Com. v. Boozer, T. ( 2019 )

J-S52018-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TANIA A.A. BOOZER :
:
Appellant : No. 492 EDA 2018
Appeal from the Judgment of Sentence January 22, 2016,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0005854-2012.
BEFORE: OTT, J., KUNSELMAN, J., and McLAUGHLIN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED OCTOBER 31, 2019
Tania A.A. Boozer appeals from the judgment of sentence imposed
following her conviction of first-degree-murder and conspiracy. Boozer’s
court-appointed appellate counsel, George S. Yacoubian, Jr., Esquire, seeks
to withdraw from representation pursuant to Anders v. California, 386 U.S.
738 (1967), as refined by Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009). Additionally, Boozer’s privately-retained counsel has filed an
application for post-submission communication, and an application for
extension of time to file a response to the Anders brief. Upon review, we
grant Attorney Yacoubian’s petition to withdraw, deny private counsel’s
applications, and remand for the trial court to appoint replacement counsel
who shall file either an advocate’s brief or a brief and letter that comply with
the mandates of Anders and Santiago.
J-S52018-19
In 2016, a jury found Boozer guilty of the above-mentioned crimes.1
She was sentenced to life imprisonment without the possibility of parole.
Boozer’s counsel filed an untimely notice of appeal, and this Court quashed
the appeal. Boozer’s counsel also filed a petition to withdraw from
representation. Boozer then filed a pro se PCRA petition. The trial court
appointed Attorney Yacoubian as replacement counsel, and he filed an
amended PCRA petition seeking reinstatement of Boozer’s direct appeal rights
nunc pro tunc. As a result, her direct appeal rights were reinstated. Attorney
Yacoubian then petitioned to withdraw from representation after accepting a
civil law position. The court appointed replacement counsel, who also
petitioned to withdraw due to a conflict of interest.
Ultimately, Attorney Yacoubian was reappointed as Boozer’s appellate
counsel on November 25, 2018.2 On February 22, 2019, he filed a motion for
extension of time to file an appellant’s brief. This Court granted an extension
of time until May 6, 2019, to file an appellant’s brief. On May 3, 2019,
Attorney Yacoubian filed a petition to withdraw and an Anders brief. He also
sent a letter to Boozer, advising her of his actions and attaching those
documents.
____________________________________________
1 Because the facts of the case are irrelevant to our disposition, we need not
discuss them here.
2 It is unclear from the record why the trial court reappointed Attorney
Yacoubian as Boozer’s replacement counsel, as he claimed that he accepted a
civil position a few months prior.
-2-
J-S52018-19
Boozer thereafter filed an application to proceed pro se. She also filed
a motion to compel, noting, inter alia, that the letter which Attorney Yacoubian
sent to her did not comply with Anders. This Court denied Boozer’s motion
to compel, but entered an order directing Attorney Yacoubian to send Boozer
a revised letter that complied with Anders.3 This Court also granted Boozer
an extension of time until October 1, 2019, to file a response to Attorney
Yacoubian’s petition to withdraw and the Anders brief. After that deadline
expired, Boozer retained private counsel, who sought leave to file a response
to the Anders brief by filing both an application for post-submission
communication and an application for extension of time to file a responsive
brief.
As a preliminary matter, we address Attorney Yacoubian’s petition to
withdraw as counsel. “When presented with an Anders brief, this Court may
not review the merits of the underlying issues without first passing on the
request to withdraw.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa.
Super. 2010) (citation omitted). In order for counsel to withdraw from an
appeal pursuant to Anders, certain procedural and substantive requirements
must be satisfied. Our Supreme Court has determined that counsel must meet
the following three procedural requirements to withdraw from representation:
(1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
____________________________________________
3 Attorney Yacoubian did send a revised letter; however, as we discuss infra,
that letter did not comply with Anders.
-3-
J-S52018-19
determined that the appeal would be frivolous; (2) furnish a copy
of the brief to the defendant; and (3) advise the defendant that
he or she has the right to retain private counsel or raise additional
arguments that the defendant deems worthy of the court’s
attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013)
(citation omitted). Once counsel has satisfied the Anders requirements, it is
then this Court’s responsibility “to 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.” Commonwealth v.
Dempster, 187 A.3d 266, 272 (Pa. Super. 2018).
In his petition to withdraw, Attorney Yacoubian does not indicate that
“after a conscientious examination of the record, [he] finds the appeal to be
wholly frivolous;” however, he does indicate that he “reviewed
correspondences from [Boozer], the docket sheet, all relevant transcripts, and
the common law and believes that any direct appeal claims would be
frivolous.” Petition to Withdraw, 5/3/19, at 2. Thus, we deem his petition to
be minimally compliant with Anders.
However, the revised letter that Attorney Yacoubian sent to Boozer
attaching copies of the petition to withdraw and the Anders brief still did not
correctly advise Boozer of her rights. In that letter, Attorney Yacoubian
stated:
After a review of all of the relevant materials in your case, I have
filed the enclosed Anders brief, asking Superior Court to dismiss
your direct appeal as frivolous. This does mean you lose your
PCRA rights. If and when your direct appeal is denied or
-4-
J-S52018-19
dismissed, you can then pursue a claim of ineffectiveness of trial
counsel. Please note that, in the event your appeal is dismissed
pursuant to Anders, you will no longer be eligible for court-
appointed counsel but could represent yourself or retain counsel.
This right is also articulated within the enclosed Anders brief
(pages 5 and 6).
Revised Anders Letter, 8/16/19, at 1.
First, the revised letter incorrectly suggests that, simply because
Attorney Yacoubian filed an Anders brief, Boozer’s PCRA rights were lost. This
is simply not an accurate statement of the law. Additionally, the letter
incorrectly states that “in the event your appeal is dismissed pursuant to
Anders,” Boozer then “could represent [her]self or retain counsel.” Id.(emphasis added). In truth, upon the filing of the petition to withdraw and
Anders brief, Boozer had the immediate right to retain private counsel or
proceed pro se to raise additional arguments that she deems worthy of this
Court’s attention. She was not required to wait until her appeal was actually
dismissed to do so. Accordingly, because Attorney Yacoubian’s revised letter
did not accurately advise Boozer of her rights, it did not satisfy the procedural
requirements of Anders.
We next examine the Anders brief to determine whether it satisfies the
substantive mandates prescribed in Santiago. As our Supreme Court has
clarified:
[I]n the Anders brief that accompanies court-appointed 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
-5-
J-S52018-19
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.
Here, the entirety of Attorney Yacoubian’s one-paged discussion
consists of the following conclusory statements:
A. The Commonwealth established beyond a reasonable doubt
that a first-degree murder was committed, and the evidence,
though entirely circumstantial, was sufficient to convict
[Boozer] of murder of the first degree and conspiracy to
commit murder of the first degree. A claim of legal
insufficiency would be frivolous.
B. The speedy trial claim is frivolous.
C. [Boozer’s] claim that she should not have been allowed to
withdraw her guilty plea is frivolous.
D. Aside from the Rule 600 claim and the motion to withdraw her
guilty plea (which was granted), there were no pre-trial
motions.
E. Having been convicted of murder of the first degree, [Boozer’s]
life sentence was legal.
F. While there may have been issues related to effectiveness of
trial counsel, [Boozer] retains the right to claim same through
PCRA.
Anders Brief at 7.
Based upon our examination of Attorney Yacoubian’s Anders brief, we
conclude that he has not complied substantially with the requirements
established by Santiago. The Anders brief does not provide a summary of
-6-
J-S52018-19
the factual history of the case with citations to the record.4 Nor does the
Anders brief refer to anything in the record that Attorney Yacoubian believes
arguably supports the appeal.5 He states no reasons for concluding that the
appeal is frivolous. See Santiago, 978 A.2d at 360 (holding that “a discussion
of counsel’s reasons for believing that the client’s appeal is frivolous is
mandatory and must be included in counsel’s brief”).
Without satisfying these requirements, we are not assured, as Anders
requires, that Attorney Yacoubian fully performed his duty as Boozer’s
advocate to independently search the record as a trained advocate with an
eye to uncovering appealable error, before concluding that her appeal was
frivolous. Although an appellant’s counsel is not required to advocate strongly
in favor of issues he believes 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
____________________________________________
4 Although the Anders brief does contain a brief procedural summary of the
case, that summary is woefully inadequate to appraise this Court of the
relevant procedural history of the case. Notably, the procedural history
provided in the Anders brief makes no mention of a withdrawn guilty plea, or
any delays or continuances that would bear upon a Pa.R.Crim.P. 600 claim.
5 As phrased, it is unclear from the Anders brief whether all (or merely some)
of the issues deemed frivolous by Attorney Yacoubian were claims that Boozer
requested to be raised on appeal. As our Supreme Court has explained, “[t]he
universe of potential claims is not limited to those claims and testimony that
counsel’s unschooled client believes the court should consider.” Santiago,
978 A.2d at 360. For this reason, Anders requires that counsel fully perform
his duty as an advocate to independently search the record as a trained
advocate with an eye to uncovering appealable error. Id.
-7-
J-S52018-19
(Pa. 1974)). In this case, Attorney Yacoubian has done nothing more than
present conclusory statements supporting affirmance of the verdict.
Because Attorney Yacoubian’s revised letter to Boozer and his brief did
not comply with Anders, we would ordinarily deny his petition to withdraw,
and remand this matter so he could file either an advocate’s brief or an
Anders brief and a letter that fully comply with the requirements detailed
above. However, given Attorney Yacoubian’s second deficient performance,
we grant his petition to withdraw, and remand for the trial court to appoint
replacement counsel for this direct appeal. Replacement counsel shall have
45 days from the date of his or her appointment to file either an advocate’s
brief or an Anders brief. The Commonwealth may file a brief in response 30
days thereafter.
Further, as we find Attorney Yacoubian’s Anders brief deficient,
Boozer’s private counsel need not file a response thereto. Accordingly, we
deny as moot private counsel’s application for post-submission
communication, and application for extension of time to file brief.
Petition to withdraw granted. Application for post-submission
communication and application for extension of time to file brief denied. Case
remanded with instructions. Panel jurisdiction retained.
-8-
J-S52018-19
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/31/19
-9-