Com. v. Falcey, P.Com. v. Falcey, P.
OPINION BY BOWES, J.: FILED JANUARY 29, 2024
Patrick Michael Falcey, Jr. appeals from the judgment of sentence of two and one-half to five years of incarceration imposed after thе trial court found him in violation of his probation. Appellant‘s counsel, Stuart Wilder, Esquire has filed a petition to withdraw as counsel and brief pursuant to Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we deny counsel‘s petition to withdraw and remand for further proceedings consistent with this opinion.
Appellant рled guilty in 2021 to terroristic threats, simple assault, and possessing instruments of crime following an incident with his girlfriend and grandparents. The court imposed time served to two-years-less-one-day of imprisonment, followed by five years of probation. After his release from incarceration, Appellant failed to comply with the terms of his supervision, and
Counsel in this Court filed both an Anders brief and a petitiоn to withdraw as counsel. The following legal principles apply to our consideration of these filings:
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.
If counsel does not fulfill the aforesaid technical requiremеnts 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 Apрellant‘s behalf). By contrast, if counsel‘s petition and brief satisfy Anders, we will then undertake our own review of the appeal to determine if it is whоlly frivolous.
Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa.Super. 2007) (citations omitted). Our Supreme Court has further detailed counsel‘s duties as follows:
[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.
Based upon our examination of counsel‘s petition to withdraw and Anders brief, we conclude that he has not comрlied with the requirements set forth above. Counsel provided an appropriate summary of the facts and procedural history. Seе Anders brief at 6-12. Further, he supplied the brief to Appellant and advised him of his right to hire new counsel or proceed pro se in this Court.1 However, counsel‘s Anders brief is defective beсause it simultaneously contends that Appellant‘s appeal is wholly frivolous and that the lower court abused its discretion in sentencing Appellant to the abovementioned term. See id. at 13.
In this vein, counsel devotes a section of the Anders brief to explaining that Appellant‘s claims are frivolous and that he should be permitted to withdraw. See id. at 14-20. Counsel opines that “there are no non-frivolous grounds that can be advanced in support of [A]ppellаnt‘s appeal.” Id. at 20.
However, counsel then argues that, in sentencing Appellant, the court did not give sufficient weight to a purported mitigating factor, i.e., Appellant‘s rehabilitative needs. Id. at 25. Attorney Wilder contends that “[t]he court‘s explanation for its sentence insufficiently acknowledged the testimony of [A]ppellant and his father that augured a law-abiding future for the [A]ppellant once he received adequate treatment.” Id. Counsel asserts that because the judgement of sentence was not necessary to vindicate the authority of the court, it should be vacated as excessive, and the matter remanded tо the trial court. Id.
As this Court thoroughly discussed in Commonwealth v. Morrison, 173 A.3d 286 (Pa.Super. 2017), it is improper for counsel to file a hybrid advocate‘s/no-merit brief. We explained that the Anders procedure “applies only to appeals that are wholly frivolous—that is, cases whеre counsel has determined that there are no arguments that counsel may advance because all issues lack basis in law and/or fact.” Id. at 291 (emphases in original). Attorney Wilder briefly articulated what he believed to be an issue of arguable merit, namely that the sentence was not necessary to vindicate the court‘s authority and was excessive. Hence, the hybrid analysis outlined in the Anders brief is defective, and an advocate‘s brief is required.
Hence, we deny Attorney Wilder‘s petition tо withdraw and instruct the trial court to file an opinion addressing Appellant‘s sentencing claim within thirty days of the date of this opinion. The Prothonоtary of this Court shall subsequently establish a new schedule for briefing.
Finally, while Attorney Wilder and the Commonwealth both cite the transcript from Appellant‘s November 5, 2021 guilty plea and sentencing hearing, it is not included in the certified record. As it is Appellant‘s burden to ensure that the certified record is complete, we direct counsel to supplement the certified record with this transcript pursuant to
Petition of Stuart Wilder, Esquire, to withdraw as counsel is denied. Counsel shall obtain the missing transcript and secure its inclusion in a supplemental certified record. Matter remanded with instructions. Panel jurisdiction retained.