Com. v. Curry (Complete Opinion)

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J.S25022/07 2007 PA Super 237 COMMONWEALTH OF PENNSYLVANIA Appellee v. JOEL F. CURRY Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1787 MDA 2006 Appeal from the Judgment of Sentence August 25, 2006 In the Court of Common Pleas of Luzerne County Criminal No. CP-40-CR-0001839-2006 BEFORE: HUDOCK, KELLY and JOHNSON, JJ. OPINION BY KELLY, J.: ¶1 Filed: August 8, 2007 Appellant, Joel F. Curry, appeals from the judgment of sentence entered by the Court of Common Pleas of Luzerne County following his guilty plea to charges of burglary and simple assault.1 Appellant s counsel has filed a petition for leave to withdraw as counsel, accompanied by a brief for Appellant pursuant to Anders v. California, 386 U.S. 738 (1967) and Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981). We examine whether an Anders brief that includes a non-neutral summary of facts, lacks argument and summary of argument sections, and approvingly quotes the trial court s findings against a client satisfies the requirements of Anders, supra and McClendon, supra. Because we find that it does not, we deny counsel s petition and remand. 1 18 Pa.C.S.A. §§ 2701(a)(1), 3502(a). J.S25022/07 ¶2 After pleading guilty, Appellant was sentenced on August 25, 2006 to 36 to 72 months imprisonment for burglary and a concurrent 9 to 24 months for simple assault. Appellant s subsequent motion to modify the sentence was denied by the trial court. This timely appeal followed. ¶3 Pursuant to McClendon, supra, when counsel believes an appeal is frivolous and wishes to withdraw representation on appeal, he must: (1) petition the court for leave to withdraw stating that after making a conscientious examination of the record, counsel has determined the appeal would be frivolous; (2) file a brief referring to any issues that might arguably support the appeal, but which does not resemble a nomerit letter; and (3) furnish a copy of the brief to the defendant and advise him of his right to retain new counsel, proceed pro se, or raise any additional points he deems worthy of this Court s attention. Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006) (quoting Commonwealth v. Bishop, 831 A.2d 656, 659 (Pa. Super. 2003)) (emphasis added). Although an appellant s counsel need not advocate strongly for issues he feels are frivolous, a brief that essentially argues for affirmance is unacceptable. Commonwealth v. Vilsaint, 893 A.2d 753, 758 (Pa. Super. 2006) (citing Commonwealth v. Greer, 314 A.2d 513, 515 (Pa. 1974)). ¶4 Counsel for an appellant may not submit an Anders brief that resembles a no-merit letter. See Edwards, supra. A no-merit letter is a document filed by an appellant s counsel detailing the nature and extent of his review and listing each issue the petitioner wished to have raised, with -2- J.S25022/07 counsel s explanation of why those issues were meritless. Commonwealth v. Turner, 544 A.2d 927, 928 (Pa. 1988). See also Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). ¶5 To withdraw on direct appeal, counsel must fulfill both the technical and substantive requirements of Anders. See Vilsaint, supra. Failure to supply a complete record to this Court for independent review will render a request to withdraw technically inadequate, while supplying an Anders brief that argues against the interests of his client will raise an issue of substantive inadequacy. Id. at 757-58. ¶6 After a thorough review of the record and the briefs of both Appellant and the Commonwealth, we find that Appellant s counsel has complied with the first and third requirements of Anders/McClendon, but fails to satisfy the second criterion. Indeed, counsel s brief more closely resembles a nomerit letter. See Turner, supra; Finley, supra. ¶7 Counsel s appellate brief presents one question for our review: whether the sentence imposed was harsh and excessive in light of Appellant s character and background. (Appellant s Brief at 2). However, the brief is completely devoid of argument or summary of argument sections, both of which are required by Pa.R.A.P. 2111(a). renders the brief technically inadequate. See This defect Vilsaint, supra. Furthermore, although Appellant disputes the discretionary aspect of his sentence, counsel s brief does not contain a concise statement of the -3- J.S25022/07 reasons for an appeal of this type, as required by Pa.R.A.P. 2119(f). See Commonwealth v. Matroni, 923 A.2d 444, 454 (Pa. Super. 2007). ¶8 More importantly, the statement of the case is non-neutral, in contravention of Pa.R.A.P. 2117(b) (mandating that statement of case shall not contain any argument and requiring balanced presentation of procedural history and parties contentions); indeed, the final paragraph of the statement of the case quotes the trial court s conclusion that Appellant is anything other than a person of good character and commendable background. (Appellant s Brief at 4). Defense counsel approvingly quotes other sections of the trial court s findings against Appellant, and presents no arguments or facts that could be construed to favor his client. The brief s conclusion, moreover, states that the appeal is wholly frivolous, echoing counsel s petition for leave to withdraw. If we were to accept a counsel s conclusion that an appeal was wholly frivolous, without more, counsel would become the court determining the merits of a defendant s appeal. Commonwealth v. Thomas, 511 A.2d 200, 203 (Pa. Super. 1986) (quoting Commonwealth v. McGeth, 500 A.2d 860, 868 n.6 (Pa. Super. 1985) (Hoffman, J., concurring)). The brief is therefore substantively inadequate. See Vilsaint, supra. ¶9 Because defense counsel has filed a technically and substantively inadequate Anders brief, we deny his petition to withdraw and remand for him to file either an advocate s brief or a brief in full compliance with -4- J.S25022/07 Anders/McClendon, with an accompanying motion to withdraw. Counsel must file either brief within 30 days of the filing of this memorandum, and the Commonwealth may file its brief within 30 days of the filing of Appellant's brief. ¶ 10 Petition to withdraw denied. Case remanded with instructions. Panel jurisdiction retained. -5-

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