Com. v. Bantum, B. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P 65.37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
Appellee
v.
BRIAN KURT BANTUM,
Appellant No. 1476 WDA 2017
Appeal from the Judgment of Sentence August 31, 2017
in the Court of Common Pleas of Blair County
Criminal Division at No(s): CP-07-CR-0002204-2016
BEFORE: SHOGAN, J., KUNSELMAN, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 05, 2019
Brian Kurt Bantum (Appellant) appeals from the August 31, 2017
judgment of sentence imposed after a jury convicted him of person not to
possess a firearm, theft by unlawful taking, receiving stolen property, and
disorderly conduct.
On January 10, 2019, we remanded this case for (1) the trial court to
rule on Appellant's weight -of -the -evidence claim under the correct standard
of review; (2) new counsel to be appointed for Appellant; and (3) the
inclusion of necessary materials in the certified record. See
Commonwealth v. Bantum, A.3d , 2019 WL 156558 (Pa. Super.
2019 (unpublished memorandum).
*Retired Senior Judge assigned to the Superior Court.
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On January 15, 2019, the trial court issued a supplemental opinion,
appointed new counsel, Attorney Edward Zang,' and ensured the inclusion of
necessary materials in the certified record. Attorney Zang has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
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).
Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)
(citations omitted).
Upon review, we conclude that counsel has not complied substantially
with the technical requirements set forth above because counsel has not
filed a petition to withdraw with this Court, provided a copy of said petition
to Appellant, or advised Appellant "of the right to retain new counsel,
1 Accordingly, this Court granted Attorney Mark Zearfaus's motion to
withdraw as counsel. Per Curiam Order, 3/7/2019.
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proceed pro se or raise any additional points worthy of this Court's
attention." Id. at 721.
In light of the foregoing, we direct Attorney Zang to file either an
advocate's brief or a compliant Anders brief and petition to withdraw, along
with an accompanying letter advising Appellant of his rights, within 30 days
of this decision.
Panel jurisdiction retained.
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