Com. v. Van Horn, D. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID ALLEN VAN HORN :
:
Appellant : No. 2581 EDA 2022
Appeal from the Judgment of Sentence Entered September 27, 2022
In the Court of Common Pleas of Monroe County
Criminal Division at No: CP-45-CR-0002834-2021
BEFORE: PANELLA, P.J., LAZARUS, J., and STABILE, J.
MEMORANDUM BY STABILE, J.: FILED JUNE 22, 2023
Appellant, David Allen Van Horn, appeals from the judgment of sentence
imposed on September 27, 2022 in the Court of Common Pleas of Monroe
County after a jury convicted him of possessing a controlled substance and
possessing drug paraphernalia.1 On appeal, Appellant contends the trial court
abused its discretion by imposing an aggregate sentence of 22 to 48 months
in a State Correctional Institution. Appellant’s counsel seeks permission to
withdraw and has filed an Anders-Santiago2 brief in which he concludes that
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1 35 P.S. §§ 780-113(a)(16) and780-113(a)(32), respectively.
2Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
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all issues lack merit. However, because counsel has not satisfied the
requirements of Anders and Santiago, we deny his request to withdraw.
By way of background, after Appellant was sentenced on September 27,
2022, he filed a timely notice of appeal to this Court. On October 19, 2022,
the trial court directed Appellant to file a Rule 1925(b) statement of errors
complained of on appeal within twenty-one days. On October 27, 2022,
counsel for Appellant filed a Rule 1925(c)(4) statement of intent to file an
Anders brief in lieu of filing a concise statement.3
Appellant challenges the discretionary aspects of his sentence. See
Anders Brief at 4. Before we may consider the merits of Appellant’s
challenges, however, we must address the adequacy of counsel’s compliance
with Anders and Santiago. Commonwealth v. Washington, 63 A.3d 797,
800 (Pa. Super. 2013); see also Commonwealth v. Rojas, 874 A.2d 638,
639 (Pa. Super. 2005) (“When faced with a purported Anders brief, this Court
may not review the merits of the underlying issues without first passing on
the request to withdraw.”) (citation omitted).
As this Court directed in Commonwealth v. Orellana, 86 A.3d 877(Pa. Super. 2014):
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3Although represented by counsel, Appellant filed a pro se document with this
Court titled, “Concise statement of matters complained of on appeal,” and
dated October 26, 2022. The document was forwarded to Appellant’s counsel
pursuant to Commonwealth v. Jette, 23 A.3d 1032 (Pa. 2011).
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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 his 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 brief.
Id. at 879-80 (citation and internal quotations omitted).
Counsel’s brief provides a summary of the procedural history and facts
with citations to the record, refers to matters of record relevant to this appeal,
and explains why the appeal is frivolous. In addition, counsel indicated that
he notified Appellant of his request to withdraw, and that he attached that
notification letter as Exhibit B. See Anders Brief at 12. However, despite
representing that he notified Appellant of his intent to withdraw, provided him
a copy of the brief, and advised him of his rights, he has not presented any
evidence of providing either a copy of the brief or the required letter advising
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Appellant of the rights listed in Orellana.4 In fact, the brief itself does not
include a proper certificate of service as required by Pa.R.A.P. 121(d).5
Counsel did file two separate certificates of service with this Court on
January 23, 2023, the same day he filed his brief. However, while we might
ignore the fact the certificates do not identify the documents served, we
cannot ignore the fact the certificates reflect service of the documents on
counsel for the Commonwealth only. There is no suggestion that either
“document” was served on Appellant.
On the same day he filed his Anders brief, counsel also filed an
Application for Leave to Withdraw as Counsel. In his application, counsel
represented that he spoke with Appellant on “June 25, 2019,”6 and “orally
advised him of the intent to file the Anders brief.” Application, 1/23/23, at
¶ 14. “Accordingly, the undersigned has prepared a ‘Notice of Rights’ for
Appellant. A copy of the ‘Notice of Rights’ is attached as Exhibit ‘A.’” Id. at
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4 Counsel indicated that the trial court’s Rule 1925(a) opinion was attached to
the brief as Exhibit A, and the “Notice of Rights” letter sent to Appellant was
attached as Exhibit B. Anders Brief at 9. However, Exhibit A to the brief is
the September 27, 2022 sentencing order—not the Rule 1925(a) opinion,
which is to be attached to the brief pursuant to Rule 2111(a)(10) and (b), and
Exhibit B is the October 28, 2022 letter advising Appellant of counsel’s intent
to file a petition to withdraw.
5Further, we note that the brief also lacks the notices required by Pa.R.A.P.
2111(a)(12).
6 The incident leading to Appellant’s arrest occurred on July 15, 2021. Clearly,
the June 25, 2019 date noted in the application is incorrect.
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¶ 15. “The undersigned has also served Appellant with the instant application
to withdraw as counsel and the accompanying Anders brief.” Id. at ¶ 16.
As noted above, counsel did file certificates of service on January 23,
2023, when he filed both his brief and his application to withdraw. However,
neither certificate identifies the document served and neither reflects service
on Appellant. Rather, counsel certified only that he served “documents” on
counsel for the Commonwealth.
In sum, counsel has failed to supply evidence that he provided Appellant
a copy of the Anders brief or a letter advising Appellant of his rights, as
outlined in Orellana. Further, there is no indication that counsel served a
copy of his application to withdraw on Appellant. Therefore, we shall not grant
counsel’s application. Instead, we direct counsel to file a proper Anders brief
within 30 days of this Memorandum and provide a copy of the brief to
Appellant. See Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super.
2007). A letter explaining Appellant’s rights, as outlined in Orellana, supra,must accompany the brief. Further, counsel is to serve a copy of his
application to withdraw on Appellant and file evidence of that service with this
Court. If counsel files a brief satisfying Anders, we will then undertake our
own review of the appeal to determine if it is wholly frivolous. Wrecks, 931
A.2d at 721 (citation omitted). However, if there are non-frivolous issues, we
will deny counsel’s petition to withdraw and direct counsel to file an advocate’s
brief. Id. (citation omitted). Finally, we remind counsel of the requirement
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to comply with the Rules of Appellate Procedure regarding an appellant’s brief,
see Pa.R.A.P. 2111, and regarding service, see R.A.P. 121(d).
Application to withdraw denied. Jurisdiction retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/22/2023
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