Com. v. Rang, C. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHASE M. RANG :
:
Appellant : No. 67 MDA 2019
Appeal from the Judgment of Sentence Entered April 18, 2018
In the Court of Common Pleas of Schuylkill County Criminal Division at
No(s): CP-54-CR-0001229-2006
CP-54-CR-0001818-2009
BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.
MEMORANDUM BY BOWES, J.: FILED DECEMBER 19, 2019
Chase M. Rang appeals from the judgment of sentence of one to two
years of incarceration followed by three years of probation that was imposed
following a probation revocation hearing and a successful motion for
reconsideration. Appellant’s counsel, Robert M. Reedy, Esquire, 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).
We deny counsel’s request to withdraw and remand for counsel to take
appropriate action in conformance with our decision.
Appellant pled guilty to one count each of criminal trespass and criminal
conspiracy, along with five counts each of theft by unlawful taking and
receiving stolen property and was sentenced to a term of imprisonment
followed by probation supervision. On February 20, 2018, Appellant
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appeared for a probation revocation hearing.1 At the conclusion of the
hearing, Appellant was resentenced to serve two to four years of incarceration
and a consecutive one year term of probation. Appellant filed a motion to
modify sentence, which was granted. On April 18, 2018, the court modified
Appellant’s sentence to one to two years of incarceration followed by a three
year term of probation.
A pro se “post-sentence motion appeal,” and request for a Grazier2
hearing followed. On May 24, 2018, following a hearing, the trial court
granted Appellant’s request to proceed pro se, instructed the clerk of courts
to insure that Appellant’s motion was correctly docketed as a notice of appeal,
and ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement. In its
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1Appellant stipulated to the violations alleged by the probation department
which included:
use of illegal controlled substances and fighting with probation
officers. State Parole/Probation Officer Ronald Thompson testified
to [Appellant’s] history of fighting with officers, use of illegal
controlled substances and failure to complete drug and alcohol
treatment and community service despite given opportunities to
do so. According to Officer Thompson, on the day of the incident
leading to the most recent revocation proceedings [Appellant]
admitted using heroin and marijuana and tested positive for such
use. Further, [Appellant] had resisted arrest. In addition,
[Appellant] also possessed illegal drugs that day which Officer
Thompson believed were heroin and methamphetamine.
Trial Court Opinion, 7/6/18, at 2 n. 1.
2 Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998).
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June 4, 2018 order, the trial court also noted that Appellant had included the
case caption for CP-54-CR-1818-20093 on his notice of appeal, but had made
it clear that he only intended to challenge his conviction at this case. Appellant
filed a concise statement of errors complained of on appeal and on July 6,
2018, the trial court filed its opinion. On September 17, 2018, we quashed
Appellant’s direct appeal after his notice of appeal was not timely filed.
Appellant filed a pro se PCRA petition seeking the reinstatement of his direct
appeal rights, which was granted on November 30, 2018.
On January 2, 2019, Appellant filed a pro se notice of appeal, again
including CP-54-CR-1818-2009 in his case caption. The trial court ordered
Appellant to file a new Pa.R.A.P. 1925(b) concise statement. In his statement,
Appellant referenced the sentence imposed at CP-54-CR-1818-2009, but only
to the extent necessary to challenge how his sentence imposed at this case
has been aggregated with the sentence previously imposed at CP-54-CR-
1818-2009. He does not contest any aspect of the case listed at that criminal
action number.
On February 22, 2019, this Court issued a rule to show cause why the
appeal should not be quashed pursuant to Commonwealth v. Walker, 185
A.3d 969 (Pa. 2018), since appellant filed one notice of appeal that included
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3 This case was heard before a different judge and involved separate statutory
sexual assault and related charges. On May 10, 2010, that trial court
sentenced Appellant to serve two to four years of incarceration consecutive to
the sentence of incarceration Appellant was already serving at the instant
case. As a result of the consecutive sentence imposed, the department of
corrections aggregated Appellant’s two sentences.
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two docket numbers. Appellant did not file a response to our rule to show
cause.
On March 13, 2019, the trial court filed its opinion, in which it
acknowledged that Appellant had included CP-54-CR-1818-2009 and that the
trial court was not the presiding judge in that case.
On May 24, 2019, Appellant filed an application requesting the
appointment of counsel to represent him on appeal. On June 11, 2019, the
trial court acceded to Appellant’s request and appointed aforementioned
counsel. In this Court, in lieu of an advocate’s brief, counsel filed an Anders
brief and a petition to withdraw. This filing triggers specific requirements.
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.
Commonwealth v. Woods, 939 A.2d 896, 898 (Pa.Super. 2007). Our
Supreme Court has also 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 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
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record, controlling case law, and/or statues on point that have led
to the conclusion that the appeal is frivolous.
Santiago, supra at 361. If counsel has met these obligations, “it then
becomes the responsibility of the reviewing court to make a full examination
of the proceedings and make an independent judgment to decide whether the
appeal is in fact wholly frivolous.” Id. at 354 n.5.
Counsel’s petition to withdraw and Anders brief does not substantially
comply with the technical requirements set forth above. Counsel has set forth
a limited procedural history with no factual summary. Additionally, while
counsel vaguely identifies three issues that arguably support the appeal, he
has failed to include an analysis of any of them. Instead, counsel concludes
that the Walker decision requires the court to quash Appellant’s appeal.
Anders brief at 8.
We disagree with Appellant’s conclusion that Walker necessitates
quashal here. From our independent review of the record, it is clear that
Appellant’s appeal relates only to CP-54-CR-1229-2006. Therefore, although
Appellant filed a single notice of appeal listing two docket numbers, quashal
is not required because Appellant’s contentions concern only to the April 18,
2018 order that is the subject of this appeal. See Commonwealth v. Sayles,
1365 WDA 2018, 2019 WL 2353469, at *3 (Pa.Super. June 4, 2019) (non-
precedential decision) (holding that Walker did not apply to appeal involving
issues only related to one of the two docket numbers at issue). As such, we
cannot conclude that counsel met his obligations because of his categorical
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determination that this appeal must be quashed. Therefore, we deny
counsel’s petition to withdraw and remand with instructions for counsel to
either file an advocate’s brief within 30 days or another Anders brief and
petition seeking to withdraw within 30 days of the date of this memorandum
that complies with the requirements articulated above. See Santiago, supra
at 361.
Petition to withdraw denied. Case remanded with instructions. Panel
jurisdiction retained.
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