Com. v. Johnson, A. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ARMONI M. JOHNSON
Appellant No. 2119 MDA 2013
Appeal from the Judgment of Sentence of October 21, 2013
In the Court of Common Pleas of Luzerne County
Criminal Division at No.: CP-40-CR-0002713-2011
BEFORE: BOWES, J., WECHT, J., and MUSMANNO, J.
MEMORANDUM BY WECHT, J.: FILED FEBRUARY 03, 2015
Armoni M. Johnson appeals his October 21, 2013 judgment of
sentence for one count each of aggravated assault, a felony of the first
degree, and aggravated assault, a felony of the second degree. See
18 Pa.C.S. §§ 2702(a)(1), (4), respectively. Johnson’s counsel has filed a
petition to withdraw as counsel, together with an Anders/Santiago brief.1
We find that Johnson’s counsel has not satisfied the Anders/Santiago
requirements. Consequently, we deny counsel’s petition to withdraw as
counsel and remand for counsel properly to satisfy his constitutional
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1
See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349, 361 (Pa. 2009). In Santiago, our Supreme Court
developed certain rules to ensure compliance with the principles underlying
the Anders decision. Thus, it is common practice in this Court to refer to
briefs filed thereunder as “Anders/Santiago briefs.”
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responsibilities as appointed appellate counsel, either by preparing an
Anders/Santiago brief that satisfies Santiago’s clear criteria or by filing an
advocate’s brief on Johnson’s behalf.
The trial court has provided the following factual history:
On August 7, 2011, the victim, Justin Barna, was a resident in
the Capital Hill Apartments, Mountaintop[,] Pennsylvania. Notes
of Testimony (“N.T.”), 7/16/2013, at 37. In the past, Justin
Barna was a regular user of heroin and had purchased drugs
from Johnson, in particular, heroin. Id. Approximately one
week prior to the date of the incident, the victim purchased four
(4) bags of heroin from Johnson. Id. at 38. On August 5, 2011,
Johnson contacted the victim and accused him of robbing him of
his drugs and informing him that he was coming to his home to
retrieve the same. Id. at 40.
On August 7, 2011, the victim had been with his neighbor,
Jeffery Petry, having traveled to a pawn shop in the Wilkes-Barre
area and then returning to their respective apartments. On that
date, the victim heard a knock at the door. As the victim slightly
opened his door, Johnson pushed the door open and commenced
stabbing him. Id. at 43. Johnson repeatedly stabbed the victim
in the victim’s apartment and again in the hallway causing the
victim to fall through his neighbor’s, Jeffery Petry’s, door. Id. at
44-45. The victim was transported to the hospital where he
spent five (5) days and underwent three (3) separate surgeries.
Johnson stabbed the victim in the stomach, under the arm, and
in the back. Id. at 46-47.
The Commonwealth called Jeffery Petry as a witness who was a
neighbor of the victim, Justin Barna, at the Capital Hill
Apartments. Mr. Petry testified that after the victim left his
apartment on August 7, 2011, he heard noises, including a voice
saying “You’re stabbing me!” Id. at 22. Mr. Petry did not see
any other person other [sic] than the victim, he called 911 and
gave his statement to the police. He further testified that he
observed a knife in his apartment with blood on it. Id. at 26.
The Commonwealth called [Sergeant] Scott Rozitski from the
Wright Township Police Department who testified that when he
arrived at the scene on August 7, 2011, he witnessed the victim
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standing on the sidewalk holding his stomach. He also described
blood on Barna’s shirt, blood on the ground near the victim, and
the fatty tissue coming out of the wounds that were inflicted.
Id. at 64. [Sergeant] Rozitski also testified that there were no
weapons on the victim and the victim told him that Johnson had
stabbed him.
Trial Court Opinion (“T.C.O”), 1/23/2014, at 3-4 (citations and nomenclature
modified).
The trial court related the procedural history as follows:
By way of Criminal Information No. 2713 of 2011, the
Commonwealth of Pennsylvania brought the following charges
against [Johnson]: Count 1—Aggravated Assault 18 Pa.C.S.
§ 2702(a)(1); Count 2—Criminal Conspiracy 18 Pa.C.S. § 903;
Count 3—Burglary 18 Pa.C.S. § 3502(a); Count 4—Aggravated
Assault 18 Pa.C.S. § 2702(a)(4); Count 5—Criminal Conspiracy
18 Pa.C.S. § 903.
T.C.O. at 1. On or about August 6, 2012, Johnson tendered a guilty plea.
However, in a document entered on October 12, 2012, the trial court
granted Johnson’s putative request to withdraw his guilty plea. 2 See
Issue/Lift Capias, 10/12/2012.
Prior to the commencement of trial, the Commonwealth
withdrew Count 2 Criminal Conspiracy and Count 5 Criminal
Conspiracy. On July 15, 2013, Johnson presented a motion for
dismissal pursuant to Pa.R.Crim.P. 600. On that date, the
Commonwealth similarly presented a [Pa.R.E. 404(b)] motion
seeking to admit specific prior bad acts. Johnson’s Rule 600
motion was denied and the Commonwealth’s [Rule] 404([b])
motion was granted.
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2
The certified record contains no written motion to withdraw the prior
plea tender.
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On Tuesday, July 16, 2013, a jury trial was commenced. At the
conclusion of the trial, the jury rendered a verdict as follows:
Count 1—Aggravated Assault—Guilty; Count 2—Aggravated
Assault—Guilty; Count 3—Burglary—Not Guilty.[3]
On October 11, 2013, the [trial c]ourt sentenced Johnson as
follows: Count 1—Aggravated Assault—[a] sixty-six (66)[-]
month minimum to a one hundred fifty-six (156)[-]month
maximum in a state correctional institut[ion] followed by
sixty (60) months[’] special probation; Count 2—Aggravated
Assault—fifteen (15) months minimum to sixty (60) months
maximum concurrent to Count 1.
Thereafter, on October 18, 2013, Johnson filed a Motion to
Modify Sentence[,] which was denied by way of Order dated
October 21, 2013. Subsequent thereto, Johnson filed a Notice of
Appeal on November 13, 2013. On November 14, 2013, the
Court entered an order directing Johnson to file a Concise
Statement of Errors Complained of on Appeal [pursuant to
Pa.R.A.P. 1925(b)]. On December 4, 2013, Johnson filed an
Amended Motion to Extend Time for Filing a Concise Statement
Pursuant to Pa.R.A.P. 1925. Upon consideration of that motion,
the Court granted Johnson ten (10) days after receipt of
sentencing/revocation hearing transcript to file his Concise
Statement.
T.C.O. at 1-2 (citations and nomenclature modified).4
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3
The trial court’s renumbering of the counts as originally charged
counts is immaterial to our analysis.
4
The trial court entered its order granting Johnson ten additional days
to file his Rule 1925(b) statement on December 6, 2013. The ten-day
extension was indexed to Johnson’s receipt of his sentencing hearing
transcript. The record does not disclose when Johnson received that
transcript, although the record does indicate that the transcript in question
was filed on October 18, 2013, long before Johnson filed his notice of appeal
and his motion to extend time to file his Rule 1925(b) statement.
Nonetheless, Johnson did not file his Rule 1925(b) statement until January
21, 2014, rendering it potentially untimely. Although our Supreme Court
has made clear that failure to file a Rule 1925(b) statement within the time
allotted by the trial court constitutes per se waiver of all issues on appeal,
(Footnote Continued Next Page)
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Before this Court, Anders counsel sets forth the following potential
issues on Johnson’s behalf:
I. Did the Trial Court err as a matter of law or abuse its
discretion in failing to dismiss all charges pursuant to
Pa.R.C[rim].P. 600[?]
II. Did the Trial Court err in allowing the Commonwealth to
present evidence of prior bad acts[,] of which the
probative value is outweighed by [the] prejudicial effect
this evidence would have on the minds of the jurors and
[which] is irrelevant to the Commonwealth’s proof of the
case[,] thereby depriving [Johnson] of a fair trial[?]
III. Did the Trial Court err by instructing the jury on a charge
of causing or attempting to cause serious bodily injury,
Aggravated Assault[,] wherein the Commonwealth failed to
produce a medical expert or sufficient evidence to sustain
such an instruction.
_______________________
(Footnote Continued)
Commonwealth v. Castillo, 888 A.2d 775 (Pa. 2005), in the context of
direct appeals of criminal convictions, amended Rule 1925 has introduced an
efficiency to the equation that is designed to protect a defendant against the
failure of counsel to comply with the trial court’s Rule 1925(a) order.
Specifically, Rule 1925(c) provides that, when an attorney fails to file a
Rule 1925(b) statement, the proper remedy is to remand the case for the
filing of a Rule 1925(b) statement nunc pro tunc. In Commonwealth v.
Burton, 973 A.2d 428 (Pa. Super. 2009), this Court extended that rule to
encompass circumstances when a statement is filed out of time. Id. at 433.
We further held that under that circumstance, rather than remand for the
filing of a new statement, we may decide the appeal “if the trial court had
adequate opportunity to prepare an opinion addressing the issues being
raised on appeal.” Id. Such is the case here. Consequently,
notwithstanding the lack of sufficient information to determine whether
Johnson filed his Rule 1925(b) statement on a timely basis, we will assume
that the Rule 1925 statement was timely filed relative to the trial court’s
contingent extension and will perform the analysis prescribed by Santiago.
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IV. Whether the verdict on count one, Aggravated Assault,
against the weight of the evidence, that [Johnson] caused
or attempted to cause serious bodily injury[?] [Sic.]
Brief for Johnson at 1.
Because counsel for Johnson proceeds pursuant to Anders and
Santiago, this Court first must pass upon counsel’s petition to withdraw as
counsel before reviewing the merits of the issues set forth by counsel.
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en
banc). Prior to withdrawing as counsel under Anders, counsel must file a
brief that meets the requirements established by our Supreme Court in
Santiago. Pursuant thereto, the brief must provide the following
information:
(1) a summary of the procedural history and facts, with
citations to the record;
(2) reference to anything in the record that counsel believes
arguably supports the appeal;
(3) counsel’s conclusion that the appeal is frivolous; and
(4) 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.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
Counsel also must provide a copy of the Anders/Santiago brief to his
client with a letter that advises the client of his rights 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
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the points raised by counsel in the Anders brief.” Commonwealth v.
Nischan, 928 A.2d 349, 353 (Pa. Super. 2007); see Commonwealth v.
Daniels, 999 A.2d 590, 594 (Pa. Super. 2010). Finally, to facilitate our
review of counsel’s satisfaction of his obligations, he must attach the letter
to his petition to withdraw. See Commonwealth v. Millisock, 873 A.2d
748, 752 (Pa. Super. 2005).
These requirements are by no means idle, nor may we take them
lightly:
The McCoy Court[5] reiterated the basic propositions set forth in
Anders: (1) that a State’s enforcement of its criminal laws must
comply with the principle of substantial equality and fair
procedure embodied in the Fourteenth Amendment; (2) that
under the Sixth Amendment, the indigent have the same right to
effective representation by an active advocate as a defendant
who can afford to retain counsel; (3) that the principle of
substantial equality is not compromised by the fact that an
appointed appellate lawyer finds it necessary to file a petition to
withdraw because he believes his client’s appeal is frivolous; but
that (4) the principle of substantial equality requires that
counsel make the same diligent and thorough evaluation
of the case as a retained lawyer before concluding that an
appeal is frivolous, and that only after such an evaluation
has led counsel to the conclusion that the appeal is wholly
frivolous is counsel justified in making his petition to
withdraw. Id. at 435-37.
The Court then described counsel’s role in procedures for
withdrawal as follows:
The appellate lawyer must master the trial record,
thoroughly research the law, and exercise judgment in
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5
See McCoy v. Court of Appeals of Wis., Dist. 1, 486 U.S. 429(1988).
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identifying the arguments that may be advanced on
appeal. In preparing and evaluating the case, and in
advising the client as to the prospects for success,
counsel must consistently serve the client’s interest
to the best of his or her ability. Only after such an
evaluation has led counsel to the conclusion that the
appeal is “wholly frivolous” is counsel justified in making a
motion to withdraw. This is the central teaching of
Anders.
Id. at 438 (footnote[s] omitted).
The McCoy Court followed with a discussion of its statement in
Anders that a petition to withdraw must be accompanied by “‘a
brief referring to anything in the record that might arguably
support the appeal[,]’” and clarified that such a brief is not
expected to serve as a substitute for an advocate’s brief on the
merits. Id. at 439. Rather, 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. Id. & n.13.
Santiago, 978 A.2d at 355 (citations modified; emphasis added). Recently,
this Court observed that the Anders/Santiago are “stringent, and with
good reason. A defendant has a constitutional right to a direct appeal,
see Pa. Const. Art. [I], § 9, and a constitutional right to counsel for his
direct appeal.” Commonwealth v. Orellana, 86 A.3d 877, 881 (Pa.
Super. 2014) (quoting Commonwealth v. Smith, 700 A.2d 1301, 1304
(Pa. Super. 1997)).
To this end, we have held that “[a] proper Anders brief does not
explain why the issues are frivolous and does not develop arguments against
the appellant’s interests. Rather, the brief articulates the issues in neutral
form . . . and concludes that, after a thorough review of the record, the
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appeal is wholly frivolous.” Commonwealth v. Wrecks, 931 A.2d 717, 720
(Pa. Super. 2007). If counsel does not satisfy Anders’ technical
requirements, this Court will deny the petition to withdraw and remand the
case with appropriate instructions. Id. at 721; see Commonwealth v.
Curry, 931 A.2d 700 (Pa. Super. 2007) (quoting Commonwealth v.
Thomas, 511 A.2d 200, 203 (Pa. Super. 1986)) (“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.’”).
Short of failing to file a brief at all, Anders counsel in the instant case
could hardly have fallen short of his obligations by a greater margin without
a concerted effort to do so.6 Although counsel has provided a procedural
history, he has omitted entirely to provide any account of the underlying
facts either in his statement of the case or in connection with his
arguments.7 Furthermore, he has failed to cite the record where called for in
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6
Counsel has satisfied Santiago’s technical requirements only insofar
as he has furnished a petition to withdraw that pays lip service to all of
counsel’s obligations and attaches counsel’s letter to Johnson detailing
Johnson’s options, and has furnished a brief that is divided into the sections
required by our rules of appellate procedure.
7
This also violates our rules of appellate procedure. See
Pa.R.A.P. 2117. While it is true that the trial court provided a factual history
of the case with citations to the record, counsel’s obligations to the client at
least require him to affirm in clear terms the fairness, accuracy, and
comprehensiveness of the trial court’s account. Absent such an assertion,
(Footnote Continued Next Page)
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numerous instances. See Pa.R.A.P. 2119(a)-(c). Consequently, he has
failed to satisfy the first requirement set forth in Santiago.
Counsel’s discussion of the issues (or lack thereof) is equally
unsatisfactory. In his discussion of the first issue, regarding an alleged
violation of Pa.R.Crim.P. 600’s one-year time limit for the commencement of
trial, counsel does not even provide the content of Rule 600, let alone cite a
single case applying that rule. This is especially notable insofar as Johnson’s
trial was not conducted until July 17, 2013, nearly two years after Johnson
was charged by written complaint for the underlying crimes on or about
August 17, 2011. See Pa.R.Crim.P. 600(2)(a) (“Trial in a court case in which
a written complaint is filed against the defendant shall commence within 365
days from the date on which the complaint is filed.”). While it may be the
case that any of numerous exceptions to the rule might excuse this
considerable extension of the governing time limit, it is not for this Court to
conduct that analysis in the first instance. Rather, under Santiago, the
burden rests with Anders counsel to articulate specific bases upon which
counsel has concluded that no non-frivolous argument will lie that Johnson’s
_______________________
(Footnote Continued)
we cannot glean whether counsel has tested the trial court’s characterization
of the record and confirmed its validity.
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rights under Rule 600, which are constitutional in origin,8 were not violated
in this case.
The second issue asserted by Anders counsel concerns the trial
court’s potential error of law or abuse of discretion in allowing the
Commonwealth under Pa.R.E. 404(b) to present evidence of Johnson’s prior
drug transactions with the victim. Rule 404 generally proscribes the
admission of “[e]vidence of a crime, wrong, or other act . . . to prove a
person’s character in order to show that on a particular occasion the person
acted in accordance with the character.” Pa.R.E. 404(b)(1). However, such
evidence may be admitted for other purposes, “such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident.” In a criminal case this evidence is admissible
only if the probative value of the evidence “outweighs its potential for unfair
prejudice.” Pa.R.E. 404(b)(2). Nor is this list exhaustive: For example, our
Supreme Court has recognized a res gestae exception to Rule 404(b)(1)
allowing other crimes evidence “when relevant to furnish the context or
complete story of the events surrounding a crime.” Commonwealth v.
Dillon, 925 A.2d 131, 137 (Pa. 2007).
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8
See Commonwealth v. Colon, 87 A.3d 352, 356 (Pa. Super. 2014)
(holding that Rule 600 “was adopted to protect defendant’s constitutional
rights to a speedy trial under the Sixth Amendment [to] the United States
Constitution and Article I, Section 9 of the Pennsylvania Constitution”
(internal quotation marks omitted)).
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We may reverse a trial court’s decision admitting such evidence only if
the court abuses its discretion by misapplying the law, exercising manifestly
unreasonable judgment, or demonstrating partiality, prejudice, bias, or ill
will. Commonwealth v. Kinard, 95 A.3d 279, 284 (Pa. Super. 2014) (en
banc). Because the abuse of discretion standard, while limited in word, is
relatively imprecise in application, it is fair to say that an issue must be
clearly frivolous not to warrant advocacy on behalf of the appellant. This
characteristic is amplified in the context of evidentiary rulings, because
Rules 401,9 403,10 and 404(b)(2), require the court to weigh the relevance
of the evidence and to measure its probative value against its potential to
create unfair prejudice.
In this case, counsel’s two-paragraph discussion of this issue does no
more than recite Rule 404(b)’s general standard and one case that reaffirms
its principles, without any discussion of the substance of that case or its
relevance to this one. See Brief for Johnson at 8 (citing Commonwealth v.
Lasch, 347 A.2d 690, 696 (Pa. 1975) (providing that “where evidence of
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9
Evidence is relevant when “it has any tendency to make a fact more or
less probable than it would be without the evidence” and it “is of
consequence in determining the action.” Pa.R.E. 401.
10
“The court may exclude relevant evidence if its probative value is
outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” Pa.R.E. 403.
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other crimes has an independent relevance to the crime being tried—where
it tends to prove such elements as motive, intent, absence of mistake or
accident, a common scheme, plan or design embracing the commission of
two or more crimes so related to each other that proof of one tends to prove
the others, or the identity of the person charged with the crime being tried—
it is admissible for such limited purpose.”)).11 Counsel makes no effort to
establish why the evidence unequivocally was relevant or how it fit
Rule 404(b)(2)’s requirement that such evidence be admitted only when it
tends to establish “motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.” Furthermore,
counsel does not even cite, let alone discuss, why the evidence’s probative
value “outweigh[ed] its potential for unfair prejudice.” See Pa.R.E.
404(b)(2). This is particularly germane insofar as Pennsylvania’s adoption of
that qualification is at variance with Federal Rule of Evidence 404(b)(2),
which contains no such requirement. See Pa.R.E. 404 cmt. Once again, it
may be that counsel is absolutely correct that no non-frivolous argument will
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11
Notably, Lasch was decided over twenty years before Pennsylvania
adopted its first codified rules of evidence in 1998. Although it remains
relevant to those rules, which largely were crafted to embody extant
common law, see Commonwealth v. Minich, 4 A.3d 1063, 1072
(Pa. Super. 2010) (“The codification of the Pennsylvania Rules of Evidence
was never intended by our Supreme Court to change existing law.”), in
citing an older case counsel overlooked any number of more analogous
cases decided by Pennsylvania courts after the rules’ introduction.
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lie concerning the evidence in question, but it is not our responsibility to
figure out why in the first instance.
The third issue raised by Anders counsel concerns the prospect that
the trial court erred in instructing the jury regarding the legal standard for
aggravated assault. Rather than dwell upon the inadequacy of counsel’s
treatment of this subject, we will simply observe that counsel cites no
relevant case law, does not provide the trial court’s jury charge or
contextualize it relative to the trial evidence, and provides no other
indication that he closely measured this case against the applicable law.
Counsel offers only the proposed argument that “the Commonwealth failed
to produce medical evidence sufficient to sustain a conviction” and rejects it
summarily: “[U]pon review of relevant authority, there is no requirement
that medical evidence is necessary to convict a defendant of [a]ggravated
[a]ssault.” Brief for Johnson at 9. In so doing, counsel crosses the line from
providing neutral comment on the issue and asserting frivolity, a violation of
his obligations. See Wrecks, supra. Only by conjecture may we even
formulate an account of how this question might arise in the instant case.
Again, counsel may be absolutely right, but it is his obligation to provide
authority to establish that fact in the first instance, not ours.
The same basic deficiencies are evident in counsel’s discussion of the
fourth and final issue. In connection with that issue, counsel cites only a
portion of the governing standard and, without elaboration or citation to the
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record and governing case law, asserts his belief that “this issue is frivolous
and without merit.” Brief for Johnson at 10.
We appreciate, as we must, the quandary faced by court-appointed
counsel—i.e., counsel who, unlike privately-retained counsel, has little
discretion to decline to accept an appointment to avoid pressing frivolous
issues—when confronted with a case in which no arguably meritorious
appellate issue may be found. It is precisely this dilemma that underlay the
United States Supreme Court’s decisions in Anders and McCoy, inter alia,
and our Supreme Court’s decision in Santiago. But as set forth above, the
constitutional dimensions of the rights to direct appeal and to the assistance
of counsel in connection with that right to appeal preclude us from merely
taking counsel’s word for it. Rather, counsel has an obligation to review the
entire record scrupulously, identify any potentially meritorious issues, and,
should he determine that no such issues can be found, explain for this
Court’s consideration and with some case-specific detail and resort to
governing law why he has so concluded. When he fails to do so, his
obligations have not been discharged and we may not allow counsel to
withdraw. For the foregoing reasons, we must deny counsel’s petition to
withdraw as counsel.
During the pendency of this appeal, Johnson filed several documents
that we now address. First, on September 11, 2014, Johnson filed a
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response to Anders counsel’s petition to withdraw. Therein, he asked that
this Court remand his case for a Grazier hearing12 to establish that he
wished to proceed pro se. After conducting a hearing, the trial court
informed this Court that Johnson did not wish to proceed pro se. However,
in Johnson’s September 11, 2014 response to counsel’s Anders/Santiago
brief, he reasserted his desire to do so as a response to various failings of
Anders counsel in seeking to withdraw.
In the same September 11, 2014 filing, as well as in a colorfully-
named November 19, 2014 “Petition of Confusion,” which we docketed as a
petition for relief, Johnson makes various assertions to the effect that
counsel and/or the trial court mischaracterized the record. Notably, therein
he asserted that certain issues he asked Anders counsel to consider had not
been addressed in counsel’s Anders brief. He also cast aspersions upon
Anders counsel’s integrity and advocacy on Johnson’s behalf.
On December 29, 2014, Johnson filed what we docketed as a second
petition for relief, which he entitled “Potential Issue of Sentence.” Therein,
he asserts, inter alia, that the trial court erroneously supplanted its own
fact-finding for that of the jury’s when it imposed a deadly weapon sentence
enhancement. In support, he cites Apprendi v. New Jersey, 530 U.S. 466(2000), and Jones v. United States, 526 U.S. 227 (1999), both of which,
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12
See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988).
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among others, address the issue of when factual findings underlying a
sentencing enhancement must be made by a jury rather than by the trial
court.
In light of the fact that we must remand this case to allow Anders
counsel to correct the deficiencies in his prior submissions in this Court, we
need not dispose of these petitions and the claims contained therein.
Rather, in reviewing this case on remand, it will be incumbent upon counsel
to consider rigorously and in a manner favorable to Johnson’s interest
whether any of these issues merit discussion, whether in an advocate’s brief
or in a new, technically and substantively adequate Anders/Santiago brief.
We have been clear herein, as we have been in many cases before, what
this requires of counsel, and we are confident that counsel will satisfy his
obligations in this and all other regards moving forward.
We need not deny Johnson’s September 11, 2014 response to
counsel’s Anders/Santiago brief, as such, because it is consistent with
Anders and Santiago that Johnson be afforded the opportunity to furnish
such a response. However, we will deny Johnson’s November 19, 2014 and
December 29, 2014 petitions for relief without prejudice to counsel to
present any or all of the issues raised therein in connection with his future
filings in this matter.
For the foregoing reasons, we remand this case for further proceedings
without prejudice to counsel’s prerogative, upon due analysis and with
sufficient explanation, to proceed again before this Court pursuant to
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Anders and Santiago consistently with the above analysis or to file an
advocate’s brief on Johnson’s behalf.
Petition to withdraw denied. November 19, 2014 and December 29,
2014 petitions for relief denied without prejudice. Case remanded with
direction that Anders counsel file either an Anders/Santiago brief or an
advocate’s brief within sixty (60) days of the date of this memorandum.
Jurisdiction retained.
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