Com. v. Allis, R. ( 2019 )

J-S28028-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RYAN JAMES ALLIS :
:
Appellant : No. 37 MDA 2019
Appeal from the Judgment of Sentence Entered December 17, 2018
In the Court of Common Pleas of Bradford County Criminal Division at
No(s): CP-08-CR-0000510-2018
BEFORE: BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 14, 2019
Ryan James Allis appeals from the judgment of sentence entered on
December 17, 2018, following his guilty plea to Accidents Involving Death or
Personal Injury, Driving While Operating Privilege Suspended or Revoked, and
Recklessly Endangering Another Person (“REAP”).1 Allis’s counsel has filed an
Anders2 brief and a petition to withdraw as counsel. We deny counsel’s
petition to withdraw and remand with instructions.
We do not reach the merits of the appeal at this time because counsel
has not met the requirements to withdraw pursuant to Anders. Among other
things, an Anders brief must: (1) “provide a summary of the procedural
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S.A. §§ 3742(a) and 1543(a), and 18 Pa.C.S.A. § 2705, respectively.
2 Anders v. California, 386 U.S. 738 (1967).
J-S28028-19
history and facts, with citations to the record” and (2) “refer to anything in
the record that counsel believes arguably supports the appeal.”
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
Counsel maintains that “after a conscientious examination of the entire
record,” he believes the appeal is frivolous. Anders Br. at 13 (emphasis
added). Our review reveals that the notes of testimony from the guilty plea
hearing are not part of the certified record. Further, it appears that counsel
did not request the transcript and that the hearing was never transcribed.
Without this testimony, “[c]ounsel could not have fulfilled his duty to review
the entire record for any non-frivolous issues.” Commonwealth v. Flowers,
113 A.3d 1246, 1250 (Pa.Super. 2015) (denying petition to withdraw as
counsel and remanding case where counsel failed to include notes of testimony
from guilty plea hearing in certified record).
Accordingly, we deny counsel’s petition to withdraw and remand for
counsel to obtain the missing notes of testimony and to file a new Anders
brief and petition to withdraw or an advocate’s brief, within 60 days from the
date of this order.
Petition denied. Case remanded with instructions. Jurisdiction retained.
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