Com. v. Perry, L. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
LORIN ALEXANDER PERRY :
:
Appellant : No. 1359 WDA 2021
Appeal from the Judgment of Sentence Entered August 24, 2021
In the Court of Common Pleas of Beaver County Criminal Division at
No(s): CP-04-CR-0001406-2020,
CP-04-CR-0001855-2020
BEFORE: NICHOLS, J., MURRAY, J., and KING, J.
MEMORANDUM BY NICHOLS, J.: FILED: JUNE 28, 2022
Appellant Lorin Alexander Perry appeals from the judgment of sentence
imposed after he pled nolo contendere to involuntary deviate sexual
intercourse (IDSI) and related offenses. Appellant’s counsel (Counsel) has
filed a petition to withdraw and an Anders/Santiago1 brief. Appellant has
also filed an application to discontinue the appeal with respect to Docket No.
1855-2020. For the reasons stated herein, we dismiss Appellant’s application
to discontinue the appeal as moot, deny Counsel’s petition to withdraw, and
direct Counsel to submit an amended Anders/Santiago brief or an advocate’s
brief on Appellant’s behalf.
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1Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
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Briefly, at Docket No. 1406-2020, the Commonwealth charged Appellant
with five counts of indecent assault of a person less than thirteen years old,
three counts each of aggravated indecent assault without consent and
indecent assault without consent, two counts of aggravated indecent assault
of a person less than thirteen years old, and one count each of statutory sexual
assault, IDSI of a person less than sixteen years old, unlawful contact with a
minor, aggravated indecent assault of a person less than sixteen years old,
corruption of minors, endangering welfare of a child, and indecent assault of
a person less than sixteen years old.2 See Criminal Information, Docket No.
1406-2020, 10/5/20, at 1-3 (unpaginated). At Docket No. 1855-2020, the
Commonwealth charged Appellant with five counts of child pornography and
one count of criminal use of communications facility.3 See Criminal
Information, Docket No. 1855-2020, 12/29/20, at 1-2 (unpaginated).
On April 22, 2021, Appellant entered nolo contendere pleas to two
counts of aggravated indecent assault of a person less than thirteen old, and
one count each of IDSI of a person less than sixteen years old, aggravated
indecent assault of a person less than sixteen years old, and endangering
welfare of a child at Docket No. 1406-2020 and to all of the charges at Docket
No. 1855-2020. In exchange, the Commonwealth withdrew the remaining
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218 Pa.C.S. §§ 3126(a)(7), 3125(a)(1), 3126(a)(1), 3125(a)(7), 3122.1(b),
3123(a)(7), 6318(a)(1), 3125(a)(8), 6301(a)(1)(ii), 4304(a), and
3126(a)(8), respectively.
3 18 Pa.C.S. §§ 6312(d) and 7512(a), respectively.
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charges at Docket No. 1406-2020. The trial court subsequently sentenced
Appellant to an aggregate term of thirteen to thirty years’ incarceration
followed by a term of nine years’ probation. Further, the trial court determined
that Appellant was a sexually violent predator (SVP). See 42 Pa.C.S. §
9799.24.
Appellant filed a timely post-sentence motion requesting to withdraw his
plea, which the trial court denied. Appellant filed a single, timely notice of
appeal that included both trial court docket numbers. The trial court did not
order Appellant to comply with Pa.R.A.P. 1925(b). The trial court issued a
Rule 1925(a) opinion addressing Appellant’s request to withdraw his plea, the
trial court’s jurisdiction, and both the legality and discretionary aspects of
Appellant’s sentence.4 See Trial Ct. Op., 11/15/21, at 5-14.
On January 3, 2022, 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). Even though Appellant did not file a timely response,
this Court discharged the rule to show cause order and deferred the Walker
issue to the present panel. Order, 1/21/22. Appellant subsequently filed an
application to discontinue the appeal with respect to Docket No. 1855-2020
on January 24, 2022. This Court deferred Appellant’s application to
discontinue to the present panel. Order, 2/1/22.
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4 The trial court also noted that any claims of ineffective assistance of counsel
that Appellant might seek to raise should be deferred to PCRA review. Trial
Ct. Op. at 14.
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Walker Issues
Before addressing Counsel’s Anders/Santiago brief, we must consider
whether this appeal is properly before this Court. In Walker, our Supreme
Court held that “prospectively, where a single order resolves issues arising on
more than one docket, separate notices of appeal must be filed for each case.”
Walker, 185 A.3d at 971. “The failure to do so,” the Court continued, “will
result in quashal of the appeal.” Id. at 977 (footnote omitted); see also
Pa.R.A.P. 341, Note. Subsequently, in Commonwealth v. Young, 265 A.3d
462 (Pa. 2021), our Supreme Court held that appellate courts have discretion
to remand an appeal to the trial court for the appellant to file amended notices
of appeal to cure a defect under Walker. Young, 265 A.3d at 475-78 (citing,
inter alia, Pa.R.A.P. 902; Commonwealth v. Williams, 106 A.3d 583, 586-
88 (Pa. 2014)).
Additionally, this Court has recognized that an appellant’s failure to file
separate notices of appeal may be excused where there was a breakdown in
the operations of the court. See, e.g., Commonwealth v. Larkin, 235 A.3d
350, 353-54 (Pa. Super. 2020) (en banc); Commonwealth v. Stansbury,
219 A.3d 157, 160 (Pa. Super. 2019). In Stansbury, the PCRA court advised
the appellant that he had thirty days “‘to file a written notice of appeal to the
Superior Court. Said notice of appeal must be filed with the Clerk of Courts
. . . .’” Stansbury, 219 A.3d at 159 (quoting trial court order, emphases in
original). The Stansbury Court concluded that the PCRA court’s failure to
advise the appellant of the need to file separate notices of appeal constituted
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“a breakdown in court operations such that we may overlook” any Walker
defect and declined to quash the appeal. Id. at 160; see also Larkin, 235
A.3d at 353-54 (declining to quash the appeal after concluding that a
breakdown in the court system occurred when the PCRA court’s order informed
the appellant he had thirty days to file “an appeal”).
Here, Appellant received a written “statement of rights following
sentence,” which informed Appellant that he could file “a notice of appeal”
within thirty days of the date of sentence or the court’s decision on any timely
post-sentence motions. Statement of Rights Following Sentence, 8/25/21, at
2 (unpaginated) (emphasis added). Counsel signed that statement on behalf
of Appellant and himself.5 Id. Further, the trial court’s order denying
Appellant’s post-sentence motion directed Counsel to “confer with [Appellant]
regarding any potential appeal in these cases within 10 days of today’s date.”
Trial Ct. Order, 10/12/21. Appellant timely filed a single notice of appeal
listing both docket numbers on November 1, 2021.
Considering Appellant’s actions in conjunction with the trial court’s
instructions to Appellant to file a single notice of appeal, we conclude that “a
breakdown in court operations [occurred] such that we may overlook” any
record deficiencies and decline to quash pursuant to Walker. See Larkin,
235 A.3d at 353-54; Stansbury, 219 A.3d at 160. Further, we decline
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5 Appellant participated in his sentencing hearing via teleconference. N.T.
Sentencing Hr’g, 8/24/21, at 2. Appellant stated that he agreed to counsel
signing the statement of rights on his behalf. Id. at 89.
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remand this matter to the trial court for Appellant to file amended notices of
appeal. Cf. Young, 265 A.3d at 475-78 (holding that appellate courts have
discretion to remand an appeal to the trial court for the appellant to file
amended notices of appeal to cure a Walker defect). In light of our conclusion
that Appellant’s single notice of appeal does not run afoul of Walker and
Pa.R.A.P. 341, we deny Appellant’s application to discontinue the appeal with
respect to Docket No. 1855-2020 as moot.
Counsel’s Anders/Santiago Brief
In the Anders/Santiago brief, Counsel concludes that “[t]here is no
non-frivolous issue for appeal.” Anders/Santiago Brief at 3.
“When faced with a purported Anders brief, this Court may not review
the merits of any possible underlying issues without first examining counsel’s
request to withdraw.” Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa.
Super. 2008) (citation omitted). Counsel must comply with the technical
requirements for petitioning to withdraw by (1) filing a petition for leave to
withdraw stating that after making a conscientious examination of the record,
counsel has determined that the appeal would be frivolous; (2) providing a
copy of the brief to the appellant; and (3) advising the appellant that he has
the right to retain private counsel, proceed pro se, or raise additional
arguments that the appellant considers worthy of the court’s attention. See
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en
banc). In an Anders brief, counsel must set forth the issues that the
defendant wishes to raise and any other claims necessary to effectuate
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appellate presentation of those issues. Commonwealth v. Smith, 700 A.2d
1301, 1303 (Pa. Super. 1997). While counsel need not raise issues if he
believes there are none, he should “flag” those issues and include relevant
case citations and references to the record. Id. at 1304.
Additionally, counsel must file a brief that meets the requirements
established by the Pennsylvania Supreme Court in Santiago, namely:
(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.
“Once counsel has satisfied the above requirements, it is then this
Court’s duty to conduct its own review of the trial court’s proceedings and
render an independent judgment as to whether the appeal is, in fact, wholly
frivolous.” Goodwin, 928 A.2d at 291 (citation omitted). This includes “an
independent review of 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) (citation and footnote omitted).
Here, Counsel filed a petition to withdraw indicating that he reviewed
the record and determined that an appeal is frivolous and without merit.
Counsel also filed a copy of the letter he sent to Appellant, which indicates
that Counsel sent Appellant a copy of the amended Anders/Santiago brief
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and advised Appellant that he may proceed pro se or retain private counsel to
raise any additional issues he believes should be brought to this Court’s
attention.6
However, Counsel has failed to identify the issues that Appellant wishes
to raise on appeal. See Smith, 700 A.2d at 1303-04. Further, Counsel has
failed to provide citations to controlling case law and/or statutes to support
his conclusion that this appeal is frivolous. See Santiago, 978 A.2d at 361.
Because Counsel did not address the merits of the claims Appellant seeks to
raise on appeal, we are unable to determine whether Appellant’s appeal is
wholly frivolous. Therefore, we must deny Counsel’s petition to withdraw.
See id. at 358 (stating that “only [complete frivolity] supports counsel’s
request to withdraw and a court’s order granting the request” (citation
omitted)).
Accordingly, we deny Counsel’s petition to withdraw and direct Counsel
to file either an amended Anders/Santiago brief that shall include a thorough
discussion of Appellant’s intended claim or an advocate’s brief within thirty
days. The Commonwealth shall have thirty days thereafter to file a response.
Application to discontinue dismissed as moot. Petition to withdraw
denied with instructions. Panel jurisdiction retained.
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6 Appellant has not filed a response to Counsel’s petition to withdraw.
However, prior to Counsel serving his petition to withdraw on Appellant,
Appellant filed a letter arguing, inter alia, that his plea was not knowing. See
Pro Se Correspondence, 3/17/22.
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