Com. v. Jewell, M.

J-S38038-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MEGAN V. JEWELL, :
:
Appellant : No. 109 WDA 2018
Appeal from the Judgment of Sentence January 5, 2018
in the Court of Common Pleas of Venango County Criminal Division
at No(s): CP-61-CR-0000312-2014
CP-61-CR-0000353-2017
CP-61-CR-0000366-2017
CP-61-CR-0000387-2017
BEFORE: BOWES, J., NICHOLS, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 21, 2019
Megan V. Jewell (Appellant) appeals from the January 5, 2018
judgment of sentence of an aggregate term of 32 to 64 months’
incarceration following the revocation of her probation and after pleading
guilty to two counts each of retail theft and aggravated assault.
Due to our disposition herein, we need not provide a detailed factual
summary. We do, however, set forth the relevant procedural history of this
matter. On January 5, 2018, Appellant was sentenced to the
aforementioned term of incarceration. Appellant did not file a post-sentence
motion, but on January 16, 2018, Appellant timely filed a notice of appeal.
That same day, the trial court entered an order directing Appellant to file a
*Retired Senior Judge assigned to the Superior Court.
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concise statement of matters complained of on appeal pursuant to Pa.R.A.P.
1925(b)(1). No statement was filed. On March 20, 2018, the trial court
filed an opinion stating that Appellant’s failure to file a concise statement
constituted waiver of all issues on appeal. Opinion of Court, 3/20/2018, at
1-2.
In this Court, counsel for Appellant, Matthew C. Parsons, Esquire, filed
both an Anders1 brief and a petition to withdraw as counsel. Upon review,
this Court, in a memorandum filed August 27, 2018, determined that
Attorney Parsons did not comply with the requirements of Anders.2
Specifically, our review of the certified record revealed the absence of a
written guilty plea colloquy, as well as the transcripts of Appellant’s guilty
plea and Gagnon II hearing. Additionally, Attorney Parsons failed to cite to
1
Anders v. California, 386 U.S. 738 (1967).
2In Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), our Supreme
Court has expounded upon the requirements of Anders.
[I]n 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.
Santiago, 978 A.2d at 361.
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any pertinent transcript within his brief. Due to these deficiencies, we
denied Attorney Parsons’s petition to withdraw and remanded this case. We
instructed Attorney Parsons to complete the record and then “file either an
advocate’s brief or a new petition to withdraw and Anders brief that fully
comply with the requirements detailed above.” Commonwealth v. Jewell,
195 A.3d 1033, *3 (Pa. Super. 2018) (unpublished memorandum).
Several months later, this case returned to this Court following
remand. A review of the record reflected that, per our request, the certified
record had been supplemented. However, we ultimately determined that
Attorney Parsons failed to comply with this Court’s directives. Specifically,
Attorney Parsons filed the same Anders brief previously filed with this
Court, which we had already determined to be inadequate. Thus, we
remanded this case once again and directed Attorney Parsons to file either
an advocate’s brief or a compliant Anders brief, and to comply with all of
this Court’s directives. Commonwealth v. Jewell, ___A.2d___, 2019 WL
1307452, *2 (Pa. Super. 2019) (unpublished memorandum).
Instead of filing either an advocate’s brief or compliant Anders brief,
on April 8, 2019, Attorney Parsons filed a petition to withdraw as counsel,
averring he was no longer employed “with the Venango County Public
Defender’s Office” and that “someone else ha[d] been assigned to this case.”
Petition to Withdraw, 4/8/2019. On May 1, 2019, this Court denied Attorney
Parsons’s request without prejudice, advising Attorney Parsons that he may
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refile his petition to withdraw once substitute counsel entered an
appearance. Order, 5/1/2019. Soon thereafter, Tina M. Fryling, Esquire,
entered her appearance in this case on behalf of Appellant.3
On May 15, 2019, Attorney Fryling filed a brief which included, inter
alia, an argument section setting forth the merits of Appellant’s claim, an
argument section “pursuant to Santiago[,]” explaining why Appellant’s
issue was without merit, and a paragraph titled “conclusion[,]” which stated
that “[t]here are no non-frivolous issues for review in this case.” Appellant’s
Brief at 5. Thus, it appears Attorney Fryling is attempting to assert that
Appellant’s appeal is wholly frivolous. Notably, however, Attorney Fryling
neither filed a corresponding petition to withdraw nor followed the
procedures pursuant to Anders and Santiago.4
3
Attorney Parsons has yet to refile a petition to withdraw. In light of
Attorney Fryling’s entry of appearance, Attorney Parsons should now file a
petition to withdraw as counsel for Appellant.
4 Counsel seeking to withdraw under Anders and its progeny
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.
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In light of the foregoing, we direct Attorney Fryling to file either an
advocate’s brief or a compliant Anders brief5 and petition to withdraw, along
with an accompanying letter advising Appellant of her right to retain new
counsel, proceed pro se, or raise any additional points Appellant deems
worthy of this Court’s attention. Counsel is directed to comply with every
aspect of this memorandum within 30 days of the date this memorandum is
filed.6 Appellant and the Commonwealth shall have 30 days from the date
that counsel files her brief in order to file a responsive brief.
Jurisdiction retained.
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).
Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)
(citations omitted).
5 To be clear, counsel’s new Anders brief must follow all of the
requirements described in footnote two, supra.
6
Lastly, we note with extreme displeasure the excessive delay in this case
and the manner in which this case has been handled by prior and current
court-appointed counsel. It has been 18 months since Appellant filed a
notice of appeal in this straight-forward probation revocation case, but due
to the errors of counsel, this Court has not been afforded the opportunity to
review this appeal on its merits. Such a delay is unacceptable. We direct
current counsel to review carefully the instructions and case law set forth
supra and comply with the aforementioned requirements, so as to allow this
Court to dispose of this case promptly upon the receipt of new filings from
counsel.
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Judge Nichols joins this memorandum.
Judge Bowes joins and files a concurring statement for this
memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/21/19
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