Com. v. Betancourth, C. ( 2023 )

J-S07022-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTOPHER BETANCOURTH :
:
Appellant : No. 1997 EDA 2022
Appeal from the Judgment of Sentence Entered September 13, 2017,
in the Court of Common Pleas of Lehigh County,
Criminal Division at No(s): CP-39-CR-0004143-2016,
CP-39-CR-0004144-2016, CP-39-CR-0004145-2016,
CP-39-CR-0004272-2016.
BEFORE: DUBOW, J., KUNSELMAN, J., and KING, J.
MEMORANDUM BY KUNSELMAN, J.: FILED MAY 19, 2023
Christopher Betancourth appeals from the judgment of sentence
imposed after he pled guilty to several offenses. Additionally, Betancourth’s
counsel asked to withdraw representation and filed a brief pursuant to Anders
v. California, 386 U.S. 738 (1967). Upon review, we deny counsel’s petition
with instructions.
On July 26, 2017, Betancourth plead guilty in four separate cases to
person not to possess a firearm, robbery (two cases), and receiving stolen
property. The trial court sentenced Betancourth to an aggregate term of 6 1/2
to 14 years’ incarceration. Betancourth did not file a post-sentence motion or
an appeal.
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On July 12, 2018, Betancourth filed a Post Conviction Relief Act1 petition.
The court appointed counsel, who filed a motion to withdraw as counsel
pursuant to a Turner/Finley letter, which was granted. Thereafter, the PCRA
court held a hearing on the merits and denied the PCRA petition on November
21, 2018.
On December 7, 2018, Betancourth filed a post-sentence motion. In
part, he asked to withdraw his guilty plea. On December 11, 2018, the trial
court denied this motion. That same day, Betancourth appealed the court’s
order denying him relief under the PCRA.
On appeal, this Court reversed and remanded because the court held an
evidentiary hearing on the merits, and Betancourth was entitled to have
counsel represent him at the PCRA hearing or be colloquized on the record to
waive his right to counsel and proceed pro se.
Upon remand, counsel was appointed, an amended petition was filed,
and a second evidentiary hearing was held. The court granted PCRA relief and
reinstated Betancourth’s direct appeal rights.
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1 42 Pa.C.S.A. §§ 9541-9546.
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Betancourth filed this timely appeal.2 Counsel filed an Anders brief with
this Court but did not file a separate petition to withdraw. Betancourth did
not retain independent counsel or file a pro se response to the Anders brief.
When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
withdraw. See Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super.
2010). Pursuant to Anders, when counsel believes an appeal is frivolous and
wishes to withdraw from representation, counsel must do the following:
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record, counsel has
determined the appeal would be frivolous; (2) file a brief referring
to any issues that might arguably support the appeal, but which
does not resemble a no-merit letter; and (3) furnish a copy of the
brief to the defendant and advise him of his right to retain new
____________________________________________
2 The notice of appeal lists all four trial court docket numbers, in contravention
of Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018) (holding that an
appellant is required to file separate notices of appeal when a single order
resolves issues arising on more than one trial court docket). However, the
PCRA court’s July 1, 2022, order advised that “[Betancourth] is granted leave
to file an appeal to the Superior Court of Pennsylvania within thirty (30) days
of the date of this Order.” (emphasis added). In Commonwealth v.
Stansbury, 219 A.3d 157 (Pa. Super. 2019), this Court declined to quash an
appeal where the trial court’s order dismissed two PCRA petitions, and the trial
court, in advising appellant of his rights, referred to a singular notice of appeal.
Moreover, in Commonwealth v. Larkin, 235 A.3d 350, 354 (Pa. Super.
2020) (en banc), this Court held that “we may overlook the requirements of
Walker where [. . .] a breakdown occurs in the court system, and a defendant
is misinformed or misled regarding his appellate rights.” Larkin, 235 A.3d at
354. We therefore decline to quash Betancourth’s appeal for this procedural
defect.
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counsel, proceed pro se, or raise any additional points [the
defendant] deems worthy of this Court's attention.
Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006)
(citation omitted). In Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009), our Supreme Court addressed the second requirement of Anders, i.e.,
the contents of an Anders brief, and required that the brief:
(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 Anders
requirements, it is then this Court’s responsibility “to conduct a simple review
of the record to ascertain if there appear on its face to be arguably meritorious
issues that counsel, intentionally or not, missed or misstated.”
Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018).
Instantly, although counsel filed an Anders brief, he did not file a
separate petition to withdraw representation with this Court. Instead, counsel
included his petition to withdraw as a document within his brief. Nevertheless,
we may treat this as a request to withdraw. See Commonwealth v.
Fischetti, 669 A.2d 399 (Pa. Super. 1995). (explaining “the more desirable
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practice would be to submit a separate withdrawal request to the court”).
Therein, counsel indicated that he “determined that there are no meritorious
appellate issues.”3 Further, the Anders brief substantially comports with the
requirements set forth by our Supreme Court in Santiago.
Finally, although counsel included a copy of the letter that he sent to
Betancourth stating counsel’s intention to seek permission to withdraw and
advising Betancourth of his right to proceed pro se or retain new counsel, the
letter does not inform Betancourth that he may raise additional points.
Additionally, the certificate of service attached to the Anders brief does not
indicate that it was sent to Betancourth but instead lists another individual’s
name. And, although the Anders brief indicates that it was sent to
Betancourth and that it was to be enclosed with the letter, the letter does not
indicate that there were any enclosures. Thus, we cannot be sure that
Betancourth was actually provided with a copy of the brief and petition to
withdraw as required.
Accordingly, as counsel has not complied with the procedural
requirements for withdrawing from representation, we are compelled to deny
counsel’s request to withdraw and remand this matter with instructions to
____________________________________________
3 We remind counsel to state in his petition that, “after a conscientious
examination of the record, counsel finds the appeal to be wholly
frivolous.” Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super.
2007) (emphasis added).
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ensure Betancourth’s constitutional rights are afforded to him. Counsel shall
either comply with Anders or file an advocate’s brief on Betancourth’s behalf
within 30 days of this decision.
Petition to withdraw denied. Jurisdiction retained.
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