Com. v. Kellum, J. ( 2023 )

J-S01012-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JUSTIN JAUWN KELLUM :
:
Appellant : No. 415 WDA 2022
Appeal from the Judgment of Sentence Entered July 27, 2021
In the Court of Common Pleas of Mercer County Criminal Division at
No(s): CP-43-CR-0000566-2020
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED: APRIL 20, 2023
Appellant, Justin Jauwn Kellum, appeals nunc pro tunc from the July 27,
2021 judgment of sentence of an aggregate term of 27-60 years’
imprisonment. In addition, Appellant’s counsel, Melissa Merchant-Calvert,
Esq., seeks to withdraw her representation of Appellant. We deny Attorney
Merchant-Calvert’s petition to withdraw and remand with instructions.
We need not delve into the facts underlying Appellant’s convictions at
this juncture. Instead, we only note that, in April of 2021, a jury convicted
Appellant of one count of robbery, 18 Pa.C.S. § 3701(a)(1)(i), and two counts
of aggravated assault, 18 Pa.C.S. § 2702(a)(1). On July 27, 2021, the trial
court sentenced Appellant to the term set forth supra. The trial court
subsequently granted Appellant an enlargement of time to file post-sentence
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S01012-23
motions. Despite receiving an enlargement of time, Appellant filed no post-
sentence motions.
After Appellant filed multiple, untimely notices of appeal, the trial court
permitted him to appeal nunc pro tunc on April 12, 2022. The trial court
thereafter ordered him to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b), and he timely complied. The trial court
later issued a Rule 1925(a) opinion.
While Appellant’s appeal was pending before this Court, Appellant’s
previous counsel withdrew, and the trial court appointed Attorney Merchant-
Calvert to represent Appellant. On October 19, 2022, she filed a brief and a
petition to withdraw as counsel. In both filings, she indicates that she is
seeking to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927(Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).
In the brief, she presents the following issues for our review:
I. Whether the jury’s verdict was against the weight of the
evidence.
II. Whether the Mercer County Court of Common Pleas has
jurisdiction over this matter.
III. Whether the trial court abused its discretion by imposing an
excessive sentence.
IV. Whether trial counsel was ineffective for (A) failing to file a
habeas corpus motion; (B) failing to review discovery; (C) failing
to call a witness to testify at trial; and (D) failing to file a
[Pa.R.Crim.P.] 600 motion.
V. Whether the trial court engaged in misconduct by (A) stating
that Appellant would receive a harsh sentence if he did not accept
the plea offer; and (B) telling the jurors that they had to meet on
-2-
J-S01012-23
common ground after they announced that their decisions were
split.
VI. Whether the Commonwealth engaged in misconduct by
withholding D.N.A. results.
Attorney Merchant-Calvert’s Brief at 4-5 (unnecessary capitalization omitted).
Problematically, contrary to Attorney Merchant-Calvert’s assertions, this
case does not implicate Turner/Finley. Rather, because this case is a direct
appeal from Appellant’s judgment of sentence, Attorney Merchant-Calvert
must seek to withdraw her representation of Appellant pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009). Generally, Anders/Santiago provides heightened
protections to defendants in comparison to Turner/Finley:
Anders and Turner/Finley are close cousins, bearing similarities
in that counsel is required to examine the record, present issues,
and request permission to withdraw. However, there are also
significant differences. Anders applies to direct appeals;
Turner/Finley applies to [Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541-9546,] cases. Anders counsel is not permitted
to withdraw unless the appeal is wholly frivolous, but
Turner/Finley counsel is permitted to do so if the case lacks
merit, even if it is not so anemic as to be deemed wholly frivolous.
Also, Anders counsel must not argue against the client’s interests
while Turner/Finley counsel must do so, articulating why the
client’s claims have no merit.
The heightened protection afforded to Anders appellants as
compared to Turner/Finley petitioners/appellants arises
because the right to counsel on direct appeal and the right to the
direct appeal itself are constitutional ones. By comparison, a first-
time PCRA petitioner’s right to counsel is born of rule, namely
Pa.R.Crim.P. 904(C), and that right does not spring from the
federal or state constitutions.
Commonwealth v. Wrecks, 931 A.2d 717, 721-22 (Pa. Super. 2007)
(internal citations omitted).
-3-
J-S01012-23
We recognize that this Court may accept an Anders brief in lieu of a
Turner/Finley no-merit letter, as an Anders brief provides greater
protection to a defendant. Commonwealth v. Widgins, 29 A.3d 816, 817
n.2 (Pa. Super. 2011) (citation omitted). However, we know of no legal
authority supporting that this Court may accept a Turner/Finley no-merit
letter in lieu of an Anders brief.
We further note that, when counsel seeks to withdraw pursuant to
Anders,
this Court must first pass upon counsel’s petition to withdraw
before reviewing the merits of the underlying issues presented by
[the appellant]. Commonwealth v. Goodwin, 928 A.2d 287,
290 (Pa. Super. 2007) (en banc).
Prior to withdrawing as counsel on a direct appeal under Anders,
counsel must file a brief that meets the requirements established
by our Supreme Court in Santiago. The brief 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.
Santiago, 978 A.2d at 361. Counsel also must provide a copy of
the Anders brief to [her] client. Attending the brief must be a
letter that advises the client of his 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
-4-
J-S01012-23
brief.” Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa.
Super. 2007), appeal denied, … 936 A.2d 40 ([Pa.] 2007).
Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014). After
determining that counsel has satisfied these technical requirements of Anders
and Santiago, this Court must then “conduct a simple review of the record to
ascertain if there appear on its face to be arguably meritorious issues that
counsel, intentionally or not, missed or misstated.” Commonwealth v.
Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en banc).
Here, in addition to erroneously stating that she is seeking to withdraw
pursuant to Turner/Finley, Attorney Merchant-Calvert fails to comply with
the above-stated Anders/Santiago requirements. First, the brief filed by
Attorney Merchant-Calvert does not provide a summary of the facts of the
case, with citations to the record. Instead, she merely recounts the procedural
history of the case and includes no record citations. Second, while Attorney
Merchant-Calvert concludes at the end of the brief that there are no non-
frivolous issues, she also states in the beginning of the brief that she is seeking
to withdraw because there are “no meritorious and/or non-frivolous issues
for appeal….” Attorney Merchant-Calvert’s Brief at 8 (emphasis added). We
reiterate that Anders counsel may not withdraw unless the appeal is wholly
frivolous; it is not sufficient to just lack merit. See Wrecks, supra. Third,
in stating reasons why Appellant’s appeal is frivolous, Attorney Merchant-
Calvert makes no mention of the relevant facts of record, controlling case law,
and/or statutes on point that have led to the conclusion that the appeal is
frivolous. See Orellana, supra. Her analysis of all six issues spans a mere
-5-
J-S01012-23
four pages, and incudes no meaningful discussion of the claims. She cites no
legal authority in the argument section of the brief other than Turner and
Finley,1 and she fails to reference the trial transcript or mention any of the
specific facts adduced at trial.
Furthermore, while Attorney Merchant-Calvert does not attach a copy of
the notice-of-rights letter to her petition to withdraw, a copy of the letter is
appended to her brief. See Commonwealth v. Millisock, 873 A.2d 748,
752 (Pa. Super. 2005) (opining that “the prudent course is to require counsel
henceforth to attach to their petition to withdraw a copy of the letter sent
to their client advising him or her of their rights”) (emphasis added). In the
letter, Attorney Merchant-Calvert states that, “[a]t this time, in recognition of
the absence of any arguable merit underlying your claim(s), I will be seeking
to withdraw as your attorney. You may, at your option, proceed pro se, with
privately retained counsel, or not at all, pursuant to … Turner….” See
Attorney Merchant-Calvert’s Brief at Exhibit D. However, as we set forth
above, to comply with Anders/Santiago, counsel must advise Appellant of
his 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.” Orellana, supra (citing Nischan, supra; emphasis
____________________________________________
1 We have already deemed Turner and Finley to be irrelevant to the matter
at hand.
-6-
J-S01012-23
added). Attorney Merchant-Calvert did not inform Appellant of this third,
emphasized right.
Based on the foregoing, Attorney Merchant-Calvert has not met the
requirements of Anders/Santiago. As such, we must deny her petition to
withdraw and remand with the following instructions. See Wrecks, 931 A.2d
at 721 (“If counsel does not fulfill the aforesaid technical requirements of
Anders, this Court will deny the petition to withdraw as counsel and remand
the case with appropriate instructions (e.g., directing counsel either to comply
with Anders or file an advocate’s brief on [the] [a]ppellant’s behalf).”)
(citation omitted). We instruct Attorney Merchant-Calvert to file — within 30
days of the date of this decision — either an advocate’s brief on Appellant’s
behalf, or a petition to withdraw and brief that comply with
-7-
J-S01012-23
Anders/Santiago.2, 3 Counsel must attach to her petition to withdraw a copy
of a letter to Appellant advising him of all three of the rights discussed above.
Along with the letter, Attorney Merchant-Calvert must send Appellant a copy
of the Anders brief. Thereafter, we will provide Appellant thirty days from
the date of Attorney Merchant-Calvert’s letter to file a pro se response to
counsel’s petition to withdraw.
____________________________________________
2 We point out that:
To adequately preserve a discretionary sentencing claim, the
defendant must present the issue in either a post-sentence
motion, or raise the claim during the sentencing proceedings. In
the non-Anders context, the defendant must preserve the issue
in a court-ordered Pa.R.A.P. 1925(b) concise statement and a
Pa.R.A.P. 2119(f) statement. Where counsel files an Anders
brief, this Court has reviewed the matter even absent a separate
Pa.R.A.P. 2119(f) statement.
Commonwealth v. Zeigler, 112 A.3d 656, 661 (Pa. Super. 2015) (cleaned
up); see also Pa.R.A.P. 2119(f) (“An appellant who challenges the
discretionary aspects of a sentence in a criminal matter shall set forth in a
separate section of the brief a concise statement of the reasons relied upon
for allowance of appeal with respect to the discretionary aspects of a sentence.
The statement shall immediately precede the argument on the merits with
respect to the discretionary aspects of the sentence.”).
3 In addition, we observe that, generally, defendants should defer ineffective
assistance of counsel claims until collateral review. See Commonwealth v.
Holmes, 79 A.3d 562, 563-64 (Pa. 2013). Nevertheless, ineffective
assistance of counsel claims may be reviewed on direct appeal if (1)
“extraordinary circumstances” exist “where a discrete claim (or claims) of trial
counsel ineffectiveness is apparent from the record and meritorious to the
extent that immediate consideration best serves the interests of justice”; or
(2) there is good cause shown, and the defendant waives “his entitlement to
seek PCRA review from his conviction and sentence, including an express
recognition that the waiver subjects further collateral review to the time and
serial petition restrictions of the PCRA.” Id. (footnotes omitted).
-8-
J-S01012-23
Petition to withdraw denied. Case remanded with instructions.
Jurisdiction retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/20/2023
-9-