Com. v. Bailey, K.

J-S27035-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEVIN R. BAILEY :
:
Appellant : No. 1628 WDA 2018
Appeal from the Judgment of Sentence Entered October 26, 2018
In the Court of Common Pleas of Crawford County Criminal Division at
No(s): CP-20-CR-0000485-2018
BEFORE: OLSON, J., OTT, J., and COLINS*, J.
MEMORANDUM BY COLINS, J.: FILED JULY 15, 2019
Appellant, Kevin R. Bailey, appeals from the judgment of sentence
imposed after entering a guilty plea. Appellate counsel has filed a petition to
withdraw and an Anders1 brief, stating that the appeal is wholly frivolous.
After careful review, we deny counsel’s petition to withdraw and direct counsel
to obtain the missing notes of testimony from Appellant’s September 6, 2018
guilty plea hearing and to file an advocate’s brief or another Anders brief and
petition seeking to withdraw following his review of the complete record. The
Commonwealth may file a brief within 30 days after service of the brief from
Appellant’s counsel.2
____________________________________________
1 Anders v. California, 386 U.S. 738 (1967).
2 If the Commonwealth does not intend to file a brief in response, we request
that the Commonwealth send a letter to this Court’s Prothonotary informing
this Court of that decision as soon as possible.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S27035-19
The facts underlying this appeal are as follows. On multiple occasions
between January 1, 2017 and March 14, 2018, Appellant touched the vagina
of his biological daughter, J.L.B., with his fingers and tongue. J.L.B. would
have been six years old when the abuse started. On September 6, 2018
Appellant entered into a guilty plea to three counts of rape of a child, one
count of involuntary deviate sexual intercourse with a child and two counts of
aggravated indecent assault.3 On October 26, 2018, Appellant received an
aggregate sentence of 480 to 960 months’ incarceration. Appellant filed a
timely post-sentence motion challenging the discretionary aspects of his
sentence. The trial judge denied Appellant’s motion. On November 9, 2018,
Appellant filed this timely direct appeal.4
On March 20, 2019, appellate counsel filed an Anders Brief, in which
he presented the following issue:
Whether Appellant has any non-frivolous issues to raise on
appeal?
Anders Brief at 5. On March 12, 2019, appellate counsel sent a letter to
Appellant, informing him that he intended to file an Anders brief and petition
____________________________________________
3 18 Pa.C.S. §§ 3121(c), 3123 (b), 3125 (a)(7), respectively.
4Appellant timely filed his statement of errors complained of on appeal on
November 30, 2018. The trial court entered its opinion on December 13,
2018.
-2-
J-S27035-19
to withdraw.5 On April 11, 2019, the Commonwealth sent a letter to this Court
stating that it did not intend to file a responsive 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.” Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa. Super.
2010) (internal citation omitted). An Anders brief shall comply with the
requirements set forth by the Supreme Court of Pennsylvania in
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009):
[W]e hold that in the Anders brief that accompanies court-
appointed counsel’s petition to withdraw, counsel must: (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.
Counsel seeking to withdraw on direct appeal must meet the following
obligations to his or her client:
____________________________________________
5 In his letter to Appellant, counsel incorrectly stated “[y]ou do have the right
to proceed pro se (representing yourself) or you may hire counsel of your own
choosing should the Court decide to grant my Motion to Withdraw in
your case.” (emphasis added). Our Court filed an Order on June 19, 2019,
directing counsel to send a corrected letter to Appellant, informing him that
he has the immediate right to proceed pro se or hire counsel to bring any
additional points to this Court’s attention. See Commonwealth v. Muzzy,
141 A.3d 509 (Pa. Super. 2016). On June 24, 2019, counsel complied with
the Order. In the Order, this Court gave Appellant until July 22, 2019 to file
a response to counsel’s Anders brief. In light of the disposition, we vacate
that July 22, 2019 due date.
-3-
J-S27035-19
Counsel must also provide a copy of the Anders brief to his
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
the Anders brief.
Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (internal
quotation marks, citation, and brackets omitted). If counsel has satisfied the
above requirements, it is then this Court’s duty to conduct its own review of
the trial court’s proceedings and render an independent judgment as to
whether the appeal is wholly frivolous. Commonwealth v. Yorgey, 188 A.3d
1190, 1196 (Pa. Super. 2018) (en banc); Commonwealth v. Dempster, 187
A.3d 266, 271 (Pa. Super. 2018) (en banc).
In this appeal, we observe that appellate counsel’s March 12, 2019
correspondence to Appellant provided a copy of the Anders Brief to Appellant.
The revised letter to Appellant, dated June 19, 2019, advised Appellant of his
right to proceed pro se or to retain new counsel to raise any points he deems
worthy of the Court’s attention. Further, appellate counsel’s Anders Brief, at
6-7, complies with prevailing law in that counsel has provided a procedural
and factual summary of the case with references to the record. Appellant’s
counsel believes there is nothing in the record that arguably supports the
appeal. Anders brief at 16, 19. Ultimately, appellate counsel cites his
reasons and conclusion that Appellant’s “case presents no non-frivolous issues
for review.” Id. Counsel’s Anders brief and procedures therefore comply
with the technical requirements of Santiago and Orellana. We therefore
-4-
J-S27035-19
proceed to conduct an independent review to ascertain whether the appeal is
indeed wholly frivolous.
[P]art and parcel of Anders is our Court’s duty to review the
record to insure no issues of arguable merit have been missed or
misstated. . . . This view comports with the main purpose of
Anders, which is to make sure that an appellant is provided with
adequate counsel as required by the Sixth Amendment of the U.S.
Constitution. Ultimately, our Court’s overriding task is to ensure
that a criminal defendant’s loss of liberty is reviewed with the
gravity to which it is entitled. . . .
In light of the constitutional rights at issue, we must give Anders
a most generous reading and review “the case” as presented in
the entire record with consideration first of issues raised by
counsel. . . . [T]his review does not require this Court to act as
counsel or otherwise advocate on behalf of a party. Rather, it
requires us only to conduct a review of the record to ascertain if
on its face, there are non-frivolous issues that counsel,
intentionally or not, missed or misstated. We need not analyze
those issues of arguable merit; just identify them, deny the
motion to withdraw, and order counsel to analyze them.
Yorgey, 118 A.3d at 1196 (citations and quotations omitted).
In reviewing the entire record to ensure that there are no other non-
frivolous issues present, we have determined that the notes of testimony from
Appellant’s guilty plea proceedings are not part of the record.6 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
____________________________________________
6 There is no motion requesting transcripts for the guilty plea hearing in the
certified record. This Court confirmed with Crawford County that no
transcripts for the guilty plea were requested and, therefore, none were
prepared.
-5-
J-S27035-19
A.3d 1246, 1249 (Pa. Super. 2015) (motion to withdraw denied where counsel
who filed Anders brief did not make guilty plea transcripts a part of the
certified record, counsel could not have fulfilled his duty to review the entire
record for any non-frivolous issues.); Commonwealth v. Vilsaint, 893 A.2d
753, 758 (Pa. Super. 2006) (motion to withdraw denied “[g]iven that this
represents a direct appeal, and that counsel has filed an Anders brief, it would
be prudent, if not mandatory, for counsel to have ordered all the notes of
testimony. . . . [C]ounsel cannot fulfill the mandates of Anders unless he has
reviewed the entire record.”).
Counsel could not have assessed whether any non-frivolous issues exist
in connection with Appellant’s guilty plea proceeding without these notes of
testimony. We, therefore, conclude that counsel has not fulfilled his
obligations pursuant to Anders. Thus, we deny counsel’s petition to withdraw
and direct counsel to obtain the missing notes of testimony and to file an
advocate’s brief or another Anders brief and petition seeking to withdraw
following his review of a complete record within 30 days of the date of this
memorandum.7
Petition to withdraw denied. Anders brief stricken. Panel jurisdiction
retained.
____________________________________________
7Appellant, if he chooses, may file a response if counsel submits a new
Anders brief.
-6-