the Superior Court.

Appellant Jean Evelyn Lane appeals from the judgment of sentence imposed after she pled guilty to two counts of delivery of a controlled substance and one count of driving under the influence (DUI). Appellant's counsel has filed a brief pursuant to Anders v. California , 386 U.S. 738 (1967), and its Pennsylvania counterpart, Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009). We deny counsel's petition to withdraw and remand with instructions.

35 P.S. § 780-113(a)(30) and 75 Pa.C.S. § 3802(d)(2), respectively. The instant DUI offense was Appellant's third in ten years. --------

On July 6, 2017, Appellant entered an open guilty plea to the aforementioned offenses. On September 28, 2017, the trial court sentenced Appellant to one to two years' incarceration for each drug offense and one to five years of incarceration for DUI. See Sentencing Order, 10/4/17, at 1. The sentences were structured consecutively, resulting in an aggregate sentence of three to nine years' incarceration. Id.

Appellant timely filed a post-sentence motion for reconsideration on October 5, 2017. Appellant requested that the trial court impose a shorter term of incarceration because she "had undergone drug and alcohol treatment while awaiting sentencing, applied for Treatment Court, but was denied, and was willing to complete the [State Intermediate Punishment] program if given that opportunity." Post-Sentence Mot., 10/5/17. The trial court denied Appellant's motion on October 19, 2017.

Appellant filed a timely notice of appeal on November 2, 2017. The trial court issued an order for a Pa.R.A.P. 1925(b) statement. Appellant's counsel filed a statement of his intent to file an Anders brief. See Pa.R.A.P. 1925(c)(4).

Counsel has submitted an Anders brief, which identifies the following issues on appeal:

1. Whether the Appellant should have received a Treatment Court or similar alternative sentence.

2. Whether the sentence of the court was excessive.
Appellant's Brief at 5.

When presented with an Anders brief, this Court may not review the merits of the underlying issues without first examining counsel's petition to withdraw. Commonwealth v. Goodwin , 928 A.2d 287, 290 (Pa. Super. 2007) (en banc). Instantly, counsel has complied with the technical requirements for petitioning to withdraw by (1) filing a petition for leave to withdraw stating that, after making a conscientious examination of the record, counsel has determined that the appeal would be frivolous; (2) providing a copy of the brief to Appellant; and (3) advising Appellant that she has the right to retain private counsel, proceed pro se, or raise additional arguments that the defendant considers worthy of the court's attention. Commonwealth v. Lilley , 978 A.2d 995, 997 (Pa. Super. 2009).

However, we must also consider whether counsel's Anders brief meets the requirements established by our Supreme Court in Santiago. In Santiago , the Court held that in the brief accompanying counsel's petition to withdraw, counsel 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.
Santiago , 978 A.2d at 361 (formatting altered and emphasis added).

As the Santiago Court explained,

requiring counsel to articulate the basis for his or her conclusion of frivolity will advance the twin functions counsel's Anders brief is to serve, i.e., it will assist the intermediate appellate courts in determining whether counsel has conducted a thorough and diligent review of the case to discover appealable issues and whether the appeal is indeed frivolous. . . . It can also reveal to counsel previously unrecognized aspects of the record or the law and thereby provide a safeguard against a hastily-drawn or mistaken conclusion of frivolity.
Id. at 360-61.

Here, counsel's brief does not contain a factual summary of Appellant's case. Although counsel summarizes the law governing a discretionary sentencing claim, he fails to state that the appeal is frivolous and does not articulate the factual or legal bases for his conclusion. Therefore, counsel's brief fails to meet the requirements of Anders , as modified by Santiago.

Accordingly, because counsel has failed to fulfill the requirements of Anders and Santiago , we deny counsel's petition to withdraw. We remand with instructions for counsel to file either an advocate's brief or a petition seeking leave to withdraw and a compliant Anders/Santiago brief within thirty days of this decision. In the event that counsel seeks to withdraw, Appellant shall have thirty days after service of counsel's petition to withdraw, letter, and brief to file a response in this Court either pro se or with the benefit of private counsel.

Petition to withdraw denied. Case remanded with instructions. Panel jurisdiction retained.

Judge Panella joins the memorandum.

Judge Platt files a concurring and dissenting statement.


Summaries of

Commonwealth v. Lane

SUPERIOR COURT OF PENNSYLVANIA
Aug 14, 2018
J-S32021-18 (Pa. Super. Ct. Aug. 14, 2018)
Case details for

Commonwealth v. Lane

Case Details

Full title:COMMONWEALTH OF PENNSYLVANIA v. JEAN EVELYN LANE Appellant

Court:SUPERIOR COURT OF PENNSYLVANIA

Date published: Aug 14, 2018

Citations

J-S32021-18 (Pa. Super. Ct. Aug. 14, 2018)