Com. v. Vanderpool, H., Jr. (memorandum)

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J-S12005-18 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA v. HARRY JAMES VANDERPOOL, JR. Appellant : : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1346 MDA 2017 Appeal from the Judgment of Sentence July 31, 2017 In the Court of Common Pleas of Bradford County Criminal Division at No(s): CP-08-CR-0000150-2017 COMMONWEALTH OF PENNSYLVANIA v. HARRY JAMES VANDERPOOL, JR. Appellant : : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1347 MDA 2017 Appeal from the Judgment of Sentence July 31, 2017 In the Court of Common Pleas of Bradford County Criminal Division at No(s): CP-08-CR-0000131-2017 BEFORE: LAZARUS, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY LAZARUS, J.: FILED MAY 21, 2018 Harry James Vanderpool, Jr., appeals from the judgment of sentence, entered in the Court of Common Pleas of Bradford County, after he pleaded guilty to two counts of theft by unlawful taking and one count of defiant J-S12005-18 trespass.1 Preliminarily, counsel has filed a brief to withdraw as counsel, purportedly under Anders v. California, 386 U.S. 738 (1967) and its progeny.2 After review, we conclude that counsel has not complied with the requirements of Anders and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), and thus, we deny counsel’s motion to withdraw and direct him to file either an advocate’s brief or a new motion to withdraw together with a compliant Anders brief. On June 1, 2017, Vanderpool pleaded guilty to theft by unlawful taking graded as a misdemeanor of the first degree at docket number CP-08-CR0000131-2017. On July 31, 2017, the trial court sentenced him to 12 to 36 months’ incarceration. The same day, Vanderpool pleaded guilty to an additional charge of theft by unlawful taking and one count of defiant trespass at docket number CP-08-CR-0000150-2017. The trial court sentenced Vanderpool to an additional 12 to 36 months’ incarceration to run consecutive to the sentence imposed at docket number 08-CR-0000131-2017. Vanderpool flied a timely post-sentence motion for reconsideration of sentence, which the trial court denied on August 11, 2017. On August 25, 2017, Vanderpool filed a timely notice of appeal. Both Vanderpool and the trial court have complied with Pa.R.A.P. 1925. ____________________________________________ 1 18 Pa.C.S.A. § 3901 and 18 Pa.C.S.A. § 3503(b), respectively. Counsel filed an Anders brief, but did not file a corresponding motion to withdraw as counsel. 2 -2- J-S12005-18 On February 26, 2018, Vanderpool’s attorney, Richard A. Wilson, Esquire, filed an Anders brief, in which he presented Vanderpool’s sole issue for our review: “Was the sentence imposed . . . excessive in light of [Vanderpool’s] circumstances, particularly with regard to [his] treatment and rehabilitative needs?” Anders Brief, at 3. “Before we begin [any] substantive analysis, we must first review defense counsel’s Anders brief and motion to withdraw.” Commonwealth v. Bennett, 124 A.3d 327, 330 (Pa. Super. 2015) (citation omitted). A request by appointed counsel to withdraw pursuant to Anders and Santiago gives rise to certain requirements and obligations, for both appointed counsel and this Court. These requirements and the significant protection they provide to an Anders appellant arise because a criminal defendant has a constitutional right to a direct appeal and to counsel on that appeal. Commonwealth v. Hankerson, 118 A.3d 415, 419-20 (Pa. Super. 2015) (citations omitted). “The Anders brief aims to provide the appellate courts with a means for making two determinations – whether appointed counsel has fully supported his client’s appeal to the best of his ability and whether the appeal is indeed so lacking in merit that counsel should be permitted to withdraw.” Santiago, 978 A.2d at 355 (citation omitted). To obtain permission to withdraw, counsel must file an Anders brief that meets the requirements established by our Supreme Court in Santiago. The procedural requirements for withdrawal require counsel to provide the appellant with a copy of the Anders brief along with a letter that advises -3- J-S12005-18 the appellant of his or her 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.” Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007). Substantial compliance with these requirements is sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 2007). Instantly, counsel has failed to comply with the basic procedural mandates of Anders and Santiago. First, counsel has not filed a corresponding motion to withdraw as counsel accompanying his Anders brief; standing alone, this oversight is fatal to his petition for withdrawal. Second, there is no indication in counsel’s Anders brief or in the record that he has provided Vanderpool a copy of his Anders brief or a letter informing Vanderpool of his appellate rights. Because counsel has not complied with any of the procedural dictates of Anders and Santiago, we need not consider whether his Anders brief meets the substantive requirements of Santiago.3 ____________________________________________ 3 Under Santiago, an Anders 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 reasonably believes 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 -4- J-S12005-18 See Commonwealth v. Zeigler, 112 A.3d 656, 659-660 (Pa. Super. 2015). In light of the foregoing, we remand with instructions to counsel to file within 30 days a compliant motion to withdraw together with an Anders brief, or an advocate’s brief on behalf of Vanderpool. Our remand is without prejudice to Vanderpool to file responses in the event Attorney Wilson files a new Anders brief, and it shall be incumbent upon counsel to consider Vanderpool’s issues prior to any subsequent fillings. ____________________________________________ case law, and/or statuses on point that have led to the conclusion that the appeal is frivolous. Santiago, 978 A.2d at 361. Instantly, counsel’s Anders brief does not state that counsel made a “conscientious examination of the record.” See Commonwealth v. Woods, 939 A.2d 896, 899 (Pa. Super. 2007). Rather, counsel simply states that “[he] has determined [Vanderpool’s] appeal is frivolous[.]” Anders brief, at 11. While it is not necessary that an Anders petitioner track the Anders language precisely, petitioner must, at a minimum, “substantially comply” with Anders. Wrecks, supra, at 1290. Here, as Santiago requires, there is no indication in counsel’s Anders brief that he reviewed the entire record before concluding that Vanderpool’s issue is frivolous. Moreover, the incomplete nature of counsel’s Anders brief suggests that he has failed to comply with the dictates of Anders and Santiago and has skirted the formalities demanded by their technical requirements. Notably, counsel baldy states that because Vanderpool’s sentence is lawful, his claim must be frivolous. Cf. Commonwealth v. Mouzon, 812 A.2d 617 (Pa. 2002) (sentences within statutory limits could raise a substantial question as to whether sentences are excessive, and thus, statute governing sentencing appeals does not exclude excessive sentence claims based on sentences within statutory limits). Additionally, in a section of his Anders brief entitled “request for relief,” counsel states “[Vanderpool] therefore respectfully requests that the court reverse the lower court’s . . .” Anders brief, at 12. Assuming counsel intended to complete the foregoing conclusory sentence, we invite him on remand to specify what relief Vanderpool requests. -5- J-S12005-18 Petition to withdraw denied. Case Remanded with instructions. Jurisdiction Retained. -6-

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