Com. v. Fulger, D. ( 2017 )

J-S06036-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
DUANE E. FULGER
Appellant No. 2812 EDA 2016
Appeal from the Judgment of Sentence August 18, 2016
in the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0006387-2014
BEFORE: MOULTON, RANSOM, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MARCH 03, 2017
Appellant, Duane E. Fulger, appeals from the judgment of sentence
entered in the Montgomery County Court of Common Pleas after a jury
found him guilty of rape of a child1 and related offenses. Appellant’s counsel
(“Counsel”) has filed a petition to withdraw from representation and an
Anders2 brief. We deny Counsel’s petition to withdraw.
It is well settled that
[t]his Court must first pass upon counsel’s petition to
withdraw before reviewing the merits of the underlying
issues presented by [the appellant].
Prior to withdrawing as counsel on a direct appeal under
Anders, counsel must file a brief that meets the
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 3121(c).
2
Anders v. California, 386 U.S. 738 (1967); see also Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
J-S06036-17
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. Counsel also must provide a
copy of the Anders brief to his client. Attending the brief
must be a letter that advises the client of his right to: “(1)
retain new counsel to pursue the appeal; (2) proceed pro
se on appeal; or (3) raise any points that the appellant
deems worthy of the court[’]s attention in addition to the
points raised by counsel in the Anders brief.”
Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014)
(some citations omitted). Counsel “must also provide a copy of the Anders
petition and brief to the appellant[.]” Commonwealth v. Wrecks, 931
A.2d 717, 721 (Pa. Super. 2007).
Instantly, in his petition to withdraw, Counsel requests
that he be permitted to withdraw as counsel, so that
Defendant/Appellant may either be appointed new
counsel or proceed pro se in pursuing the filing of an
Amended Concise Statement of Matters Complained of on
Appeal and subsequent briefing and litigation of his direct
appeal.
-2-
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Counsel’s Pet. to Withdraw, 11/8/16, at ¶ 13 (emphasis added). 3
Additionally, Counsel’s petition does not assert that Counsel conscientiously
reviewed the record and determined that an appeal was frivolous.4
We further note that in response to this Court’s order, Counsel has
filed a September 28, 2016 letter to Appellant. Although Counsel’s letter
more properly apprised Appellant that he had the right to, inter alia, “retain
new counsel,” it did not clearly state that Counsel intended to withdraw.
Moreover, the letter adverted only to providing Appellant with a copy of
Counsel’s Pa.R.A.P. 1925(c)(4) statement.
Thus, we find insufficient indication that Appellant (1) has been
properly apprised of Counsel’s intent to withdraw on appeal, (2) understands
his right to retain new counsel or proceed pro se, and (3) has been provided
a copy of Counsel’s petition to withdraw and Anders brief. Accordingly, we
deny Counsel’s petition to withdraw.
Within fifteen days of this memorandum, Counsel shall file in this
Court a new petition to withdraw from representation and a copy of a new
letter to Appellant. The letter shall apprise Appellant of Counsel’s intention
to withdraw and Appellant’s right to retain new counsel or proceed pro se.
3
The proofs of service filed with Counsel’s Anders brief and petition to
withdraw do not indicate service of those documents on Appellant.
4
Counsel’s Anders brief does contain a statement that he conscientiously
reviewed the record and determined the appeal possessed no meritorious
issues and was wholly frivolous. Anders Brief at 3, 11-12.
-3-
J-S06036-17
Additionally, Counsel shall attach to the letter copies of his new petition to
withdraw and his Anders brief. Appellant shall have sixty days from the
date Counsel files the new petition to withdraw and letter in this Court to
respond. The Prothonotary of this Court shall serve a copy of this
memorandum on Appellant.
Petition to withdraw denied with instructions. Panel jurisdiction
retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/3/2017
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