Com. v. Geist, C. ( 2018 )

J-S39030-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CLINTON ALLEN GEIST :
:
Appellant : No. 1621 MDA 2017
Appeal from the Judgment of Sentence September 13, 2017
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0002198-2016
BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MURRAY, J.: FILED AUGUST 28, 2018
Clinton Allen Geist (Appellant) appeals from the judgment of sentence
imposed after he pled guilty to possession of a controlled substance (heroin)
and possession of drug paraphernalia.1 Additionally, Appellant’s counsel,
Matthew Welickovitch, Esq. (Counsel), seeks to withdraw from representation
pursuant to Anders v. California, 386 U.S. 738 (1967) and Commonwealth
v. Santiago, 978 A.2d 349, 361 (Pa. 2009). After careful review, we deny
Counsel’s petition to withdraw and remand for further action by Counsel.
The facts and procedural history of Appellant’s convictions are not
necessary to our disposition. We only note that Appellant filed a timely notice
of appeal from the imposition of his sentence on October 12, 2017. On April
27, 2018, Counsel filed with this Court an “Application to Withdraw as
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1 35 P.S. §§ 780-113(a)(16), (32).
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Counsel,” and Anders brief. Counsel asserted that Appellant seeks to raise
the following question for our review: “WHETHER THE COURT ERRED IN
ACCEPTING APPELLANT’S GUILTY PLEA WHEN APPELLANT WAS UNDER A
STATE OF APPARENT INTOXICATION; WHEATHER THAT PLEA WAS
VOLUNTARY AND UNDERSTANDINGLY TENDERED GIVEN THE
CIRCUMSTANCES.” Anders Brief at 3 (unnumbered pages). According to
Counsel, this claim is frivolous, and Counsel cannot identify any other non-
frivolous issues to present on appeal.
Preliminarily, “[t]his Court must first pass upon counsel’s petition to
withdraw before reviewing the merits of the underlying issues presented by
[the appellant].” Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.
Super. 2007) (en banc). Prior to withdrawing as counsel on a direct appeal
under Anders, counsel must file a brief that meets the following
requirements:
(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 conclusions that the appeal is frivolous; and (4) state
counsel’s reasons for concluding that the appeal is frivolous.
Commonwealth v. Dempster, --- A.3d ----, 2018 WL 2111634, at *3 (Pa.
Super. 2018). Counsel must also provide a copy of the Anders brief to his
client. With the brief, counsel must include 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
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brief.” Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014)
(quoting Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007)
appeal denied, 936 A.2d 40 (Pa. 2007)). After determining that counsel has
satisfied the technical requirements of Anders/Santiago, this Court must
then “conduct a simple review of the record to ascertain if there appear on its
face to be arguably meritorious issues that counsel, intentionally or not,
missed or misstated.” Dempster, 2018 WL 2111634, at *4.
Here, we are constrained to conclude that Counsel failed to satisfy the
technical requirements for withdrawal. While Counsel advised Appellant of his
rights under Nischan to proceed pro se or retain private counsel, Counsel’s
application to withdraw and his Anders brief do not indicate service on
Appellant. Specifically, the withdrawal petition does not contain any proof of
service on Appellant. Likewise, although the Anders brief contains a proof of
service, it lists a different appellant’s name as having been served via first
class mail.2 In light of this record, it is unclear whether Appellant has been
provided with Counsel’s Anders brief or petition to withdraw.
Therefore, we are compelled to deny Counsel’s petition to withdraw.
Within 21 days of the filing date of this memorandum, Counsel shall file with
this Court proof that he has served upon Appellant: (1) Counsel’s petition to
withdraw; and (2) Counsel’s Anders brief. Appellant shall then have 30 days
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2We also note that, to date, Appellant has not filed any response to Counsel’s
petition to withdraw or Anders brief.
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from the date on which Counsel files that proof of service in this Court to file
a response.
Petition to withdraw denied. Case remanded with instructions.
Jurisdiction retained.
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