Com. v. Feitl, D. ( 2023 )

J-A22014-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DESIRAE FEITL :
:
Appellant : No. 215 WDA 2023
Appeal from the Judgment of Sentence Entered December 1, 2022
In the Court of Common Pleas of Butler County Criminal Division at
No(s): CP-10-CR-0000749-2021
BEFORE: BOWES, J., OLSON, J., and KING, J.
MEMORANDUM BY BOWES, J.: FILED: November 6, 2023
Desirae Feitl appeals from the judgment of sentence of six and one-half
to sixteen years of incarceration imposed after she pled guilty to one count of
delivery of a controlled substance. In this Court, Benjamin B. Levine, Esquire,
has filed an application to withdraw as Appellant’s counsel and brief pursuant
to Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we deny counsel’s
application to withdraw and order new briefing.
Appellant was a member of a large-scale drug distribution ring. At the
time of her arrest, she possessed heroin and fentanyl. Following a grand jury
investigation, Appellant was indicted and charged with numerous offenses
related to the drug distribution ring. Thereafter, Appellant pled guilty to one
count of delivery of a controlled substance and was sentenced to the term
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indicated above. Appellant subsequently filed a pro se notice of appeal. Plea
counsel withdrew, and the court appointed Attorney Levine, who, pursuant to
Pa.R.A.P. 1925(c)(4), filed in the trial court a statement noting his intention
to withdraw from representation. Based thereon, the trial court transmitted
the record to this Court in lieu of filing a Rule 1925(a) opinion.
Counsel filed in this Court both an Anders brief and a petition seeking
leave to withdraw as counsel. The following legal principles guide our review:
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.
If counsel does not fulfill the aforesaid technical
requirements of Anders, this Court will deny the petition to
withdraw and remand the case with appropriate instructions (e.g.,
directing counsel either to comply with Anders or file an
advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
petition and brief satisfy Anders, we will then undertake our own
review of the appeal to determine if it is wholly frivolous. If the
appeal is frivolous, we will grant the withdrawal petition and affirm
the judgment of sentence. However, if there are non-frivolous
issues, we will deny the petition and remand for the filing of an
advocate’s brief.
Commonwealth v. Cook, 175 A.3d 345, 348 (Pa.Super. 2017) (cleaned up).
Our Supreme Court has further detailed counsel’s duties as follows:
[I]n the Anders brief that accompanies court-appointed counsel’s
petition to withdraw, counsel must: (1) provide a summary of the
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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, supra at 361.
Based upon our examination of counsel’s application to withdraw and
Anders brief, we conclude that counsel has not substantially complied with
the requirements set forth above. While counsel provided a summary of the
procedural history and facts, his Anders brief is devoid of specific citations to
the record that would indicate a diligent examination of the guilty plea and
sentencing proceedings. See Anders brief at 2-3. Therefore, he did not fulfill
the requirements of Santiago.
Moreover, counsel failed to ensure that the certified record was
complete, as the notes of testimony from the October 5, 2022 guilty plea
hearing and the December 1, 2022 sentencing hearing are not included.
Indeed, the criminal docket reveals that the pertinent transcripts were not
requested until May 19, 2023, which is one week after counsel filed the
Anders brief with this Court. “Without these notes of testimony, counsel
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) (unnecessary capitalization omitted). Under these
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circumstances, “[w]e therefore cannot conclude that counsel has fulfilled his
obligations.” Id. at 1251 (unnecessary capitalization omitted).
Thus, we deny Attorney Levine’s application to withdraw and instruct
counsel to, within sixty days, (1) obtain the missing notes of testimony and
secure their inclusion in a supplemental certified record; and (2) following
review of the complete record, file an advocate’s brief or a new Anders brief
and application to withdraw. The Commonwealth shall have thirty days
thereafter to file a response.
Application of Benjamin B. Levine, Esquire, to withdraw as counsel is
denied. New briefs are ordered. Panel jurisdiction is retained.
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