Com. v. Shuman, T. ( 2018 )

J-S77004-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TORY XAVIER SHUMAN,
Appellant No. 962 MDA 2017
Appeal from the Judgment of Sentence Entered April 12, 2017
In the Court of Common Pleas of Schuylkill County
Criminal Division at No(s): CP-54-CR-0001569-2016
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 22, 2018
Appellant, Tory Xavier Shuman, appeals from the judgment of
sentence of one to twelve months’ incarceration, imposed after he was
convicted by a jury of simple assault and recklessly endangering another
person. Appellant seeks to challenge the sufficiency of the evidence to
sustain both of these convictions. Additionally, Appellant’s counsel, Kent D.
Watkins, Esq., seeks to withdraw his representation of Appellant pursuant to
Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009). After careful review, we deny counsel’s
petition to withdraw, and remand for further action by Attorney Watkins.
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* Former Justice specially assigned to the Superior Court.
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The facts and procedural history of Appellant’s convictions are not
necessary to our disposition of his appeal at this time. We only note that
Appellant filed a timely notice of appeal from the imposition of his sentence
on April 12, 2017. On September 26, 2017, Attorney Watkins filed with this
Court an “Application to Withdraw As Counsel,” as well as a “no merit” letter
pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988). A
Turner/Finley no merit letter is the proper filing where counsel seeks to
withdraw on appeal from the denial of post-conviction relief. However,
where, as here, counsel seeks to withdraw on direct appeal, he or she must
comply with the more stringent dictates of Anders/Santiago. See
Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011).
Consequently, on October 4, 2017, this Court issued an order directing
Attorney Watkins to comply with Anders/Santiago by filing a brief referring
to any issues that might arguably support Appellant’s appeal.
On November 2, 2017, Attorney Watkins filed an Anders brief.
Therein, counsel asserted that Appellant seeks to raise the following
question for our review: “Did the Commonwealth of Pennsylvania present
sufficient evidence to prove [Appellant] guilty of both simple assault and
recklessly endangering another person?” Anders Brief at 4. According to
Attorney Watkins, this claim is frivolous, and counsel cannot identify any
other, non-frivolous issues to present on appeal.
Preliminarily,
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[t]his 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 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.” Commonwealth v. Nischan, 928 A.2d 349,
353 (Pa. Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40
(2007).
Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014).
After determining that counsel has satisfied the technical requirements of
Anders/Santiago, this Court must then “conduct an independent review of
the record to discern if there are any additional, non-frivolous issues
overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d 1246,
1250 (Pa. Super. 2015) (citations and footnote omitted).
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Here, we are constrained to conclude that Attorney Watkins has failed
to satisfy the technical requirements for withdrawal. Specifically, while
counsel attached proof of service documents to both his application to
withdrawal and his Anders brief, those documents do not indicate service on
Appellant. Moreover, while counsel advised Appellant of his rights under
Nischan within the body of counsel’s original “no merit” letter, the proof of
service attached to that filing also did not list Appellant as an individual upon
whom service was made.1 In light of this record, it is unclear whether
Appellant has been provided with Attorney Watkins’ Anders brief, or
counsel’s petition to withdraw. We also cannot discern whether Appellant
has been informed of his rights under Nischan.
Therefore, we are compelled to deny Attorney Watkins’ petition to
withdraw. Within 21 days of the filing date of this memorandum, Attorney
Watkins shall file in this Court proof that he has served upon Appellant: (1) a
letter advising Appellant of his rights under Nischan, (2) counsel’s petition
to withdraw, and (3) counsel’s Anders brief. Appellant shall then have 30
days from the date on which Attorney Watkins files that proof of service in
this Court to file a response.
____________________________________________
1We note that, to date, Appellant has not filed any response to Attorney
Watkins’ petition to withdraw, “no merit” letter, or Anders brief.
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Petition to withdraw denied. Case remanded with instructions for
counsel. Jurisdiction retained.
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