Com. v. Koncsler, C. ( 2019 )

J-S12033-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHARLES MICHAEL KONCSLER, :
:
Appellant : No. 1548 MDA 2018
Appeal from the Judgment of Sentence Entered August 24, 2018
in the Court of Common Pleas of Schuylkill County
Criminal Division at No(s): CP-54-CR-0002000-2017
BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.
JUDGMENT ORDER BY MUSMANNO, J.: FILED: APRIL 30, 2019
Charles Michael Koncsler (“Koncsler”) appeals from the judgment of
sentence imposed following his conviction of delivery of a controlled
substance. Additionally, on January 8, 2019, Koncsler’s counsel, Kent D.
Watkins, Esquire (“Attorney Watkins”), filed a brief pursuant to Anders v.
California, 386 U.S. 738, 744 (1967). However, Attorney Watkins has not
filed a separate petition to withdraw with this Court. Thus, we remand with
instructions to Attorney Watkins to either file an advocate’s brief or fulfill all
of the requirements of Anders.
Pursuant to Anders, when counsel believes that an appeal is frivolous
and wishes to withdraw from representation, he must do the following:
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record and
interviewing the defendant, counsel has determined the appeal
would be frivolous, (2) file a brief referring to any issues in the
record of arguable merit, and (3) furnish a copy of the brief to
J-S12033-19
defendant and advise him of his right to retain new counsel or to
raise any additional points that he deems worthy of the court’s
attention.
Commonwealth v. Burwell, 42 A.3d 1077, 1083 (Pa. Super. 2012)
(citations omitted); see also Commonwealth v. Santiago, 978 A.2d 349,
361 (Pa. 2009) (addressing the requisite contents of an Anders brief).
Here, Attorney Watkins has filed a purported Anders brief, and
concludes that the sufficiency claim raised by Koncsler is frivolous. See
Anders Brief at 7. Despite titling this filing an Anders brief, Attorney Watkins
did not file a petition to withdraw as counsel with this Court.1 See Burwell,
supra. Accordingly, since Attorney Watkins failed to either file a proper
advocate’s brief or fulfill the requirements set forth in Anders, we cannot
address Koncsler’s appeal.
Based upon the foregoing, we remand for Attorney Watkins to either file
an advocate’s brief or fulfill all of the requirements of Anders within thirty
____________________________________________
1 On January 17, 2019, this Court issued an Order directing Attorney Watkins
to file a proper petition to withdraw as counsel and to notify Koncsler of his
rights within 14 days of the date of the Order, and to file copies of such
notification with this Court. Receiving no response from Attorney Watkins,
this Court again issued an Order on February 6, 2019, directing Attorney
Watkins to file a proper petition to withdraw as counsel and to notify Koncsler
of his rights within 7 days of the date of the Order. On February 8, 2019,
Attorney Watkins filed a Response, attaching thereto a copy of the letter he
sent to Koncsler, advising Koncsler of his rights. However, Attorney Watkins
failed to include a petition to withdraw as counsel.
-2-
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days of the filing of this Order.2 The Commonwealth shall have thirty days
thereafter to file a responsive brief.
Case remanded with instructions. Panel jurisdiction retained.
____________________________________________
2 We additionally caution Attorney Watkins that a proper Anders brief must
include more than a bald allegation that Koncsler’s claims are frivolous. See
Santiago, supra.
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