Com. v. Taylor, J. ( 2017 )

J-S62033-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JEFFREY TAYLOR, :
:
Appellant : No. 519 MDA 2017
Appeal from the Judgment of Sentence December 30, 2014
in the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0002712-2013
BEFORE: STABILE, MOULTON, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 11, 2017
Jeffrey Taylor (Appellant) appeals nunc pro tunc from the December
30, 2014 judgment of sentence of three to six years of incarceration after a
jury found him guilty of one count each of burglary and theft by unlawful
taking. Counsel has filed a petition to withdraw and a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we deny counsel’s
petition without prejudice and remand for further proceedings consistent
with this memorandum.
Appellant was charged with several crimes as a result of a burglary
incident that occurred in the early morning hours of July 27, 2013.
Appellant was arrested and released on bail. A jury trial was held and on
*Retired Senior Judge assigned to the Superior Court.
J-S62033-17
November 4, 2014,1 and Appellant was found guilty of the aforementioned
charges. On December 30, 2014, Appellant was sentenced as outlined
above. Appellant did not file a direct appeal.
On January 13, 2016, Appellant pro se filed a timely petition pursuant
to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Attorney
Jeffrey Yelen was appointed, and he filed a supplemental petition requesting
the reinstatement of Appellant’s right to a direct appeal nunc pro tunc. The
petition was granted, and Appellant timely filed a notice of appeal to this
Court. Attorney Yelen then requested to withdraw as counsel, and the trial
court permitted counsel to withdraw and appointed Attorney Matthew Kelly
to represent Appellant on his direct appeal.
The trial court ordered that Appellant file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925. Appellant filed a
concise statement raising two issues concerning the ineffective assistance of
trial counsel. The trial court filed an opinion holding that issues with respect
to the ineffective assistance of counsel are not available for review on direct
appeal and therefore Appellant’s judgment of sentence should be affirmed.
Trial Court Opinion, 5/8/2017, at 1.
1 The delay between the filing of charges and the jury trial was due to the
fact that Appellant absconded while on bail on at least one occasion.
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In this Court, counsel for Appellant filed both an Anders brief and a
petition to withdraw as counsel.2 Accordingly, the following principles guide
our review of this matter.
Direct appeal counsel seeking to withdraw under Anders
must file a petition averring that, after a conscientious
examination of the record, counsel finds the appeal to be wholly
frivolous. Counsel must also file an Anders brief setting forth
issues that might arguably support the appeal along with any
other issues necessary for the effective appellate presentation
thereof….
Anders counsel must also provide a copy of the Anders
petition and brief to the appellant, advising the appellant of the
right to retain new counsel, proceed pro se or raise any
additional points worthy of this Court’s attention.
If counsel does not fulfill the aforesaid technical
requirements of Anders, this Court will deny the petition to
withdraw and remand the case with appropriate instructions
(e.g., directing counsel either to comply with Anders or file an
advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
petition and brief satisfy Anders, we will then undertake our
own review of the appeal to determine if it is wholly frivolous. If
the appeal is frivolous, we will grant the withdrawal petition and
affirm the judgment of sentence. However, if there are non-
frivolous issues, we will deny the petition and remand for the
filing of an advocate’s brief.
Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)
(citations omitted).
Our Supreme Court has clarified portions of the Anders procedure:
[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
2 The Commonwealth has elected not to file a brief.
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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. 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.
Counsel has failed to satisfy these requirements. Although counsel
states he examined the record and concluded that this appeal is frivolous,
Petition to Withdraw As Counsel, 7/19/2017, at ¶ 3, our review of the record
reveals the absence of the transcript of Appellant’s jury trial. 3 “Without
these notes of testimony, [c]ounsel could not have fulfilled his duty to
review the record for any non-frivolous issues.” Commonwealth v.
Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015).
Moreover, on appeal, counsel has identified and preserved only two
issues for review, both of which concern the ineffective assistance of trial
counsel. It is not clear to this Court how counsel could have identified these
issues without the benefit of the transcript from the jury trial. Additionally,
as the trial court and counsel observe, these issues are not even ripe for
review at this juncture. See Anders Brief at 5 (“It is established that review
of claims of ineffective assistance of counsel be deferred to PCRA review.”);
Trial Court Opinion, 5/8/2017, at 1 (same). After Appellant worked to have
3 In addition, counsel has not cited to this transcript in his Anders brief.
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his direct appeal rights reinstated, we cannot condone counsel’s complete
failure to identify any issue that could arguably support appeal.
Without the transcript of the jury trial, neither counsel nor this Court
can satisfy its obligations under Anders and its progeny. See Flowers, 113
A.3d at 1250 (holding that “this Court must conduct an independent review
of the record to discern if there are any additional, non-frivolous issues
overlooked by counsel”); Commonwealth v. Curry, 931 A.2d 700, 702 (Pa.
Super. 2007) (“Failure to supply a complete record to this Court for
independent review will render a request to withdraw technically
inadequate.”). Accordingly, we deny counsel’s petition to withdraw and
remand this case for further proceedings consistent with this memorandum.
Upon remand, counsel must obtain the missing transcript and ensure
its inclusion in the certified record. Flowers, 113 A.3d at 1251. After
review of the entire record, counsel shall file either an advocate’s brief or a
new petition to withdraw and Anders brief that fully comply with the
requirements detailed above.
Motion for leave to withdraw denied. Case remanded with
instructions. Panel jurisdiction retained.
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