Com. v. Lumb, J. ( 2020 )

J-S33004-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES J. LUMB :
:
Appellant : No. 435 EDA 2020
Appeal from the Judgment of Sentence Entered September 13, 2019
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0001617-2018
BEFORE: DUBOW, J., MURRAY, J., and STEVENS, P.J.E.*
JUDGMENT ORDER BY DUBOW, J.: FILED AUGUST 31, 2020
Appellant, James J. Lumb, appeals from the Judgment of Sentence
entered following his open guilty plea to one count of Conspiracy and two
counts of Robbery.1 We infer from Appellant’s Brief that appointed counsel,
Matthew S. Hagarty, Esq., seeks to withdraw his representation of Appellant
pursuant to Anders v. California, 386 U.S. 738 (1967). However, upon
review, counsel has not complied with either the procedural or the substantive
requirements when seeking to withdraw. Thus, we direct counsel to file an
advocate’s brief or, in the alternative, an application to withdraw and a
compliant Anders brief.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. §§ 903(a), 3701(a)(1)(ii).
J-S33004-20
In February 2018, Appellant conspired with two others to rob a bank in
Gladwyne, Montgomery County. Following his arrest, Appellant entered an
open guilty plea on December 18, 2018, and the court ordered a Pre-Sentence
Investigation. On September 13, 2019, the court imposed an aggregate
sentence of two to five years of incarceration, within the standard range of
the Sentencing Guidelines. See Trial Ct. Op., 3/4/20, at 1-2.
Appellant timely filed a Post-Sentence Motion, asserting his sentence
was excessive because the court failed to consider mitigating evidence. The
trial court denied Appellant’s Motion by operation of law. Appellant timely
appealed and filed a court-ordered Pa.R.A.P. 1925(b) Statement. The court
issued a responsive Opinion.
Appellant raises the following issue on appeal:
Should counsel be permitted to withdraw if, after a full review and
analysis of the record and controlling law, counsel has determined
that the appeal is frivolous?
Appellant’s Br. at 1.
Before we may grant counsel leave to withdraw pursuant to Anders,
counsel must petition this Court for leave to withdraw “stating that, after
making a conscientious examination of the record, counsel has determined
that the appeal would be frivolous[.]” Commonwealth v. Cartrette, 83 A.3d
1030, 1032 (Pa. Super. 2013) (en banc) (citation omitted).
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In addition, counsel must file a brief that meets the requirements
established by the Pennsylvania Supreme Court in Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009), namely:
(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.
Santiago, 978 A.2d at 361.
Finally, counsel must provide a copy of the Anders brief to his client.
“Attending the brief must be a letter that advises the client of [her] right to:
‘(1) retain new counsel to pursue the appeal; (2) proceed pro se on appeal;
or (3) raise any points that the appellant deems worthy of the court[’]s
attention in addition to the points raised by counsel in the Anders brief.’”
Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) (quoting
Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007)).
Counsel has not complied with these requirements: (1) counsel has not
filed an application to withdraw in this Court; (2) counsel’s Brief does not
articulate the issue Appellant seeks to pursue on appeal, nor does it provide
sufficient legal analysis in support of counsel’s conclusion that this appeal is
wholly frivolous; and (3) counsel has not supplied this Court with evidence
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documenting that he has advised Appellant in writing of the rights enumerated
in Nischan.
For these reasons, we direct counsel to file an advocate’s brief or, in the
alternative, an application to withdraw and a compliant Anders brief within
thirty days.
Appellant’s Brief stricken. Panel jurisdiction retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/31/20
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