Com. v. Arnold, D. ( 2018 )

J. S66043/18 & J. S66044/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DARREN JOSEPH ARNOLD, : No. 1028 EDA 2018
:
Appellant :
Appeal from the Judgment of Sentence, February 9, 2018,
in the Court of Common Pleas of Delaware County
Criminal Division at Nos. CP-23-CR-0004313-2010,
CP-23-CR-0008017-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DARREN JOSEPH ARNOLD, : No. 1030 EDA 2018
:
Appellant :
Appeal from the Judgment of Sentence, February 9, 2018,
in the Court of Common Pleas of Delaware County
Criminal Division at Nos. CP-23-CR-0004313-2010,
CP-23-CR-0008017-2016
BEFORE: GANTMAN, P.J., PANELLA, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 13, 2018
Darren Joseph Arnold appeals from the February 9, 2018 judgments of
sentence entered by the Court of Common Pleas of Delaware County
following his conviction of tampering with a public record,
J. S66043/18 & J. S66044/18
forgery-unauthorized act in writing, forgery-utters forged writing, and
impersonating a public servant,1 and from the trial court’s order revoking his
probation stemming from appellant’s conviction of theft by unlawful taking,
receiving stolen property, and conspiracy to commit theft,2 to which he was
originally sentenced on December 6, 2010. Shawn K. Page, Esq.
(“Attorney Page”), filed applications to withdraw his appearance on
August 16, 2018, alleging that the appeals are wholly frivolous, accompanied
by Anders3 briefs. After careful review, we remand.
The relevant procedural history is as follows: On January 25, 2017,
the Commonwealth charged appellant with tampering with a public record,
forgery-unauthorized act in writing, forgery-utters forged writing,
impersonating a public servant, and harassment. The jury convicted
appellant of tampering with a public record, both forgery charges, and
impersonating a public servant on September 21, 2017. The trial court
acquitted appellant of harassment.4
On February 9, 2018, the trial court sentenced appellant to an
aggregate term of 16-32 months’ imprisonment, to be followed by
1 18 Pa.C.S.A. §§ 4911(a)(2), 4101(a)(2), 4101(a)(3), and 4912,
respectively.
2 18 Pa.C.S.A. §§ 3921(a), 3925(a), and 903 (a)(1), respectively.
3See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
4 18 Pa.C.S.A. § 2709(a)(3).
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52 months’ probation for the tampering with a public record, impersonating
a public servant, and forgery convictions. Immediately after the sentencing
hearing, the trial court held a Gagnon II5 hearing to address appellant’s
violation of the probation stemming from the December 6, 2010 judgment of
sentence. The trial court revoked appellant’s probation and sentenced him
to 6-24 months’ imprisonment to be served consecutively to the first
sentence imposed. Appellant did not file any post-sentence motions.
On March 12, 2018, appellant filed a pro se notice of appeal to this
court. Two days later, Attorney Page filed a notice of appeal. The trial court
ordered appellant to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b) on March 16, 2018. On April 23,
2018, the trial court vacated its March 16, 2018 order and again ordered
appellant to file a concise statement of errors complained of on appeal.
Appellant failed to do so, and the trial court filed an opinion pursuant to
Pa.R.A.P 1925(a) on June 14, 2018.
As noted above, Attorney Page filed applications to withdraw his
appearance, accompanied by Anders briefs on August 16, 2018. This,
however, does not rectify appellant’s failure to comply with the trial court’s
Rule 1925(b) order. Indeed, as noted by a previous panel of this court:
Generally, the failure to file a Rule 1925(b)
Statement would constitute a waiver of all issues.
Commonwealth v. Lord, [] 719 A.2d 306, 309
([Pa.] 1998). According to the bright-line rule set
5 See Gagnon v. Scarpelli, 411 U.S. 778 (1973).
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forth by Lord; “. . . in order to preserve their claims
for appellate review, [a]ppellants must comply
whenever the trial court orders them to file a
Statement of Matters Complained of on Appeal
pursuant to Pa.R.A.P. 1925. Any issues not raised in
a Pa.R.A.P. 1925(b) statement will be waived.”
Commonwealth v. Castillo, [] 888 A.2d 775, 780
[(Pa. 2005)], citing Lord, 719 A.2d at 309.
....
However, it is also notable in this case that
Appellant’s counsel submitted to this Court a brief
and a petition to withdraw pursuant to Anders v.
California [] and Commonwealth v. McClendon,
[] 434 A.2d 1185 ([Pa.] 1981).
....
Rule 1925 provides two options which were available
to Appellant’s counsel at the time the trial court
directed him to file a concise statement. Appellant’s
counsel could have complied with the order and filed
a concise statement under Pa.R.A.P. 1925(b), or
alternatively, could have filed a statement of intent
to file an Anders/McClendon brief. See
Commonwealth v. Goodwin, 928 A.2d 287, 293
(Pa.Super. 2007) (en banc) (finding that under the
newly promulgated Rule 1925, the concise statement
filed by appellant’s attorney indicating that ‘there
were no non-frivolous matters that can be raised on
appeal’, would be accepted by the Court as a
statement of intent to file an Anders/McClendon
brief). These options are detailed in the Note to
Pa.R.A.P. 1925(c)(4):
Even lawyers seeking to withdraw
pursuant to the procedures set forth in
Anders v. California [] and
Commonwealth v. McClendon, 495
Pa. 467, 434 A.2d 1185 (1981) are
obligated to comply with all rules,
including the filing of a Statement. See
Commonwealth v. Myers, 897 A.2d
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493, 494-496 (Pa.Super. 2006);
Commonwealth v. Ladamus, 896 A.2d
592, 594 (Pa.Super. 2006). However,
because a lawyer will not file an
Anders/McClendon brief without
concluding that there are no
non-frivolous issues to raise on appeal,
this amendment allows a lawyer to file,
in lieu of a Statement, a representation
that no errors have been raised because
the lawyer is (or intends to be) seeking
to withdraw under Anders/McClendon.
At that point, the appellate court will
reverse or remand for a supplemental
Statement and/or opinion if it finds
potentially non-frivolous issues during its
constitutionally required review of the
record.
Pa.R.A.P 1925 at Note (2007) (emphasis added).
....
In sum, this Court cannot conduct a review under
Anders because we do not have a complete record.
“This Court cannot meaningfully review claims raised
on appeal unless we are provided with a full and
complete certified record.” [Commonwealth v.]
Preston, 904 A.2d [1,] 7 [(Pa.Super.2006)], citing
Commonwealth v. O’Black, 897 A.2d 1234, 1240
([Pa.Super.] 2006). Furthermore, absent the proper
filing of any statement of record by counsel, this
Court cannot properly consider counsel’s request to
withdraw.
Commonwealth v. McBride, 957 A.2d 752, 755-758 (Pa.Super. 2008).
Accordingly, we deny Attorney Page’s applications to withdraw and
remand for the filing of a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b) or a statement of intent to file an
Anders brief pursuant to Pa.R.A.P. 1925(c)(4). Either statement must be
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filed with the trial court within 30 days of the date of this memorandum.
Should counsel elect to file a concise statement of errors complained of on
appeal, the trial court shall file a supplemental Rule 1925(a) opinion within
30 days of service of appellant’s concise statement. Should counsel elect to
file a statement of intent to file an Anders brief, a supplemental opinion
from the trial court shall not be required, and the supplemental trial court
record shall be certified and transmitted back to this court.
Applications to withdraw denied. Case remanded for further
proceedings consistent with this memorandum. Jurisdiction retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/13/18
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