Com. v. Garcia, J.

J-S29011-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
JOSE GARCIA,
Appellant No. 2932 EDA 2018
Appeal from the Judgment of Sentence Entered September 11, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001603-2017
BEFORE: BENDER, P.J.E., LAZARUS, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 05, 2019
Appellant, Jose Garcia, appeals from the judgment of sentence of two
years’ probation, imposed after he entered a negotiated guilty plea for
possession of a controlled substance, 35 P.S. § 780-113(a)(16). On appeal,
Appellant challenges whether he knowingly, intelligently, and voluntarily
entered his guilty plea. In addition, Appellant’s counsel, Jessica C. Mann, Esq.,
seeks to withdraw her representation of Appellant pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009). We deny Attorney Mann’s petition to withdraw and
remand for counsel to file either a compliant Anders brief or an advocate’s
brief.
In its Pa.R.A.P. 1925(a) opinion, the trial court summarized the relevant
facts as follows:
J-S29011-19
On September 11, 2018, [Appellant] entered into a negotiated
guilty plea for two (2) years of reporting probation on the charge
of … possession of a controlled substance.[1,2] The [c]ourt
specifically advised [Appellant] that before he would be allowed to
enter the proffered negotiated guilty plea,2 the record needed to
be clear that [Appellant] understood what he was doing and
understood the rights he was giving up to proceed by way of a
negotiated guilty plea. Thereafter, [the Commonwealth]
specifically colloquyed [sic] [Appellant] regarding his competency,
the rights he would be giving up, as well as the consequential
effects of his plea, and in pertinent parts[,] the following
transpired:
[The Commonwealth]: You also understand if you’re on
probation or parole, this could violate that?
[Attorney Humble]: My client’s on parole right now, that’s
why we’re taking the misdemeanor negotiated offer. He’s
been advised of that.
[Appellant]: Yeah, my parole is maxed out.
[The Commonwealth]: Do you understand that if you are
under supervision … you understand [that] this could violate
that?
[Appellant]: Yes.
[The court]: So you’ve had that conversation with your
attorney? You do understand this could be a violation?
____________________________________________
1 To support the plea, the Commonwealth related that, on November 17, 2016,
Philadelphia police officers “received information from a confidential informant
in reference to … illegal sales [of] narcotics from … inside the residence of
2642 East Mayfield Street in Philadelphia County. The person associated with
these sales was a Hispanic male named Jose, approximately 30 years old.”
N.T., 9/11/2018, at 16. After further investigations, police “served a search
warrant on [the] 2642 East Mayfield Street [residence] associated with
[Appellant], and within this residence found … .535 grams of marijuana, 13
alprazolam pills, .092 grams of cocaine, .112 grams of oxycodone, and … four
more additional pills of alprazolam.” Id. at 16-17.
2 Attorney Mann did not represent Appellant at the guilty plea colloquy. At
that time, Appellant was represented by Brian Humble, Esq.
-2-
J-S29011-19
[Appellant]: Yes[, m]a’am.
[N.T. at 14].
2 It should also be noted that as part of the negotiations[,]
the Commonwealth dismissed the related felony charge of
possession with intent to distribute and only proceeded on
the aforementioned misdemeanor charge.
Finally, at the conclusion of the imposition of the negotiated
sentence, [Appellant] was advised that he had … ten (10) days to
withdraw his guilty plea or request reconsideration from the trial
court, and thirty (30) days to file an appeal to the Superior Court
on the limited grounds described in the colloquy. [Appellant] did
not request to withdraw his plea nor did he request
reconsideration. However, on October 5, 2018, [Appellant, pro
se,] filed the instant appeal.
Trial Court Opinion (TCO), 2/1/2019, at 1-2 (unnumbered pages; footnote and
most internal citations to record omitted).
On October 11, 2018, the trial court appointed Attorney Mann to
represent Appellant. Thereafter, on October 15, 2018, the court ordered
Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b), no later than 21 days from the date of its
order, i.e., November 5, 2018. On November 5, 2018, Appellant filed a
petition for an extension of time to file his Rule 1925(b) statement, explaining
that the newly-appointed Attorney Mann was still in the process of “putting
together” Appellant’s file, including the relevant notes of testimony that had
not yet been transcribed. See Petition for Extension of Time, 11/5/2018, at
1 (unnumbered pages). Subsequently, on December 5, 2018, Appellant filed
-3-
J-S29011-19
his Rule 1925(b) statement, raising one issue. The trial court issued its Rule
1925(a) opinion addressing Appellant’s alleged error on February 1, 2019.3
On March 19, 2019, Attorney Mann filed a petition to withdraw as
counsel and an Anders brief, in which she presented the following issue:
Whether [Appellant’s] guilty plea was knowing, voluntary, and
intelligent where[,] although he had maxed out his parole at the
time of the plea, … his plea counsel did not advise him that
because the date of the crime occurred while he was still on
parole, the subsequent conviction would trigger a violation of that
parole?
Anders Brief at 2.
Attorney Mann concludes that this appeal is wholly frivolous.
Accordingly,
this Court must first pass upon counsel’s petition to withdraw
before reviewing the merits of the underlying issues presented by
[the appellant]. Commonwealth v. Goodwin, 928 A.2d 287,
290 (Pa. Super. 2007) (en banc).
Prior to withdrawing as counsel on a direct appeal under Anders,
counsel must file a brief that meets the requirements established
by our Supreme Court in Santiago. The brief must:
(1) provide a summary of the procedural history and facts,
with citations to the record;
____________________________________________
3 Our review of the record does not indicate that the trial court actually granted
Appellant’s request for an extension of time to file his Rule 1925(b) statement,
which renders his Rule 1925(b) statement, filed on December 5, 2018,
untimely. Notwithstanding the late filing of his Rule 1925(b) statement, we
will address the merits of his claim. See Commonwealth v. Burton, 973
A.2d 428, 433 (Pa. Super. 2009) (“[I]f there has been an untimely filing [of
the Rule 1925(b) statement], this Court may decide the appeal on the merits
if the trial court had adequate opportunity to prepare an opinion addressing
the issues being raised on appeal.”).
-4-
J-S29011-19
(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. Counsel also must provide a copy of
the Anders brief to [her] client. Attending the brief must be a
letter that advises the client of his right to: “(1) retain new counsel
to pursue the appeal; (2) proceed pro se on appeal; or (3) raise
any points that the appellant deems worthy of the court[’]s
attention in addition to the points raised by counsel in the Anders
brief.” Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa.
Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).
Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014). After
determining that counsel has satisfied these technical requirements of Anders
and Santiago, this Court must then “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) (en banc).
Attorney Mann has failed to comply with these requirements. Namely,
she has failed to attach to her petition to withdraw a copy of her letter to
Appellant informing him of his rights pursuant to Nischan, supra. See
Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005) (“[T]he
prudent course is to require counsel henceforth to attach to their petition to
withdraw a copy of the letter sent to their client advising him or her of their
-5-
J-S29011-19
rights.”). As a result, we cannot discern if Attorney Mann properly advised
Appellant of his rights in accordance with Nischan.
In addition, with respect to her Anders brief, Attorney Mann does not
specifically point us to anything in the record that she believes would arguably
support Appellant’s appeal, despite representing that she has identified for us
testimony that would provide such support. See Anders Brief at 4-5
(asserting that she has “identified for the Court those issues that counsel has
identified as arguably supporting the appeal and the testimony that would
arguably support them,” and “identified for the Court those issues that
[A]ppellant would have raised on appeal and the testimony that would
arguably support them…”). More troublingly, Attorney Mann also does not
state her reasons for concluding that the appeal is frivolous in light of the
relevant facts of record. She merely asserts that the record supports that
Appellant’s guilty plea was knowing, intelligent, and voluntary without any
discussion of what occurred at the plea colloquy. See Anders Brief at 6.
Finally, it is unclear whether Attorney Mann provided Appellant with a copy of
her Anders brief, as he is not included in its certificate of service.4
In light of the foregoing deficiencies, we deny Attorney Mann’s petition
to withdraw. Within 30 days of the filing date of this memorandum, Attorney
Mann shall file an advocate’s brief or a proper Anders brief and petition to
____________________________________________
4 We note that Appellant has not filed any response to Attorney Mann’s petition
to withdraw or Anders brief.
-6-
J-S29011-19
withdraw. Appellant and the Commonwealth may respond within 30 days of
Attorney Mann’s filing of her brief.
Petition to withdraw denied. Case remanded with instructions.
Jurisdiction retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/5/19
-7-