Com. v. Redditt, F. ( 2019 )

J-S07002-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FREDERICK REDDITT :
:
Appellant : No. 1660 MDA 2018
Appeal from the Judgment of Sentence Entered August 3, 2018
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0000564-2018
BEFORE: OLSON, J., McLAUGHLIN, J., and PELLEGRINI*, J.
MEMORANDUM BY OLSON, J.: FILED APRIL 26, 2019
Appellant, Frederick Redditt, appeals from the judgment of sentence
entered on August 3, 2018, as made final by the denial of a post-sentence
motion on August 15, 2018. On appeal, Appellant’s counsel filed a petition to
withdraw as counsel and accompanying brief pursuant to Anders v.
California, 386 U.S. 738 (1967) and Commonwealth v. McClendon, 434
A.2d 1185 (Pa. 1981). Upon review, because counsel has not complied with
our procedural requirements, we deny the motion to withdraw as counsel and
remand for additional proceedings consistent with this memorandum.
Per the affidavit of probable cause, Appellant, on October 10, 2017, was
involved in a hit and run motor vehicle accident. Police arrived at the scene
of the accident after emergency medical services transported Appellant to the
hospital. Officer William Pletcher of the Reading Police Department met with
Appellant at the hospital, where he consented to a blood draw. The toxicology
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* Retired Senior Judge assigned to the Superior Court.
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report indicated that Appellant had Delta-9 THC and its metabolites in his
blood and a blood alcohol content (“BAC”) of .014%.
On August 3, 2018, Appellant pled guilty in a court of common pleas to
driving under the influence of a controlled substance - impaired ability
(“DUI”),1 and driving with a controlled substance or its metabolites in the
blood while operating privilege is suspended or revoked (“DUS”).2 The trial
court sentenced Appellant to a term of three days to six months’ imprisonment
on the DUI charge and a concurrent term of 90 days on the DUS charge, with
credit for 134 days of time served.
On August 10, 2018, Appellant filed a post-sentence motion asking the
trial court to vacate his sentence and re-sentence him as a court
“not-of-record” for the purpose of avoiding a state parole violation under 61
Pa.C.S.A. § 6138(a)(1).3 The court denied the post-sentence motion on
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1 75 Pa.C.S.A. § 3802(d)(2).
2 75 Pa.C.S.A. § 1543(b)(1.1)(i).
3 “A parolee under the jurisdiction of the [parole] board released from a
correctional facility who, during the period of parole or while delinquent on
parole, commits a crime punishable by imprisonment, for which the parolee is
convicted or found guilty by a judge or jury or to which the parolee pleads
guilty or nolo contendere at any time thereafter in a court of record, may at
the discretion of the board be recommitted as a parole violator.” 61 Pa.C.S.A.
§ 6138(a)(1) (emphasis added).
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August 15, 2018. On October 2, 2018, the court granted Appellant’s petition
to file a notice of appeal nunc pro tunc.4 This appeal followed.5
Appellant’s counsel filed both a petition to withdraw and an Anders
brief.6
To be permitted to withdraw pursuant to Anders, counsel must:
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record it has been
determined that the appeal would be frivolous; (2) file a brief
referring to anything that might arguably support the appeal, but
which does not resemble a “no merit” letter or amicus curiae brief;
and (3) furnish a copy of the brief to the defendant and advise
him of his right to retain new counsel or raise any additional points
that he deems worthy of the court's attention. If these
requirements are met, the Court may then evaluate the record to
determine whether the appeal is frivolous.
Commonwealth v. McBride, 957 A.2d 752, 756 (Pa. Super. 2008) (citations
omitted) (emphasis added). In the Anders brief, “counsel must: (1) provide
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4 Appellant’s plea counsel withdrew on August 29, 2018, and the court
appointed the Berks County Office of the Public Defender to represent
Appellant in his appeal.
5 On October 9, 2018, the trial court ordered Appellant to file a concise
statement of matters complained of on appeal. In response, on October 18,
2018, Appellant’s counsel filed a statement of intent to file an
Anders/McClendon brief pursuant to Pa.R.A.P. 1925(c)(4).
6 Counsel also filed a praecipe to withdraw her appearance with the
prothonotary of this Court, stating, “[p]lease kindly withdraw my appearance
on behalf of the above named [d]efendant.” Praecipe for Withdrawal of
Appearance, 12/20/2018. This was not appropriate. A praecipe is “a written
request for an action [] from a party to a clerk of court[.]” Praecipe, Merriam-
Webster’s Legal Dictionary. (Online ed. 2019). A praecipe is generally a
request for an action that does not require judicial review. As discussed
throughout this memorandum, counsel needs judicial approval from this Court
to withdraw her appearance on behalf of Appellant. As such, we strike the
praecipe for withdrawal of appearance from the record.
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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 frivolous; and (4)
state counsel's reasons for concluding that the appeal is frivolous.”
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
In the instant case, counsel’s Anders brief provides a curt summary of
the factual and procedural history with absolutely no citations to the record.
Upon careful review of the certified record this Court received, it appears that
at least two hearings took place in this matter—a bail revocation/modification
hearing on March 23, 2018, and the hearing during which Appellant entered
his guilty plea on August 3, 2018. However, the certified record does not
contain notes of testimony from either hearing. In fact, it appears that no
transcripts were ordered.
Counsel for Appellant stated in her Anders brief and in the
accompanying letter sent to Appellant, that after a thorough review of the
record and transcript, she was unable to identify a meritorious argument.
Based upon counsel’s representation, we would have every reason to expect
that at least one transcript should exist and be part of the record. However,
the docket indicates that no transcript was ever ordered in this matter.
Moreover, counsel’s failure to request and review the transcripts is made even
more troubling by the fact that counsel was appointed to represent Appellant
in this direct appeal after his plea counsel was permitted to withdraw. She
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took no part in any prior proceedings. As such, for counsel to have
“conduct[ed] a conscientious examination of the record” and concluded there
were no non-frivolous claims available to Appellant, she would have needed
to order those transcripts.7 McBride, 957 A.2d at 756.
Moreover, in reviewing a petition to withdraw and accompanying
Anders brief, one of our requirements is to conduct an independent review of
the record and, in order to do so, this Court has stated:
All appellants are required to insure a sufficient record is delivered
to our Court for review. [See generally Pa.R.A.P. Chapter 19,
Transmission of Record.] This requirement is especially important
where counsel ha[s] filed an Anders brief and motion to
withdraw. The filing of the Anders brief triggers the duty of our
Court to conduct an independent review of the entire record to
make sure counsel has fully represented [her] client's interest[s].
Commonwealth v. Vilsaint, 893 A.2d 753, 758 (Pa. Super. 2006) (internal
citation omitted), citing Commonwealth v. Oakes, 683 A.2d 681, 682 (Pa.
Super. 1996). In order to discharge our duty, we must have the opportunity
to review the entire record independently. Without the entire record, we are
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7See Commonwealth v. Orellana, 86 A.3d 877, 882 (Pa. Super. 2014)
(internal quotation and citation omitted) (“the right to representation on direct
appeal is not satisfied merely by addressing those issues that the unschooled
client wishes to advance. Rather[]the right to counsel is vindicated by
counsel's examination and assessment of the record and counsel's references
to anything in the record that arguably supports the appeal.”).
Although counsel may be aware of the issue Appellant ultimately seeks to
raise, see infra at footnote 3, her task under Anders was to review the
record, including transcripts, and ascertain whether any non-frivolous claims
could be raised on behalf of Appellant. Counsel’s failure to order transcripts
demonstrates that she has not discharged her duty.
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unable to determine if “counsel has fully represented [her] client’s
interest[s].” Id.
Accordingly, we conclude that counsel has failed to fulfill her obligation
for withdrawal. We deny counsel’s petition to withdraw and remand with
instructions for counsel to obtain forthwith the notes of testimony from the
August 3, 2018, plea and sentencing hearing as well as any other relevant
notes of testimony, including the March 23, 2018, bail revocation/modification
hearing. Counsel is further instructed to ensure that all of the notes of
testimony are transmitted to this Court and included in the certified record.
Within 30 days of receipt of such transcripts, and after a thorough review of
the record, counsel is then directed to file either an advocate’s brief or a
petition to withdraw as counsel and an appropriate Anders brief.
Petition to withdraw as counsel denied. Praecipe for Withdrawal of
Appearance stricken. Case remanded for proceedings consistent with this
memorandum. Panel jurisdiction retained.
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