Com. v. Jenkins, R. ( 2020 )

J. A17033/20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ROBERT JENKINS, : No. 151 EDA 2020
:
Appellant :
Appeal from the Judgment of Sentence Entered May 29, 2019,
in the Court of Common Pleas of Bucks County
Criminal Division at No. CP-09-CR-0005669-2018
BEFORE: BOWES, J., McCAFFERY, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 23, 2020
Robert Jenkins appeals from the May 29, 2019 judgment of sentence
entered by the Court of Common Pleas of Bucks County following his
conviction of robbery, criminal conspiracy to commit robbery, and possessing
instruments of crime.1 Patrick J. McMenamin, Jr., Esq., filed an application to
withdraw his appearance on April 22, 2020, alleging that the appeal is wholly
frivolous, accompanied by an Anders brief.2 After careful review, we deny
Attorney McMenamin’s application to withdraw and remand with instructions.
The trial court set forth the following procedural history:
On May 29, 2019, [appellant] entered a guilty plea to
robbery (threatening another with/intentionally
1 18 Pa.C.S.A. §§ 3701(a)(1)(ii), 903(a), and 907(a).
2See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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putting another in fear of serious bodily injury), a
felony of the first degree; criminal conspiracy to
commit robbery, a felony of the first degree; and
possessing instruments of crime, a misdemeanor of
the first degree. Pursuant to a plea agreement
between [appellant] and the Commonwealth,
[appellant] was sentenced to a term of incarceration
of six and a half to fifteen years. [Appellant] did not
file a timely post-sentence motion or a direct appeal.
On August 5, 2019, [the trial] court received a letter
form [appellant,] dated July 31, 2019, requesting
appointment of counsel to assist him in filing “a
reconsideration” and to “retract my guilty plea.” Since
the time for filing post-sentence motions and a direct
appeal had expired, [appellant’s] letter was treated as
a request for relief under the Post Conviction Relief
Act (“PCRA”).[3] On August 19, 2019, PCRA counsel
was appointed. On November 15, 2019, [the trial]
court entered an agreed order granting [appellant’s]
request for PCRA relief and reinstating [appellant’s]
right to file post-sentence motions and/or a direct
appeal from the judgment of sentence nunc pro
tunc.
On November 25, 2019, [appellant] filed a motion for
reconsideration of sentence nunc pro tunc. By order
dated[] November 27, 2019, [appellant’s] motion for
reconsideration of sentence was denied.
On December 27, 2019, [appellant] filed [a] notice of
appeal. On January 7, 2020, [appellant] was directed
to file a concise statement of matters complained of
on appeal [pursuant to Pa.R.A.P. 1925(b)]. On
January 13, 2020, [appellant] filed his [Rule 1925(b)
statement] challenging the discretionary aspects of
[his] sentence.
3 42 Pa.C.S.A. §§ 9541-9546.
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Trial court opinion, 2/26/20 at 1-2 (citations, citations to the record, footnote,
and extraneous capitalization omitted). The trial court filed an opinion
pursuant to Pa.R.A.P. 1925(a) on February 26, 2020.
Attorney McMenamin filed with this court an Anders brief and an
application to withdraw as counsel on April 22, 2020. On April 28, 2020, this
court entered an order noting that Attorney McMenamin failed to attach a copy
of his letter to appellant explaining appellant’s rights to his application to
withdraw. (Order of court, 4/28/20 (per curiam).) This court ordered
Attorney McMenamin to provide a copy of his letter to appellant advising
appellant of his rights. (Id., citing Commonwealth v. Millisock, 873 A.2d
748, 752 (Pa.Super. 2005).) On April 29, 2020, in response to this court’s
order, Attorney McMenamin filed with this court a copy of the letter he sent to
appellant, wherein Attorney McMenamin advised appellant that he has “the
right to represent [him]self or to hire private counsel to represent [him.]”
(Response of appellant’s counsel to the order & rule to show cause, 4/29/20,
Ex. A.)
A request by appointed counsel to withdraw pursuant
to Anders and Santiago gives rise to certain
requirements and obligations, for both appointed
counsel and this Court. Commonwealth v. Flowers,
113 A.3d 1246, 1247-1248 (Pa.Super. 2015).
These requirements and the significant
protection they provide to an Anders
appellant arise because a criminal
defendant has a constitutional right to a
direct appeal and to counsel on that
appeal. Commonwealth v. Woods, 939
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A.2d 896, 898 (Pa.Super. 2007). This
Court has summarized these
requirements as follows:
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.
Woods, 939 A.2d at 898 (citations
omitted).
Commonwealth v. Hankerson, 118 A.3d 415, 419 (Pa.Super. 2015).
Our review of Attorney McMenamin’s application to withdraw and
supporting documentation reveals that he has not complied with all of the
foregoing requirements. We note that counsel has furnished a copy of the
Anders brief to appellant, advised appellant of his right to retain new counsel
or proceed pro se, and has filed with this court a copy of the letter sent to
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appellant as required under Millisock. See Commonwealth v. Daniels, 999
A.2d 590, 594 (Pa.Super. 2010) (“While the Supreme Court in Santiago set
forth the new requirements for an Anders brief, which are quoted above, the
holding did not abrogate the notice requirements set forth in Millisock that
remain binding legal precedent.”). Attorney McMenamin’s letter, however,
failed to advise appellant that he may raise other issues before this court.
See Millisock, 873 A.2d at 751 (citation omitted).
We remand and direct Attorney McMenamin to send appellant a letter,
accompanied by the Anders brief, that complies with the directives of
Commonwealth v. Millisock. Attorney McMenamin shall comply with this
directive within 30 days of the date of the filing of this memorandum.
Appellant may respond within 45 days of receipt of Attorney McMenamin’s
Anders brief and accompanying letter.
Application to withdraw as counsel denied. Case remanded. Jurisdiction
retained.
Judgment Entered.
JosephD.Seletyn,Esq.
Prothonotary
Date: 6/23/2020
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