Com. v. Jones, A. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ANTHONY JONES
Appellant No. 3291 EDA 2014
Appeal from the Judgment of Sentence entered November 28, 2011
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0015505-2008
BEFORE: OLSON, STABILE, and STRASSBURGER,* JJ.
MEMORANDUM BY STABILE, J.: FILED FEBRUARY 13, 2017
Appellant, Anthony Jones, appeals from the judgment of sentence the
Court of Common Pleas of Philadelphia County (“trial court”) entered on
November 28, 2011. Counsel has filed an amended brief1 under Anders v.
California, 386 U.S. 738 (1967), and petitioned to withdraw as counsel,
alleging that this appeal is wholly frivolous. Upon review, we grant counsel’s
petition for leave to withdraw and affirm Appellant’s judgment of sentence.
The trial court summarized the procedural background of the case in
its Rule 1925(a) opinion, which reads:
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
This Court denied counsel’s first application to withdraw as counsel for
failure to comply with Anders and its progeny. Commonwealth v. Jones,
No. 3291 EDA 2014, unpublished memorandum, at 5 (Pa. Super. filed June
20, 2016).
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The relevant facts regarding the instant appeal are as follows:
On September 26, 2011, Appellant Anthony Jones [] was found
guilty in a waiver trial before the Honorable Ellen Ceisler and was
convicted of [p]ossession of a [f]irearm [p]rohibited. On
November 28, 2011, Judge Ceisler sentenced Appellant to a term
of between three and one half to seven years of imprisonment.
On July 9, 2012, Appellant filed a timely pro se petition under
the Post Conviction Relief Act. Appellant was assigned a new
court appointed attorney, [present counsel], who filed an entry
of appearance on May 3, 2013.
On March 6, 2014, Appellant filed an Amended Petition pursuant
to the Post Conviction Relief Act. On October 30, 2014, Judge
Ceisler reinstated Appellant’s appeal rights nunc pro tunc. On
October 31, 2014, [the trial court] entered an order, pursuant to
Pa.R.A.P. 1925(b)(1), instructing Appellant to file a concise
statement of errors complained of on appeal no later than
twenty-one days after Appellant received notice of said order.
Appellant failed to file such a concise statement within the
required twenty-one days; however, on February 24, 201[5],
[c]ounsel for Appellant did file an untimely statement, pursuant
to Pa.R.A.P. 1925(c)(4), indicating his intent to file an
Anders/McClendon[2] brief[.]
Trial Court Opinion, 4/29/14, at 1-2 (footnotes omitted). Counsel filed his
first Anders brief on September 18, 2015, along with an application to
withdraw as counsel. On June 20, 2016, this Court denied counsel’s
application and remanded for the filing of an amended brief pursuant to
Anders or an advocate brief.
Counsel filed an amended Anders brief and application to withdraw as
counsel on July 19, 2016. The Commonwealth requested, and this Court
____________________________________________
2
Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981).
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granted, multiple extensions to file a brief. On December 19, 2016, the
Commonwealth filed a letter in lieu of a brief.
On appeal, Appellant raises one issue: “Were any meritorious issues
properly raised or preserved in this appeal?” Anders Brief at 7.
Before this Court can review the merits of the underlying issues, we
must first address counsel’s petition to withdraw. Commonwealth v.
Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc). In order for
court-appointed counsel to withdraw, counsel must
(1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; (2) file a brief
referring to anything that arguably might 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 the defendant of his or her right to retain new counsel or
raise any additional points that he or she deems worthy of the
court’s attention.
Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super. 2009) (quoting
Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005)).
Counsel’s amended application to withdraw from representation
provides that counsel reviewed the record and concluded that the appeal is
frivolous. Furthermore, counsel notified Appellant that he was seeking
permission to withdraw and provided Appellant with copies of the petition to
withdraw and his Anders brief. Counsel also advised Appellant of his right
to retain new counsel, proceed pro se, or raise any additional points he
deems worthy of this Court’s attention in a letter attached to his application
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to withdraw. Accordingly, we conclude that counsel has satisfied the
procedural requirements of Anders.
Next, this Court must first address whether counsel’s Anders brief
satisfies the following substantive requirements:
(1) provide a summary of the procedural history and facts,
with citations to the record;
(2) refer to anything in the record 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. 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).
In his Anders brief, counsel has included a statement of the case,
including a procedural history of the case along with citations to the record.
Anders Brief at 8. Counsel has complied with the first requirement.
The second requirement of an Anders brief is to reference anything in
the record that counsel believes arguably supports the appeal. See
Santiago, 978 A.2d at 361. Here, counsel raises one issue, an ineffective
assistance of counsel claim.3 Counsel, therefore, has satisfied the second
Anders requirement.
____________________________________________
3
Counsel’s brief raises six instances of ineffective assistance of counsel;
however, we will treat these instances as one claim.
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The third element of Anders requires counsel to state his conclusion
that the appeal is frivolous, and the fourth element requires counsel to state
his reasons for his conclusion. See id. Counsel’s brief concludes that the
appeal is frivolous and provides his reasoning for such conclusion; therefore,
counsel has complied with the final two prongs of Anders.
As we find that counsel has satisfied the procedural requirements for a
petition to withdraw, complied with the briefing requirements, and advised
Appellant of his right to retain substitute counsel or to proceed pro se, we
must next address the merits of Appellant’s claims.
Appellant’s sole claim is trial counsel ineffectiveness for having
(a) failed to properly investigate the case,
(b) failed to file a motion to make a substantial preliminary
showing that the Appellant was entitled to an in camera or
evidentiary hearing or both on whether the witnesses
mispresented [sic] or invented information that they
supplied,
(c) failed to file a discovery motion,
(d) failed to file a suppression motion regarding the firearm,
(e) failed to object to the Commonwealth’s motion to amend
information to include the date of 2/15/18 [sic], and
(f) fail[ed] to request fingerprint analysis of the firearm.
Anders Brief at 10. The “general rule of deferral to PCRA review remains
the pertinent law on the appropriate timing of review of claims of ineffective
assistance of counsel.” Commonwealth v. Holmes, 79 A.3d 562, 563 (Pa.
2013). In Holmes, our Supreme Court noted only two exceptions to this
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general rule. The first exception recognizes that “there may be an
extraordinary case where the trial court, in the exercise of its discretion,
determines that a claim (or claims) of ineffectiveness is both meritorious and
apparent from the record so that immediate consideration or relief is
warranted.” Id. at 577. The second exception provides that trial courts
have discretion, upon good cause shown, if there are multiple or prolix
claims of counsel ineffectiveness, and the defendant expressly waives PCRA
review. See id. at 563-64.
Upon review we find the claim raised by counsel in the Anders brief to
be frivolous. In the matter sub judice, the trial court would have been
required to supplement the record to determine whether the motions should
have been filed; therefore, the first Holmes exception is inapplicable. Id. at
577. Moreover, the second Holmes exception is inapplicable as Appellant
did not assert good cause or expressly waive his right to PCRA review. Id.
at 563-64.
After satisfying the technical requirements of Anders and Santiago, it
is incumbent upon this Court to “conduct an independent review of the
record to discern if there are any additional non-frivolous issues overlooked
by counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa.
Super. 2015) (citations and footnote omitted). Upon review of the record,
we do not discern any non-frivolous issues that Appellant could have raised.
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We therefore, grant counsel’s application to withdraw and affirm the
judgment of sentence.
Counsel’s application to withdraw granted. Judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/13/2017
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