Com. v. Tuddles, B ( 2020 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
BRIAN TUDDLES, : No. 2635 EDA 2019
:
Appellant :
Appeal from the Judgment of Sentence Entered August 6, 2019,
in the Court of Common Pleas of Northampton County
Criminal Division at No. CP-48-CR-0003853-2018
BEFORE: LAZARUS, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 29, 2020
Brian Tuddles appeals from the August 6, 2018 judgment of sentence
entered in the Court of Common Pleas of Northampton County after he entered
a guilty plea to one count of aggravated assault.1 Appellant was sentenced to
a term of imprisonment of not less than 7 nor more than 14 years. Counsel
has filed what purports to be an Anders brief. We direct counsel to take
appropriate action in accordance with this memorandum.
The relevant factual and procedural history of this case, as gleaned from
the certified record, is as follows: On July 2, 2018, appellant twice punched
the victim, his girlfriend, with a closed fist, causing the victim to sustain
serious bodily injury. Appellant was charged with aggravated assault,
1 18 Pa.C.S.A. §§ 2702(a)(1).
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terroristic threats, simple assault, and harassment.2 On August 5, 2019,
appellant proceeded to a trial by jury. After the victim testified, appellant
opted to accept a negotiated plea agreement. On August 6, 2019, appellant
entered his plea and was sentenced by the trial court. No post-sentence
motions were filed.
On August 12, 2019, appellant filed a pro se motion to withdraw his
guilty plea. As appellant was represented by counsel, the trial court entered
an order referring appellant’s pro se motion to his counsel. See
Pa.R.A.P. 3304 (providing that where a litigant, represented by counsel, files
a pro se pleading, it shall be forwarded to counsel). Counsel for appellant
filed a timely petition to withdraw his guilty plea on August 15, 2019. The
petition was denied by the trial court. (Trial court order, 8/20/19.)
Appellant filed a timely notice of appeal. On September 6, 2019, the
trial court ordered appellant to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b). Counsel filed a timely “statement
in lieu of 1925(b) statement.” The trial court filed a statement pursuant to
Pa.R.A.P. 1925(a), stating that there were no allegations of error to address.
Appellant raises the following issue:
Whether the [trial c]ourt erred in issuing the appellant
a sentence which was unduly harsh under the
circumstances[?]
2 18 Pa.C.S.A. §§ 2702(a)(1), 2706(a)(1), 2701(a)(1), and 2709(a)(1),
respectively.
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Appellant’s brief at 8 (full capitalization omitted).
As a preliminary matter, counsel filed a “statement in lieu of 1925(b)
statement” wherein counsel contends that appellant’s issues are “totally
frivolous and without merit under the facts, Pennsylvania [r]ules, and any
relevant case law.” (Statement in lieu of Rule 1925(b) statement, 9/19/19 at
¶ 9.) Counsel, however, did not state whether he intended to file an
Anders/McClendon3 brief or whether he intended to withdraw as counsel.
(Id.)
In his brief, counsel states that he “has reviewed the asserted claims in
[a]ppellant’s pro se motion and finds them to be without merit.” (Appellant’s
brief at 11.) Counsel further states that he “can find no errors in the
application of sentence by the sentencing court” and that he “files this brief
without argument as to the merits to an appeal in the above-captioned
matter.” (Id.) Although counsel does not title his brief as such, based on
counsel’s assertions and those in his “statement in lieu of statement under
Pa.R.A.P. 1925,” it appears counsel intended to submit an Anders brief.
“When faced with a purported Anders brief, this Court may not review
the merits of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa.Super. 2005)
(citations omitted); Commonwealth v. Lilley, 978 A.2d 995, 997 (Pa.Super.
3 Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
McClendon 434 A.2d 1185 (Pa. 1981).
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2009). One of the Anders/Santiago requirements is submission of a petition
to withdraw. See Commonwealth v. Goodwin, 928 A.2d 287, 290
(Pa.Super. 2007) (en banc). To withdraw under Anders, court-appointed
counsel must first, “petition the court for leave to withdraw and state that
after making a conscientious examination of the record, he has determined
that the appeal is frivolous.” Commonwealth v. Martuscelli, 54 A.3d 940,
947 (Pa.Super. 2012), quoting Commonwealth v. Santiago, 978 A.2d 349,
361 (Pa. 2009).
Second, counsel must file an Anders brief, in which counsel:
(1) provide[s] a summary of the procedural history
and facts, with citations to the record; (2) refer[s] to
anything in the record that counsel believes arguably
supports the appeal; (3) set[s] forth counsel’s
conclusion that the appeal is frivolous; and
(4) state[s] 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.
With respect to the briefing requirements, “[n]either Anders nor
McClendon requires that counsel’s brief provide an argument of any sort, let
alone the type of argument that counsel develops in a merits brief. [W]hat
the brief must provide under Anders are references to anything in the record
that might arguably support the appeal.” Santiago, 978 A.2d at 359-360.
Pointing out the flaws in the issue(s) presented is not the proper form
of an Anders brief, as this approach operates to deny an appellant the
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assistance of counsel. Commonwealth v. Smith, 700 A.2d 1301, 1303
(Pa.Super. 1997).
Lastly, counsel must furnish a copy of the Anders brief to his client and
“advise him of his right to retain new counsel, proceed pro se or raise any
additional points that he deems worthy of the court’s attention, and attach[]
to the Anders petition a copy of the letter sent to the client.”
Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa.Super. 2010) (citation
omitted). “[If] counsel has satisfied the above requirements, it is then this
[c]ourt’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.” Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa.Super.
2007) (en banc) (quotation marks and citation omitted).
Here, appellant’s counsel has not filed a petition to withdraw. Further,
counsel’s brief is essentially an argument in support of the trial court’s
sentencing of appellant. (See appellant’s brief at 8-11.) While counsel need
not raise issues if he believes there are none, he must set forth those issues
that the defendant wishes to advance, as well as any other claims necessary
to the effective appellate presentation of those issues. Commonwealth v.
Smith, 700 A.2d 1301, 1303 (Pa.Super. 1997). It is sufficient if counsel
“flags” those issues and includes relevant case citations and references to the
record. Smith, 700 A.2d at 1304. Counsel’s brief does not comport with
these requirements.
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Additionally, nothing in the record demonstrates that counsel furnished
a copy of his Anders brief to appellant or advised appellant of his right to
retain new counsel, proceed pro se, or raise any additional points that he
deems worthy of the court’s attention. Counsel has not attached any letter to
his Anders petition reflecting notice to the appellant. Thus, counsel has failed
to comply with any of the requirements of Anders. See Commonwealth v.
Millisock, 873 A.2d 748, 751-752 (Pa.Super. 2005).
We, therefore, find that counsel’s brief denies appellant his very basic
and important right to assistance of competent counsel. Consequently, we
will not dispose of appellant’s issue(s) on the merits, and we direct counsel to
file either an advocate’s brief or an Anders brief with a petition to withdraw
as counsel within 30 days.
To the extent that counsel seeks to withdraw, we deny that request.
Counsel is directed to file an advocate’s brief or an Anders-compliant brief
and petition to withdraw as counsel within 30 days. Jurisdiction retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/29/2020
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