Com. v. Jenkins, R.

J. A17033/20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ROBERT JENKINS, : No. 151 EDA 2020
:
Appellant :
Appeal from the Judgment of Sentence Entered May 29, 2019,
in the Court of Common Pleas of Bucks County
Criminal Division at No. CP-09-CR-0005669-2018
BEFORE: BOWES, J., McCAFFERY, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 20, 2020
Robert Jenkins appeals from the May 29, 2019 judgment of sentence
entered by the Court of Common Pleas of Bucks County following his
conviction of robbery, criminal conspiracy to commit robbery, and possessing
instruments of crime.1 Patrick J. McMenamin, Jr., Esq., filed an application to
withdraw his appearance on April 22, 2020, alleging that the appeal is
frivolous, accompanied by an Anders brief.2 After careful review, we grant
Attorney McMenamin’s application to withdraw and affirm the judgment of
sentence.
The trial court set forth the following procedural history:
1 18 Pa.C.S.A. §§ 3701(a)(1)(ii), 903(a), and 907(a).
2See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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On May 29, 2019, [appellant] entered a guilty plea to
robbery (threatening another with/intentionally
putting another in fear of serious bodily injury), a
felony of the first degree; criminal conspiracy to
commit robbery, a felony of the first degree; and
possessing instruments of crime, a misdemeanor of
the first degree. Pursuant to a plea agreement
between [appellant] and the Commonwealth,
[appellant] was sentenced to a term of incarceration
of six and a half to fifteen years. [Appellant] did not
file a timely post-sentence motion or a direct appeal.
On August 5, 2019, [the trial] court received a letter
from [appellant], dated July 31, 2019, requesting
appointment of counsel to assist him in filing “a
reconsideration” and to “retract my guilty plea.” Since
the time for filing post-sentence motions and a direct
appeal had expired, [appellant’s] letter was treated as
a request for relief under the Post Conviction Relief
Act (“PCRA”).[3] On August 19, 2019, PCRA counsel
was appointed. On November 15, 2019, [the trial]
court entered an agreed order granting [appellant’s]
request for PCRA relief and reinstating [appellant’s]
right to file post-sentence motions and/or a direct
appeal from the judgment of sentence nunc pro
tunc.
On November 25, 2019, [appellant] filed a motion for
reconsideration of sentence nunc pro tunc. By order
dated[] November 27, 2019, [appellant’s] motion for
reconsideration of sentence was denied.
On December 27, 2019, [appellant] filed [a] notice of
appeal. On January 7, 2020, [appellant] was directed
to file a concise statement of matters complained of
on appeal []. On January 13, 2020, [appellant] filed
his [Rule 1925(b)] statement challenging the
discretionary aspects of [his] sentence.
3 42 Pa.C.S.A. §§ 9541-9546.
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Trial court opinion, 2/26/20 at 1-2 (citations, citations to the record, footnote,
and extraneous capitalization omitted). The trial court filed an opinion
pursuant to Pa.R.A.P. 1925(a) on February 26, 2020.
As noted above, Attorney McMenamin filed with this court an Anders
brief and an application to withdraw as counsel on April 22, 2020. On April 28,
2020, this court entered an order noting that Attorney McMenamin failed to
attach a copy of his letter to appellant, explaining appellant’s rights, to his
application to withdraw. (Order of court, 4/28/20 (per curiam).) This court
ordered Attorney McMenamin to provide this court with a copy of his letter to
appellant advising appellant of his rights. (Id.) On April 29, 2020,
Attorney McMenamin filed with this court a copy of the letter he sent to
appellant, wherein Attorney McMenamin advised appellant that he has “the
right to represent [him]self or to hire private counsel to represent [him.]”
(Response to order, 4/29/20, Ex. A.)
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. Commonwealth v. Woods, 939
A.2d 896, 898 (Pa.Super. 2007). This
Court has summarized these
requirements as follows:
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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
frivolous; and (4) state
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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 McMenamin’s application to withdraw, supporting
documentation, and Anders brief reveals that he has complied with all of the
foregoing requirements. We note that counsel has furnished a copy of the
brief to appellant, advised appellant of his right to retain new counsel or
proceed pro se, and raise any additional issues before this court that appellant
may deem pertinent; and has filed with this court a copy of the letter sent to
appellant as required under Commonwealth v. Millisock, 873 A.2d 748, 752
(Pa.Super. 2005) (citation omitted). See Commonwealth v. Daniels, 999
A.2d 590, 594 (Pa.Super. 2010) (“While the Supreme Court in Santiago set
forth the new requirements for an Anders brief, which are quoted above, the
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holding did not abrogate the notice requirements set forth in Millisock that
remain binding legal precedent.”). Appellant has not responded to
Attorney McMenamin’s Anders brief. As Attorney McMenamin has complied
with all of the requirements set forth above, we conclude that counsel has
satisfied the procedural requirements of Anders.
Once counsel has met his obligations, “it then becomes the responsibility
of the reviewing court to make a full examination of the proceedings and make
an independent judgment to decide whether the appeal is in fact wholly
frivolous.” Santiago, 978 A.2d at 355 n.5, quoting Commonwealth v.
McClendon, 434 A.2d 1185, 1187 (Pa. 1981). Therefore, we now turn to the
merits of appellant’s appeal.
Attorney McMenamin raises the following issue in his Anders brief: “Is
the record devoid of any issue having arguable merit and is appellant’s appeal
wholly frivolous?” (Anders brief at vi (full capitalization omitted).) Within
the Anders brief, however, Attorney McMenamin more specifically identifies
the following three issues:
A. Did the lower court err, and abuse its discretion
in sentencing appellant to the negotiated
aggregate sentence of not less than 6½ nor
more than 15 years[’ imprisonment]?
B. Does appellant have any grounds upon which to
seek the post-sentence withdraw his [sic] guilty
plea?
C. Is appellant eligible to raise one or more of the
three grounds of appeal that remain following
the entry of a negotiated guilty plea?
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Anders brief at 6, 8, 12 (full capitalization omitted).
Although Attorney McMenamin advances no argument in the Anders
brief with respect to these potential issues, we note that neither Anders nor
McClendon requires counsel to set forth an argument; rather, Anders
requires counsel to provide references to anything in the record that might
arguably support the appeal. Santiago, 978 A.2d at 354.
Attorney McMenamin has done so. After carefully reviewing the record in this
case, we conclude that the record supports Attorney McMenamin’s assessment
that the appeal is frivolous because the record demonstrates that appellant
entered into the negotiated plea agreement knowingly, voluntarily, and
intelligently. Additionally, the record reflects that appellant does not have any
meritorious grounds for challenging the legality of his sentence or the
jurisdiction of the trial court. (Anders brief at 12-13.)
Moreover, our independent review of the entire record reveals no
additional non-frivolous claims. We, therefore, affirm the judgment of
sentence and grant Attorney McMenamin’s application to withdraw.
Judgment of sentence affirmed. Application to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/20/2020
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