Com. v. Hicks-Franklin, K. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEVIN GERARD HICKS-FRANKLIN :
:
Appellant : No. 829 WDA 2022
Appeal from the Judgment of Sentence Entered April 19, 2021
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0001634-2019
BEFORE: BENDER, P.J.E., BOWES, J., and SULLIVAN, J.
MEMORANDUM BY BOWES, J.: FILED: June 20, 2023
Kevin Gerard Hicks-Franklin appeals from the judgment of sentence of
twenty to forty years of incarceration followed by one year of probation
following his conviction of third-degree murder and related charges. Counsel
has filed an application to withdraw and brief pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009). We deny the petition to withdraw as counsel and direct
counsel to take remedial action within ten days of the filing of this
memorandum.
In light of our current disposition, we provide an abbreviated procedural
history. The underlying case concerns Appellant stabbing Starleisha Smith to
death in the presence of two other individuals. Following a trial, the jury
convicted Appellant of one count of third-degree murder, two counts of
aggravated assault, one count of possession of instruments of crime, two
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counts of recklessly endangering another person, and one count of terroristic
threats. On April 19, 2021, the trial court sentenced Appellant as indicated
above. Appellant filed post-sentence motions, which the trial court denied.
After having his appellate rights reinstated nunc pro tunc, this appeal followed.
Appellant and the trial court complied with Pa.R.A.P. 1925, and counsel has
filed both an Anders brief and a petition to withdraw. Counsel seeking to
withdraw pursuant to Anders must:
(1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; (2) furnish a copy
of the brief to the appellant; and (3) advise the appellant that he
or she has the right to retain private counsel or raise additional
arguments that the appellant deems worthy of the court’s
attention.
Commonwealth v. Redmond, 273 A.3d 1247, 1252 (Pa.Super. 2022)
(cleaned up). Our Supreme Court further detailed counsel’s duties as follows:
[I]n the Anders brief that accompanies court-appointed counsel’s
petition to withdraw, counsel 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, supra at 361. “Substantial compliance with these requirements is
sufficient.” Commonwealth v. Prieto, 206 A.3d 529, 533 (Pa.Super. 2019)
(cleaned up). “If counsel does not fulfill the aforesaid technical requirements
of Anders, this Court will deny the petition to withdraw and remand the case
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with appropriate instructions[.]” Commonwealth v. Wrecks, 931 A.2d 717,
721 (Pa.Super. 2007) (cleaned up).
Here, the Anders brief does not contain a summary of the facts or
citations to the record. Moreover, there is a discrepancy in identifying the
issues Appellant seeks to raise. Compare Petition to Withdraw, 1/20/23, at
unnumbered 1 (identifying the issues as questioning the sufficiency and
weight of the evidence) with Anders brief at 3 (identifying a sentencing
issue). If those were the only deficiencies, we might deem counsel to have
substantially complied with the technical requirements. However, the proofs
of service for the Anders brief and petition to withdraw do not reflect that
counsel served a copy to Appellant.1 Since we are unable to ascertain whether
counsel furnished a copy of the required documents to Appellant,2 an essential
requirement for seeking withdrawal under Anders, we deny her petition to
withdraw. We direct counsel to rectify the inconsistency between the petition
to withdraw and the Anders brief. Counsel shall then send new copies of the
corrected Anders brief, petition to withdraw as counsel, and letter to
Appellant with amended certificates of service demonstrating proper service
on Appellant and to file a proof of service with this Court reflecting such
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1 Counsel’s certificates of service reflect service on the prothonotary and the
district attorney’s office. The attached proofs of service reflect service only
on the district attorney’s office.
2 While counsel purports to have provided Appellant a copy of her brief and
petition to withdraw with the letter informing him of his rights, the letter itself
lacks any proof or certificate of service. Moreover, counsel does not
acknowledge any such service in the Anders brief or petition to withdraw.
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service. Counsel is ordered to complete these actions within ten days of our
filing of this memorandum. Appellant shall then have thirty days to respond.
Petition to withdraw as counsel denied. Panel jurisdiction retained.
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