*1 Pennsylvania, COMMONWEALTH
Appellee BANEY, Appellant.
Jeremy Michael Pennsylvania.
Superior Court April
Submitted Sept.
Filed 10, 2004.
Reargument Denied Nov. *2 KLEIN,
Before: POPOVICH and JOHNSON, JJ.
KLEIN, J.:
¶ 1
Following
grand
statewide
jury
investigation, Jeremy Michael Baney en-
negotiated guilty pleas
tered
to 30 out of
charges
relating to his central role in a
drug
ring
distribution
across Lycoming,
Clinton, and
Baney ap-
Centre Counties.
peals
negotiated aggregate
sentence of
240 to 468 months’ incarceration.
ap-
On
peal, Baney’s
pur-
counsel has filed a brief
California,
suant
to Anders v.
386 U.S.
(1967).
¶2 We have reviewed the issues con-
brief, and,
tained
the Anders
after an
thorough
review of the
record,
wholly
find all issues
See
lant. provide lawyer that a seeking Madeira, T. Michael Atty, Asst. Dist. withdraw from an he determines College Foerster, State and Jerome T. wholly to, to be duty frivolous has a inter Com., alia, Atty., Harrisburg, Asst. Dist. for the advise his client of his to retain appellee. counsel, new proceed pro se or raise If the determines worthy he deems points additional it should v. Her- are not court’s attention. Commonwealth nandez, (Pa.Super.2001). accordingly. 783 A.2d relief grant Ellis, time, At the same in the Am If it finds the issues *3 frivolous, the Court wholly ders brief to be prohibit “hybrid represen- Pa.R.A.P. 33041 whether the defendant should determine tation,” review of a defendant’s precluding amount of a reasonable given has been represented by if is counsel. pro se brief he or obtain pro file a se brief time to either Ellis, See Commonwealth at 386 U.S. new counsel. See (1990) (en banc). A.2d 595 While (“A of counsel’s brief copy technically “represented a defendant is and time indigent furnished the should be filing of an Anders despite counsel” that he any points allowed him to raise per- is and remains so until counsel brief chooses”). withdraw, it appears mitted to ren-
right pro to file a se brief would be amount of 4. a reasonable When if not meaningless dered the Court will pro and no se or counseled passed time has deciding it when consider filed, should dis has been the Court brief if flagged issues are frivolous and thus pursu frivolous appeal miss the permitted should be to withdraw. counsel and affirm ant to its initial determination pro to se simply, right proceed Stated of the trial court. the decision points and raise additional would be hollow merely if it to file a embodies the has proa se or counseled brief 5. When document that will not be reviewed. amount of a reasonable been filed within ¶ only one reason- time, however, 5 There seems should then con- the Court apparent able course around this dilemma. contained of the issues sider the merits attorney appellate If an files a standard accordingly. upon rule them therein and brief, a se should not be consid- pro brief a different compel does not 7 Ellis ered, in and Pa. accordance with Ellis Ellis, counsel did not file result. In R.A.P. 3304. di- issues on but advocated brief ¶ If, however, An- attorney files an pro Ellis filed a se brief appeal. rect brief, being it is akin to the defendant ders It by counsel. asserting issues not raised counsel, attorney without since the it makes sense to situation that is behalf, any argument on but has made job and not to do his or her allow counsel merely “potential” issues. There- flagged muddy se defendant pro allow a fore, following appropriate pro- is the to allow a do not want waters.2 The courts cedure: or herself to shoot himself layperson issues that inter- by raising frivolous foot ini Superior The Court should
1.
may have
those that
fere with or dilute
tially
only the Anders brief
consider
Ellis,
Justice
In
former Chief
are in fact merit.
whether the issues
determine
maxim of
now-famous
Flaherty cited the
wholly frivolous.
Although
an An-
the Ellis Court referenced
litigant
represented
an attor-
2.
"Where a
is
decision,
litigant
portion submits
ney
the Court and the
in its
before
ders scenario
motion,
dicta,
filing petition,
brief or
other
had
counsel
opinion was
as Ellis'
matter,
Ellis,
not be
type
pleading in the
it shall
brief. See
an advocate’s
record.”
but forwarded to counsel of
docketed
at 1140.
Pa.R.A.P. 3304.
Judge Rug-
Third
11 In his
se
raises
Federal
Circuit Senior
Aldisert,
gero
that “the number of claims
issues similar and in addition to those con-
appeal
usually
in an
is
inverse
tained in counsel’s Anders brief. As not-
proportion
ed,
to their merit.” 626 A.2d at
we
address the issues contained in
will
1140-1141,
Aldisert,
R.
citing
Appel-
“The
duty
both briefs
fulfillment
our
Competence
late Bar: Professional
thorough
conduct an
ex-
Responsibility—A
Professional
View From
amination of the record on
and our
Eye
Appellate
Jaundiced
of One
obligation to allow the defendant to raise
Judge,”
Cap.
Rev.
U.L.
pro se.
his own issues
If,
case,
as in this
an Anders
filed,
per
following
brief
12 The
have been
the defendant should
*4
(1)
to
present
appeal:
mitted
his issues to
raised on
whether
the trial
prior
disposition
appeal.
jurisdiction
charges
to the final
court
had
over
Otherwise,
requirement
notifying
in
pertaining
occurring
to offenses
Centre
(2)
right
the client of his
to do so would
a
Counties;
Lycoming
and
whether the
pointless exercise.
court
an
be-
imposed
illegal
trial
sentence
cause the minimum sentence exceeded
¶
case,
9 In this
at first blush there
one-half the maximum in violation of 42
appears
problem,
to be a Lord3
since some
9756(b) (the
§
“minimum-maxi-
Pa.C.S.
by Baney
of the issues addressed
in his
(3)
rule”);
mum
trial court
whether the
pro se
not
in
brief were
the Rule
merg-
not
imposed
illegal
by
an
sentence
1925(b)
by
statement
his counsel.
ing Baney’s
corrupt organi-
conspiracy and
However,
this
ad
situation has been
sentencing pur-
zations
for
convictions
Hernandez,
by
dressed
Commonwealth v.
(4)
poses;
whether the trial court abused
There,
(Pa.Super.2001).
trafficking, provides
minimum
apply
sentences contained therein shall
“
¶ Baney
claims that he did not
any
‘[notwithstanding
provisions
other
knowingly
voluntarily
negoti
his
and
enter
”
of
any
contrary.’
this or
other act to the
record
plea
guilty.
ated
of
The
refutes
289, quoting
at
Hockenberry
18 Pa.C.S.
claim.
to ensure that a
In order
7508(a).
§
Given that section 7508 was defendant
the connotations of
understands
Pennsylva
enactment of
mini
plea
consequences,
enacted well after
the
the
and its
rule,
nia Rule of
Procedure
re
mum-maximum
the Court deter
Criminal
into the
quires
inquire
the court to
follow
clearly
mined
legislature
that the
intended
“(1)
colloquy:
ing
during
plea
areas
the
supersede
section 7508 to
the limits set
(2)
charges;
nature of
the factual
the
the
9756(b).
§
forth in 42 Pa.C.S.
Hockenber-
(3)
plea;
by
to trial
of the
basis
Bell,
ry at 289. See Commonwealth v.
(5)
(4)
innocence;
jury;
presumption
(1994) (section
Pa.
645 A.2d
sentences;
permissible range
and
mandatory
pro
7508’s
minimum sentence
judge’s authority
depart
from
sentence,
year
requiring
visions
3 to 5
any
Common
recommended sentence.”
despite
minimum-maximum
conflict with
Muhammad,
v.
wealth
§
rule of 42
was not uncon
Pa.C.S.
omitted);
(citation
Com
(Pa.Super.2002)
stitutional;
subsequently
7508 was
section
ment
Pa.R.Crim.P.
and
by
legislature
with inten
enacted
Here,
amply demon-
invoking
penalties
tion of
harsher
to deter
the record
Baney’s plea colloquy
that
covered
strates
drug trafficking).
(see
1396, 18L.Ed.2d 493
each of the above six areas
N.T. 386 U.S.
7-14).
(1967),
5/19/03,
process
suggests
comprehensive plea
The
disposition
of merit
briefs
notwithstanding, Baney asserts
colloquy
own behalf. Neverthe
appellant on his
that he
to understand his
was unable
less,
join
Majority’s
I
discussion
guilty plea proceedings
suppos-
because he
claims.
disposition
Baney’s
of the merits of
edly
bipolar
from
Howev-
suffers
disease.
observed, Baney’s
Majority
As the
er,
very plainly
the trial court
asked defen-
jurisdiction,
challenges to the trial court’s
dant on the record
he suffered
im
legality
of the sentence the court
physical disability
from
mental or
that
plea
posed, and the voluntariness
ability
with
to under-
would interfere
his
Baney
entirely
tendered are
guilty plea proceedings,
stand the
to which
they
ample reason
Consequently,
provide
(id.
Baney responded
negative
at 7-
petition
for counsel’s
and the
withdraw
8). Further, Baney unequivocally stated
grant
Majority’s
petition.
decision to
that
questions being
that he understood all the
supra;
See
asked,
entering
guilty plea
and was
his
467,
may successfully assert claims *6 statements).
contradict such Judgment of sentence affirmed. permitted is to withdraw.4 Counsel Pennsylvania, of COMMONWEALTH Appellant JOHNSON, Concurring files a J. Statement. FINLEY, Jr., Appellee. Paul POPOVICH, in the J. concurs
result. Pennsylvania. Superior Court
JOHNSON, J., concurring: May 2004. Submitted Sept. Filed 2004. Majority’s 1 I on the judgment reserve Reargument Denied Nov. 2004. “hybrid represen- issue of discussion tation,” representa- the extent of counsel’s California,
tion mandated Anders v. Heron, withdraw, petition frivolity. Commonwealth v. In his counsel averred upon of the record he had deter- review Baney’s However, "lacked merit.” mined that claims our review of based on withdraw, permitted howev- In order to er, record, appeal we conclude that the the entire appeal be satisfied that the counsel must permit counsel to "wholly frivolous.” would urge great- We counsel to exercise withdraw. 1396; U.S. at precision seeking er when withdrawal It is well settled that lack of future, should such circumstances arise. equivalent legal merit in an is not the