Com. v. Dolph, W.

J-S30041-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM ROBERT DOLPH :
:
Appellant : No. 551 EDA 2022
Appeal from the Judgment of Sentence Entered January 6, 2022
In the Court of Common Pleas of Wayne County Criminal Division at
No(s): CP-64-CR-0000041-2021
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM ROBERT DOLPH :
:
Appellant : No. 552 EDA 2022
Appeal from the Judgment of Sentence Entered January 6, 2022
In the Court of Common Pleas of Wayne County Criminal Division at
No(s): CP-64-CR-0000158-2021
BEFORE: STABILE, J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED SEPTEMBER 08, 2022
William Robert Dolph (Dolph) appeals from the January 6, 2022
judgment of sentence imposed by the Court of Common Pleas of Wayne
County (trial court) following his guilty pleas to driving under suspension, two
counts of possession of a controlled substance and possession of drug
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S30041-22
paraphernalia.1 Dolph’s counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009), and a petition for leave to withdraw. We deny counsel’s
petition to withdraw at this time and remand for the filing of an advocate’s
brief or new Anders brief.
Briefly, Dolph entered negotiated guilty pleas in the above-captioned
cases on June 24, 2021. The pleas were open as to sentencing. Prior to the
sentencing hearing, however, he filed a motion to withdraw his pleas. The
trial court denied the motion after a hearing and sentenced him to an
aggregate of 36 to 72 months’ incarceration on the two cases. Dolph filed a
post-sentence motion challenging the discretionary aspects of the sentence
and again seeking to withdraw his pleas. The trial court denied the motion
and he timely appealed. Counsel then filed a statement of intent to file an
Anders brief pursuant to Pa. R.A.P. 1925(c)(4) and the trial court transmitted
the record without filing a responsive opinion.
On appeal, counsel has filed an Anders brief and petition for leave to
withdraw. When seeking to withdraw under Anders, counsel must, among
other things, file a petition to withdraw and a brief certifying that after making
____________________________________________
1 75 Pa.C.S. § 1543(b)(1)(i); 35 P.S. §§ 780-113(a)(16), (32). Specifically,
at Case 41-2021, Dolph pled guilty to driving under suspension, possession of
a controlled substance and possession of drug paraphernalia. At Case 158-
2021, Dolph pled guilty to possession of a controlled substance.
-2-
J-S30041-22
a conscientious examination of the entire record, he has determined that the
appeal would be wholly frivolous. See Commonwealth v. Cartrette, 83
A.3d 1030, 1032 (Pa. Super. 2013). Here, counsel’s brief and petition aver
that he reviewed the entire record and concluded that the instant appeal is
frivolous. He identifies and analyzes two potential issues for appeal: the
denial of Dolph’s motions to withdraw his pleas and the denial of his motion
to reconsider his sentence.
However, our review of the certified record reveals that only the
transcript from the January 6, 2022 sentencing hearing, which included the
hearing on Dolph’s pre-sentence motion to withdraw his guilty plea, was
produced. Counsel filed a request for transcripts with the notices of appeal
requesting that the court reporter “produce, certify and file the record” in the
cases. See Request for Record, 2/9/2022.2 Nevertheless, the record does
not contain the transcript of Dolph’s June 24, 2021 guilty plea hearing. This
transcript is necessary to a comprehensive review of the record, particularly
because Dolph raised claims related to the withdrawal of his guilty plea that
would require examination of those proceedings.
Omission of a guilty plea transcript from the record prevents counsel
from conducting the comprehensive review of the record required by Anders:
Without these notes of testimony, Counsel could not have fulfilled
his duty to review the entire record for any non-frivolous issues.
. . . More specifically, without these notes of testimony, counsel
____________________________________________
2 Counsel filed the same request at each docket.
-3-
J-S30041-22
could not have assessed whether any non-frivolous issues exist in
connection with [the] guilty plea proceeding. We therefore cannot
conclude that Counsel has fulfilled his obligations pursuant to
Anders.
Commonwealth v. Flowers, 113 A.3d 1246, 1250–51 (Pa. Super. 2015)
(citations omitted). Further, without the complete transcripts of the
proceedings, this Court is unable to “make a full examination of the
proceedings and make an independent judgment to decide whether the appeal
is in fact wholly frivolous.” Santiago, supra, at 355 n.5.
Accordingly, we deny counsel’s petition to withdraw and remand for
counsel to obtain the missing transcripts. After a full review of the record,
counsel shall either file another Anders brief and petition to withdraw or notify
this Court of his intention to file an advocate’s brief. If counsel elects to file
an advocate’s brief, we will remand for the filing of a concise statement
pursuant to Pa. R.A.P. 1925(b) and a responsive opinion from the trial court.
Petition denied. Case remanded. Panel jurisdiction retained.
-4-