Com. v. Floyd, C. ( 2020 )

J-S54035-19
2020 PA Super 287COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHARLES FLOYD :
:
Appellant : No. 84 MDA 2019
Appeal from the Judgment of Sentence Entered December 21, 2018
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0001694-2012,
CP-22-CR-0002833-2018
BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.
DISSENTING OPINION BY BOWES, J.: FILED DECEMBER 16, 2020
I fully agree with my learned colleagues’ analysis and conclusion on the
issue regarding our Supreme Court’s decision in Commonwealth v. Walker,
185 A.3d 969, 977 (Pa. 2018). See Majority Memorandum at 5-6. I also
agree that we must deny counsel’s petition to withdraw because it is not clear
from the certified record that this appeal is wholly frivolous. However, I
cannot agree with the Majority’s decision to vacate Appellant’s guilty plea and
sentence rather than remand for the filing of an advocate’s brief.
The purpose of the withdrawal procedure set forth in Anders v.
California, 386 U.S. 738 (1967), is to “assure penniless defendants the same
rights and opportunities on appeal—as nearly as is practicable—as are enjoyed
by those persons who are in a similar situation but who are able to afford the
retention of private counsel.” Id. at 745. As such, appointed counsel must
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“support his client’s appeal to the best of his ability” unless “counsel finds his
case to be wholly frivolous[.]” Id. at 744.
Counsel who determines that his client’s appeal is wholly frivolous must
seek to withdraw and file a brief which “provide[s] the appellate courts with a
means for making two determinations—whether appointed counsel has fully
supported his client’s appeal to the best of his ability and whether the appeal
is indeed so lacking in merit that counsel should be permitted to withdraw.”
Commonwealth v. Santiago, 978 A.2d 349, 355 (Pa. 2009). If we agree
with counsel’s assessment that the appeal is wholly frivolous, then we proceed
to dispose of the appeal. Anders, supra at 744. However, if the court “finds
any of the legal points arguable on their merits (and therefore not frivolous)
it must, prior to decision, afford the indigent the assistance of counsel to argue
the appeal.” Id.Therefore, “if there are non-frivolous issues, we will deny the petition
and remand for the filing of an advocate’s brief.” Commonwealth v.
Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007). See also Commonwealth
v. Yorgey, 188 A.3d 1190, 1197 (Pa.Super. 2018) (en banc) (“We need
not analyze those issues of arguable merit; just identify them, deny the
motion to withdraw, and order counsel to analyze them.”); Commonwealth
v. Tejada, 176 A.3d 355, 362 (Pa.Super. 2017) (remanding for filing of
advocate’s brief upon concluding that issue raised by counsel was not
frivolous); Commonwealth v. Blauser, 166 A.3d 428, 434 (Pa.Super. 2017)
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(remanding for advocate’s brief because the “[a]ppellant’s Sixth Amendment
right to zealous advocacy on a first appeal forecloses this [C]ourt from simply
deciding the issue on the merits on the basis of counsel’s Anders brief”).
The Majority indicates that in the instant case, counsel has both
identified issues that lack merit and “provided advocacy in support of two
issues of arguable merit[.]”1 Majority Opinion at 7. I disagree. Counsel
plainly states his belief that this “appeal is wholly frivolous.” Anders brief at
13. See also id. at 4, 14, 15, 29 (same). He identifies the adequacy of the
waiver-of-counsel colloquy as a possible issue of merit, discusses the
applicable law, and explains why he believes that the claim warrants no relief.
See id. at 26-28. Counsel’s discussion of this issue provides no more
advocacy than his analysis of the rest of the points of arguable merit he
identifies and deems unavailing. Furthermore, in the face of counsel’s lack of
advocacy, the Commonwealth had no incentive to, and did not, offer any
counter-advocacy on the issue adjudicated by the Majority.
Hence, rather than decide the merits of the issues concerning
Appellant’s colloquy based upon the advocacy of counsel, the Majority acts
sua sponte in vacating Appellant’s guilty plea and sentences. I recognize that,
in instances where a petitioner’s right to relief was clear, we have granted
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1I note that this Court has expressly disavowed the propriety of such “quasi-
Anders” briefs in which counsel advocates for some issues and against others.
See Commonwealth v. Morrison, 173 A.3d 286, 293 (Pa.Super. 2017).
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substantive relief sua sponte based on issues revealed during our independent
review of the record rather than remanding for counsel to file an advocate’s
brief. See, e.g., Commonwealth v. Hankerson, 118 A.3d 415, 421 n.2
(Pa.Super. 2015) (agreeing with counsel’s assessment of the issues raised in
the Anders brief but sua sponte vacating sentence that included
unconstitutional mandatory minimum).
However, our Supreme Court has a “long standing policy disfavoring the
exercise of sua sponte review by appellate courts[.]” In re Adoption of
K.M.G., __ A.3d __, 2020 WL 6580616, at *10 (Pa. November 10, 2020).
The High Court recently reiterated:
Sua sponte consideration of issues disturbs the process of orderly
judicial decision making. A reviewing court addressing an issue
on its own deprives counsel of the opportunity to brief and argue
the issues and the court the benefit of counsel’s advocacy. It
renders the lower proceedings a mere dress rehearsal for further
appellate review.
Id. (internal quotation marks omitted).
Not only does the general policy against doling out justice in the absence
of advocacy militate against the Majority’s disposition of this appeal, but the
specifics of this case make it especially concerning. Counsel has represented
to this Court that, after discussing the impact this appeal could have on
Appellant’s ability to retain the benefit of his plea bargain, Appellant instructed
him to file an Anders brief rather than to challenge the adequacy of his waiver
colloquy. See Anders brief at 21-22. Further, Appellant has filed in this
Court a motion to dismiss his direct appeal counsel, signaling his desire to
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reframe his direct appeal issues differently than counsel has. Yet, the Majority
voids Appellant’s plea agreement of its own accord without giving Appellant
the opportunity to weigh in on the issue or signal that it is something he wishes
to pursue.
In my view, the proper course at this juncture is for this Court to deny
counsel’s petition to withdraw based on the existence of an issue of arguable
merit, and to remand for the filing of an advocate’s brief. On remand, the
trial court should hold a proper colloquy to determine whether counsel or
Appellant will be the one to file the brief. This route would ensure that
Appellant’s right to the advocacy of counsel, and his right to decide whether
to seek to negate his plea agreement,2 are both honored.
Therefore, I respectfully dissent.
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2 Pursuant to the agreement, Appellant received sentences below the
mitigated range of the guidelines. See N.T. Sentencing, 12/21/18, at 6.
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