Com. v. Martin, G.

J-S01036-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GERALD ROBERT MARTIN :
:
Appellant : No. 796 MDA 2021
Appeal from the Judgment of Sentence Entered May 24, 2021
In the Court of Common Pleas of Bradford County Criminal Division at
No(s): CP-08-CR-0000214-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GERALD ROBERT MARTIN :
:
Appellant : No. 795 MDA 2021
Appeal from the Judgment of Sentence Entered May 24, 2021
In the Court of Common Pleas of Bradford County Criminal Division at
No(s): CP-08-CR-0000362-2020
BEFORE: BOWES, J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED OCTOBER 13, 2022
Appellant, Gerald Robert Martin, appeals from the judgments of
sentence imposed following his entry of a nolo contendere plea to possession
of a controlled substance with intent to deliver (methamphetamine, less than
two and one-half grams) and a guilty plea to possession of drug
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* Retired Senior Judge assigned to the Superior Court.
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paraphernalia.1 Following an initial remand to ensure that Appellant’s counsel
properly sought to withdraw from his representation, we are tasked with
reviewing a petition to withdraw as counsel and an accompanying brief
pursuant to Anders v. California, 386 U.S. 738 (1967). We deny the petition
to withdraw as counsel and direct counsel to take remedial action within ten
days of the filing of this memorandum.
On or about August 29, 2018, the state police arranged through a
confidential informant to purchase a controlled substance from Appellant. N.T.
1/12/21, 9. The informant met with Appellant and another person named
Amanda Wilcox in Athens Township in Bradford County. Id. The informant
purchased less than two and one-half grams of methamphetamine from them.
Ms. Wilcox was the driver of a car at that location and Appellant was in the
front passenger seat. Id. Appellant conducted the conversation to arrange
the transaction and Ms. Wilcox was the one who completed the exchange with
the informant. Id. The methamphetamine sold to the informant weighed .79
grams. Id. After the police stopped a car transporting Appellant on March
29, 2020, they found Appellant in possession of a hypodermic needle. Id. at
8.
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1 35 P.S. § 780-113(a)(30), (32).
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On January 12, 2021, Appellant entered his pleas to the above-
referenced charges.2 N.T. 1/12/21, 1-10. The parties did not reach an
agreement on a sentencing recommendation but the Commonwealth agreed
to nolle prosse additional charges in exchange for the entry of the pleas.3 Id.
at 1-2; N.T. 5/24/21, 8. Sentencing was deferred for the preparation of a
pre-sentence investigation report. N.T. 1/12/21, 9.
On May 24, 2021, the court imposed an aggregate imprisonment term
of sixteen to sixty months, including consecutive prison terms of fifteen to
forty-eight months for possession of a controlled substance with intent to
deliver and one to twelve months for possession of drug paraphernalia.4 N.T.
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2 The drug possession charge was docketed at CP-08-CR-0000214-2020 and
the paraphernalia charge was docketed at CP-08-CR-0000362-2020. This
Court consolidated these cases, sua sponte, pursuant to Pa.R.A.P. 513. See
Order, 8/3/21 (per curiam).
3 The additional charges included two counts of criminal conspiracy (for
delivery of methamphetamine and heroin), an additional count of possession
of a controlled substance with intent to deliver (heroin), and single counts of
criminal use of a communication facility and false identification to a law
enforcement officer. Bills of Information, CP-08-CR-0000362-2020, 8/5/20,
1; Bills of Information, CP-08-CR-0000214-2020, 5/5/20, 1-2.
4 The Sentencing Guidelines recommended minimum imprisonment terms of
fifteen to twenty-one months, plus or minus six months for aggravating or
mitigating circumstances for possession of a controlled substance with intent
to deliver, and restorative sanctions to four months, plus for aggravating
circumstances. See 204 Pa. Code § 303.15 (7th ed., amend. 4 supp.;
comprehensive offense listing) (providing offense gravity scores of six and one
for possession of a controlled substance with intent to deliver and possession
of drug paraphernalia); 204 Pa. Code § 30316(a) (7th ed., amend. 4; basic
sentencing matrix); N.T. 5/24/21, 2 (noting the applicable guideline ranges
and that Appellant had a prior record score of four).
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5/24/21, 6-9; Sentencing Order, CP-08-CR-0000214-2020, 5/24/21, 1;
Sentencing Order, CP-XX-XXXXXXX-2020, 5/24/21, 1. Appellant did not file
post-sentence motions and filed timely notices of appeals in each of the
underlying cases. Notice of Appeal, CP-08-CR-0000214-2020, 6/21/21;
Notice of Appeal, CP-08-CR-000362-2020, 6/21/21, 1.
Appellant’s counsel filed an Anders brief for these consolidated appeals
but failed to file a petition to withdraw as counsel along with a required notice
letter advising Appellant of his rights under Anders and enclosing copies of
the brief and the petition to withdraw as counsel. This Court issued two orders
directing counsel to file an application to withdraw as counsel along with proof
that Appellant had been properly advised of his rights. Order, 11/3/21, 1;
Order, 11/18/21, 1. After no responsive filings were made with this Court, we
remanded this case for the purposes of allowing the plea court to hold a
hearing to determine whether counsel had abandoned Appellant.
Commonwealth v. Martin, 2022 WL 2764211, *2 (Pa. Super., filed July 15,
2022) (unpublished memorandum). Appellant’s counsel subsequently filed a
petition to withdraw as counsel with this Court, and the plea court informed
this Court of its findings that counsel had not abandoned his client and had
filed the withdrawal motion to “cure the identified deficiencies” that were
addressed in our former memorandum. Order, CP-08-CR-0000214-2020 &
CP-08-CR-000362-2020, 8/8/22, ¶¶ 3-5; Application to Withdraw as Counsel,
7/29/22.
Counsel’s Anders brief identifies three issues:
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1. Whether the Appellant’s plea was knowing, voluntary[,] and
intelligent.
2. Whether the sentence imposed was appropriate given the
circumstances of this case.
3. Whether the Appellant’s sentence was legal and within
Sentencing Guidelines for the Commonwealth of
Pennsylvania.
Anders brief, at 3.
Prior to addressing the issues identified in Appellant’s brief, we must
first resolve counsel’s petition to withdraw. Commonwealth v. Goodwin,
928 A.2d 287, 290 (Pa. Super. 2007) (en banc). An attorney seeking to
withdraw on appeal pursuant to Anders must take the following actions:
1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the brief to the [appellant]; and 3) advise the [appellant]
that he or she has the right to retain private counsel or raise
additional arguments that the [appellant] deems worthy of the
court’s attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc) (citation omitted; emphasis added). Our Supreme Court has also stated
that a proper Anders brief 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.
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Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Counsel also must
provide the appellant with a copy of the Anders brief, together with a letter
that advises the appellant of his or her 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) (citation omitted). “Substantial compliance
with the Anders requirements is sufficient.” Commonwealth v. Redmond,
273 A.3d 1247, 1252 (Pa. Super. 2022) (citation omitted).
Counsel filed an Anders brief and, following our former remand, a
petition to withdraw as counsel. The Anders brief substantially complies with
the requirements set forth in Santiago, although we note that the summary
of the procedural history and facts in the brief does not contain citations to
the certified record and the “Order in Question” section of the brief contains
nothing after a heading for that section. Anders brief, at v, 4-9. Copies of
Appellant’s Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal, that stated an intent to file the Anders brief, and the plea court’s Rule
1925(a) opinion are appended to the brief. Notably, the proof of service for
the brief does not reflect that counsel served Appellant with a copy of it.5
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5On the date that the brief was filed, counsel filed two proofs of service. One
was a form version generated by the Unified Judicial System of Pennsylvania’s
Web Portal that reflected electronic mail service to attorneys Brian Patrick
(Footnote Continued Next Page)
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In his petition to withdraw, counsel advises this Court that, after “a
conscientious examination of the record,” he communicated with Appellant
and “attempted to explain the absence of any arguable issue” to him. Petition
to Withdraw, 7/29/22, ¶¶ 2, 4. Counsel acknowledged that he furnished a
copy of the withdrawal petition to Appellant, along with a letter explaining
Appellant’s rights to “forward any additional argument or to retain new counsel
to represent him.” Id. at ¶ 5. In the letter to Appellant, counsel properly
informed Appellant of his rights to proceed pro se or with newly retained
counsel, acknowledged his filing of the Anders brief, and offered a short
explanation as to counsel’s reasons why some proposed claims for review
would not provide Appellant with a basis for relief. Correspondence to
Appellant, 7/28/22, attached to Petition to Withdraw, 7/29,22.
After previously delaying our review by twice ordering Appellant’s
counsel to file a petition to withdraw as counsel along with the Anders brief
and a required notice letter to Appellant and then remanding for proceedings
below when counsel failed to acknowledge or respond to our orders, this Court
would have liked to proceed with substantive review of the identified claims.
We are unable to do that because we unable to discern from the record that
counsel ever furnished a copy of the Anders brief to Appellant as required by
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Gallagher of the Bradford County Public Defenders’ Office and James Robert
Nasatka of the Bradford County District Attorney’s Office. The other form
appears to have been generated by counsel and reflected electronic and
regular U.S. mail service to the plea court, the prothonotary for the Bradford
County Court of Common Pleas, and the Bradford County District Attorney’s
Office.
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Cartrette, 83 A.3d at 1032. The proofs of service that counsel filed at the
time that he filed the brief do not reflect service to Appellant. Counsel also
does not acknowledge his service of the brief to Appellant in either the brief,
his petition to withdraw, or the petition’s accompanying letter to Appellant.
Counsel’s failure to acknowledge whether he satisfied his requirement to
provide Appellant with a copy of the Anders brief is particularly frustrating as
this Court reminded counsel of his need to acknowledge his enclosure of a
copy of the brief along with his correspondence to his client in our former
memorandum. See Martin, 2022 WL 2764211 at *1 (“Attorney Thompson
failed to file a contemporaneous application to withdraw as counsel and failed
to file the required notice letter addressed to Appellant explaining Appellant’s
rights under Anders and enclosing copies of the Anders brief and the
application to withdraw as counsel) (emphasis added).
Given counsel’s failure to demonstrate his compliance with an essential
requirement for seeking withdrawal under Anders, we deny counsel’s petition
to withdraw. We direct counsel to send new copies of the Anders brief, the
petition to withdraw as counsel, and the letter to Appellant that was attached
to the petition to withdraw as counsel with amended certificates
demonstrating proper service on Appellant and the Commonwealth. We
further direct counsel to file a proof of service with this Court reflecting his
service of new copies of all three pertinent documents (the brief, the petition,
and the letter) to Appellant and the Commonwealth. We direct counsel to
take this action within ten days of our filing of this memorandum.
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Petition to withdraw as counsel denied. Panel jurisdiction retained.6
Judge Nichols joins the memorandum.
Judge Bowes files a dissenting memorandum.
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6 We note that, as of the filing of this memorandum, Appellant has not filed
any responsive pleadings as a pro se litigant and that there have been no
filings reflecting the entry of an appearance for any privately retained counsel.
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