Com. v. Walker, P. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
PETE WALKER
Appellant No. 2947 EDA 2015
Appeal from the Judgment of Sentence June 17, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No: CP-23-CR-0002696-2001
BEFORE: STABILE, MOULTON, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED MARCH 30, 2017
Appellant, Pete Walker, appeals from the June 17, 2015 judgment of
sentence entered in the Court of Common Pleas of Delaware County (“trial
court”) following a revocation of the Appellant’s parole after a Gagnon II
hearing. Counsel has filed a brief in accordance with Anders v. California,
368 U.S. 738 (1969), and an application for leave to withdraw. Following
review, we grant counsel’s application for leave to withdraw and quash
Appellant’s appeal.
Appellant pled guilty to robbery of a motor vehicle and recklessly
endangering another person (“REAP”) on July 16, 2003.1 Appellant was
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18 Pa.C.S.A. § 3702 and § 2705 respectively.
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sentenced to an aggregate term of 11.5-23 months of incarceration followed
by three years’ probation with no credit for time previously served.
Following a Gagnon II hearing on September 14, 2010, Appellant’s
probation was revoked and he was resentenced to 6-12 months of
incarceration followed by two years’ probation. After another alleged
violation, a Gagnon II hearing was held on June 17, 2015, after which the
trial court revoked Appellant’s probation and imposed a sentence of 1-2
years’ incarceration.
On August 20, 2015, Appellant filed a “Petition for Writ of Habeas
Corpus and/or a Petition for Time Credit.” The trial court dismissed this
petition on August 25, 2015. Subsequently, Appellant field a pro se petition
to Appoint counsel which was denied on September 10, 2015. Appellant
filed a pro se notice of appeal on September 21, 2015; however, this notice
did not indicate what order was being appealed.
Appellant’s counsel filed, in this Court, an application to withdraw as
counsel and an Anders brief, wherein counsel raises one issue for our
review.
I. Whether the Superior Court of Pennsylvania has jurisdiction to
consider Appellant’s untimely appeal where Appellant alleges
ineffective assistance of counsel as a result of prior counsel
failing to file a timely notice of appeal.
Anders Brief at 4. Appellate counsel filed his Anders brief on October 17,
2016, and an application to withdraw as counsel on October 18, 2016. This
Court issued an order on November 14, 2016, directing counsel to correct
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his letter advising Appellant of his right to proceed pro se or with privately
retained counsel. Counsel complied on October 18, 2016. Appellant did not
file a reply to the Anders Brief.
Before this Court can review the merits of the underlying issues, we
must first address counsel’s petition to withdraw. Commonwealth v.
Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc). In order for
court-appointed counsel to withdraw, counsel must
(1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; (2) file a brief
referring to anything that arguably might support the appeal but
which does not resemble a “no-merit” letter or amicus curiae
brief; and (3) furnish a copy of the brief to the defendant and
advise the defendant of his or her right to retain new counsel or
raise any additional points that he or she deems worthy of the
court’s attention.
Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa. Super. 2009) (quoting
Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005)).
Upon review, we conclude counsel has satisfied the procedural
requirements set forth in Anders. In the brief, counsel explains his
conclusion that the issue sought to be raised by Appellant is wholly frivolous.
On October 14, 2016, counsel sent a copy of the Anders brief to Appellant.
Following this Court’s November 14, 2016 order, counsel sent an amended
letter advising Appellant of his right to retain new counsel or act on his own
behalf.
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Next, this Court must first address whether counsel’s Anders brief
satisfies the following substantive requirements:
(1) provide a summary of the procedural history and facts,
with citations to the record;
(2) refer to anything in the record 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.
In the Anders brief, counsel has included a statement of the case that
includes a procedural history of the case. Anders Brief at 5-6. Counsel has
complied with the first requirement.
The second required element of an Anders brief is reference to
anything in the record that counsel believes arguably supports the appeal.
See Santiago, 978 A.2d at 361. Here, counsel raises one issue: whether
Appellant can raise the issue of trial counsel ineffectiveness for failing to file
a timely notice of appeal on direct appeal. Anders Brief at 6. Counsel,
therefore, has satisfied the second Anders requirement.
The third element of Anders requires counsel to state his conclusion
that the appeal is frivolous, which counsel complied with in his brief.2 Id. at
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2
Counsel complied with this requirement; however, compliance was by the
slimmest of margins.
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7. The final element of Anders requires counsel to provide his reasons for
concluding that the appeal is frivolous. Santiago, 978 A.2d at 361.
Counsel complied with this requirement and satisfied the final prong of the
Anders test. Anders Brief at 6-7.
We find counsel has satisfied the requirements for a petition to
withdraw. He complied with the briefing requirements, as explained above.
Appellant was advised of his right to retain substitute counsel or to proceed
pro se to bring any attention points to this Court's attention. Thus, we must
next address the merits.
Appellant’s sole claim is that trial counsel was ineffective for failing to
file a timely notice of appeal. Anders Brief at 4. It is undisputed that trial
counsel did not file a timely notice of appeal. The “general rule of deferral to
PCRA review remains the pertinent law on the appropriate timing of review
of claims of ineffective assistance of counsel.” Commonwealth v. Holmes,
79 A.3d 562, 563 (Pa. 2013). In Holmes, our Supreme Court noted only
two exceptions to this general rule. The first exception is where “there may
be an extraordinary case where the trial court, in the exercise of its
discretion, determines that a claim (or claims) of ineffectiveness if both
meritorious and apparent from the record so that immediate consideration or
relief is warranted.” Id. at 577. The second exception provides that trial
courts have discretion, upon good cause shown, if there are multiple or
prolix claims of counsel ineffectiveness, and the defendant expressly waives
PCRA review. See id. at 563-64.
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In the matter sub judice, the trial court did not grant relief and there is
nothing in the record indicating that Appellant expressly waived PCRA
review. Thus, the trial court did not have jurisdiction to consider Appellant’s
ineffective assistance of counsel claim. See Commonwealth v. Harris,
114 A.3d 1, 6 (Pa. Super. 2015). This Court “may sua sponte consider
whether we have jurisdiction to consider the merits of the claim presented.”
Id. (citation omitted). As the trial court did not have jurisdiction to consider
the merits of Appellant’s ineffectiveness claims, this Court does not have
jurisdiction to consider the appeal of these claims. See id. As counsel
noted, these claims should be raised in Appellant’s first PCRA petition.
Moreover, while Appellant attempted to file an appeal nunc pro tunc,
Appellant never requested such relief from the trial court.
As counsel has complied with the technical requirements of Anders
and Santiago, this Court must “conduct an independent review for the
record to discern if there are any additional non-frivolous issues overlooked
by counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa.
Super. 2015). Upon review, we do not discern any non-frivolous issues that
Appellant could have raised. We therefore grant counsel’s application to
withdraw and quash Appellant’s appeal.
Appeal quashed. Application to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/30/2017
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