Com. v. Truitt, J.

J. S31044/20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JAMES LEE TRUITT, : No. 1773 MDA 2019
:
Appellant :
Appeal from the Judgment of Sentence Entered March 28, 2018,
in the Court of Common Pleas of Lancaster County
Criminal Division at No. CP-36-CR-0002601-2016
BEFORE: BOWES, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 19, 2020
James Lee Truitt appeals from the March 28, 2018 judgment of sentence
entered by the Court of Common Pleas of Lancaster County following his
conviction of one count of aggravated assault.1 Daniel C. Bardo, Esq., filed an
application for leave to withdraw his appearance on September 24, 2020,
alleging that there are no non-frivolous issues for appeal, accompanied by an
Anders2 brief. After careful review, we deny Attorney Bardo’s application for
leave to withdraw and remand with instructions.
Appellant entered a guilty plea to one count of aggravated assault on
June 14, 2017, and was admitted into the Mental Health Treatment Court that
1 18 Pa.C.S.A. § 2702(a)(1).
2See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
J. S31044/20
same day. (Notes of testimony, 6/14/17 at 5-6, 20.) Appellant was ultimately
discharged from the treatment court for violating the terms of the program.
(Notes of testimony, 1/3/18 at 3.) On March 28, 2018, the trial court
sentenced appellant to a term of three to six years’ imprisonment, with credit
for time served.
Appellant filed a timely post-sentence motion on April 5, 2018, which
the trial court denied on July 24, 2018. Appellant did not seek direct appellate
review of his judgment of sentence.
On March 21, 2019, appellant filed a timely pro se petition pursuant to
the Post Conviction Relief Act (“PCRA”).3 The PCRA court appointed counsel,
and counsel filed an amended PCRA petition on June 24, 2019. On
September 24, 2019, the PCRA court granted appellant’s PCRA petition and
reinstated his rights to file a direct appeal nunc pro tunc.
Appellant filed a timely notice of appeal on October 24, 2019. The trial
court subsequently ordered appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant’s
then-counsel, Randall L. Miller, Esq., filed a statement pursuant to
Pa.R.A.P. 1925(c)(4), wherein he indicated that he intended to request
permission to withdraw, as he determined that there were no non-frivolous
issues to raise on appellant’s behalf.
3 42 Pa.C.S.A. §§ 9541-9546.
-2-
J. S31044/20
On March 19, 2020, Attorney Bardo appeared to file an Anders brief.
(See appellant’s brief, 3/19/20 at 13 (concluding that “any appellate issues
are frivolous”).) Attorney Bardo failed to file a contemporaneous petition 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 petition to withdraw as counsel. See Commonwealth
v. Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007) (en banc);
Commonwealth v. Wrecks, 931 A.2d 717, 720 (Pa.Super. 2007);
Commonwealth v. Woods, 939 A.2d 896, 900 (Pa.Super. 2007), citing
Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa.Super. 2005).
We remanded this case on August 25, 2020 for appellant’s counsel to
either comply with the dictates of Anders and its progeny, or to file an
advocate’s brief on the merits. As noted above, Attorney Bardo filed an
application to withdraw his appearance, accompanied by an Anders brief on
September 24, 2020.
A request by appointed counsel to withdraw pursuant
to Anders and Santiago gives rise to certain
requirements and obligations, for both appointed
counsel and this Court. Commonwealth v. Flowers,
113 A.3d 1246, 1247-1248 (Pa.Super. 2015).
These requirements and the significant
protection they provide to an Anders
appellant arise because a criminal
defendant has a constitutional right to a
direct appeal and to counsel on that
appeal. [Woods, 939 A.2d at 898.] This
court has summarized these requirements
as follows:
-3-
J. S31044/20
Direct appeal counsel seeking
to withdraw under Anders
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.
Woods, 939 A.2d at 898 (citations
omitted).
There are also requirements as to the
precise content of an Anders brief:
[T]he Anders brief that
accompanies court-appointed
counsel’s petition to withdraw
. . . 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
-4-
J. S31044/20
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.
Id. at 1248. If this Court determines that appointed
counsel has met these obligations, it is then our
responsibility “to make a full examination of the
proceedings and make an independent judgment to
decide whether the appeal is in fact wholly frivolous.”
Id. at 1248. In so doing, we review not only the
issues identified by appointed counsel in the Anders
brief, but examine all of the proceedings to “make
certain that appointed counsel has not overlooked the
existence of potentially non-frivolous issues.” Id.
Commonwealth v. Hankerson, 118 A.3d 415, 419-420 (Pa.Super. 2015).
Our review of Attorney Bardo’s application for leave to withdraw his
appearance, supporting documentation, and Anders brief reveals that he has
not complied with all of the foregoing requirements. We note that
Attorney Bardo has furnished a copy of the Anders brief to appellant, advised
him of his right to retain new counsel or proceed pro se, and attached to the
Anders application a copy of the letter sent to appellant as required under
Millisock, 873 A.2d at 752 (citation omitted). See Commonwealth v.
Daniels, 999 A.2d 590, 594 (Pa.Super. 2010) (footnote omitted) (“While the
Supreme Court in Santiago set forth the new requirements for an Anders
brief, which are quoted above, the holding did not abrogate the notice
-5-
J. S31044/20
requirements set forth in Millisock that remain binding legal precedent.”).
Attorney Bardo’s letter, however, failed to advise appellant that he may raise
any additional points worthy of this court’s attention. See Woods, 939 A.2d
at 898.
We, therefore, remand and direct Attorney Bardo to send appellant a
letter, accompanied by the Anders brief, and his application for leave to
withdraw, that complies with the directives of Woods and Millisock.
Attorney Bardo shall comply with this directive within 30 days of the date of
this memorandum. Appellant may respond within 45 days of receipt of
Attorney Bardo’s Anders brief and accompanying letter.
Application for leave to withdraw as counsel denied. Case remanded.
Jurisdiction retained.
-6-