Com. v. Kauffman, J. ( 2019 )

J-S79033-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JACKIE S. KAUFFMAN, :
:
Appellant : No. 1170 MDA 2018
Appeal from the Judgment of Sentence Entered May 11, 2018
in the Court of Common Pleas of Mifflin County
Criminal Division at No(s): CP-44-CR-0000653-2016
BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED FEBRUARY 12, 2019
Jackie S. Kauffman (“Kauffman”) appeals from the judgment of
sentence entered after a jury convicted her of endangering the welfare of
children (“EWOC”).1 Additionally, counsel for Kauffman, Robert R. Ferguson,
Esquire (“Attorney Ferguson”), has filed a Petition to Withdraw as counsel and
a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).2 As we conclude
that Attorney Ferguson has failed to comply with the requirements of
Santiago, we deny the Petition to Withdraw and remand for counsel to file
____________________________________________
1 See 18 Pa.C.S.A. § 4304(a)(1).
2 Instead of filing the Petition to Withdraw and Anders Brief as separate
documents, counsel filed a single document.
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either an Anders/Santiago brief that satisfies all of the requirements, or an
advocate’s brief on Kauffman’s behalf.
Briefly, Kauffman’s conviction arises out of her failure to protect her
minor daughter from being exposed to, and eventually assaulted by, a known
sex offender, Kauffman’s paramour. After a jury found Kauffman guilty of
EWOC, the trial court sentenced her to serve one to two years in prison.
Kauffman, through Attorney Ferguson, timely filed a Post-sentence Motion
challenging the sufficiency and weight of the evidence, as well as the
discretionary aspects of sentencing. The trial court denied the Post-sentence
Motion by an Order entered on June 26, 2018.
Kauffman timely filed a counseled Notice of Appeal, followed by a court-
ordered Pa.R.A.P. 1925(b) Concise Statement of errors complained of on
appeal. In the Concise Statement, Attorney Ferguson announced his intent to
file an Anders brief, and identified that Kauffman wished to pursue her
sufficiency of the evidence and excessiveness of sentencing challenges. The
trial court filed a Pa.R.A.P. 1925(a) Opinion, determining that both of
Kauffman’s identified issues lacked merit. Thereafter, Attorney Ferguson filed
the Petition to Withdraw/Anders Brief. Kauffman did not file a pro se brief or
respond to the Petition to Withdraw/Anders Brief.
We must first address Attorney Ferguson’s Petition to Withdraw before
reaching the merits of the issues raised in the Anders Brief. See
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en
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banc) (stating that “[w]hen faced with a purported Anders brief, this Court
may not review the merits of any possible underlying issues without first
examining counsel’s request to withdraw.”).
Prior to withdrawing as counsel on a direct appeal under Anders,
counsel must file a brief that meets the requirements established by our
Supreme Court in Santiago. The brief must
(1) provide 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. 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 (emphasis added); see also id. at 360 (stating,
“we hold that a discussion of counsel’s reasons for believing that the client’s
appeal is frivolous is mandatory and must be included in counsel’s brief.”)
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(emphasis added).3 This Court has stated that the above-listed requirements
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 [her] direct appeal.” Commonwealth v. Orellana, 86 A.3d 877,
881 (Pa. Super. 2014) (some citations and brackets omitted).
Here, though Attorney Ferguson states in his Argument section that
Kauffman wishes to raise a sufficiency challenge and excessiveness of
sentence challenge, nowhere does he (1) state his reasons for determining
that these claims are frivolous; or (2) refer to anything in the record that he
believes arguably supports the appeal, in violation of Santiago. See
Santiago, supra. Accordingly, we deny Attorney Ferguson’s Petition to
Withdraw without prejudice, and remand so that Attorney Ferguson may
comply with Santiago, or file an advocate’s brief.
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3The Santiago Court explained why it is important that counsel articulate his
or her reasons for concluding that an appeal is frivolous as follows:
We are persuaded that requiring counsel to articulate the basis for
his or her conclusion of frivolity will advance the twin functions
counsel’s Anders brief is to serve, i.e., it will assist the
intermediate appellate courts in determining whether counsel has
conducted a thorough and diligent review of the case to discover
appealable issues and whether the appeal is indeed frivolous. …
[T]he task of articulating reasons can shed new light on what may
at first appear to be an open-and-shut issue. It can also reveal to
counsel previously unrecognized aspects of the record or the law
and thereby provide a safeguard against a hastily-drawn or
mistaken conclusion of frivolity.
Santiago, 978 A.2d at 360-61 (internal citations omitted).
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Petition to withdraw denied. Case remanded with direction that counsel
file either an Anders/Santiago brief or an advocate’s brief within sixty days
of the date of this Memorandum. Panel jurisdiction retained.
Judge Shogan joins the memorandum.
Judge Olson files a dissenting memorandum.
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