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COMMONWEALTH PENNSYLVANIA v. JAMES EDWARD JOHNSON (09/27/76)

decided: September 27, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES EDWARD JOHNSON, APPELLANT



Appeal from Judgment of Sentence dated May 9, 1972, of the Court of Common Pleas of Fayette County, Criminal Action No. 88 of 1972. No. 409 April Term, 1975.

COUNSEL

James Edward Johnson, in pro. per., Thomas P. Ruane, Jr., Public Defender, Uniontown, for appellant.

Conrad B. Capuzzi, Dist. Atty., Uniontown, for appellee.

Price, J., files a dissenting opinion in which Watkins, President Judge, and Van der Voort, J., join.

Author: Per Curiam

[ 242 Pa. Super. Page 190]

The question is whether appellant's counsel should be permitted to withdraw. On March 8, 1972, appellant pleaded guilty to a charge of armed robbery. On May 9, 1972, he was sentenced to pay costs and to undergo imprisonment for six to twelve years. No direct appeal was taken. On April 23, 1973, appellant filed a PCHA*fn1 petition. The petition was denied on February 10, 1975, but appellant was granted leave to appeal nunc pro tunc, and counsel appointed to represent him. We conclude that counsel has failed to comply with the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968), and accordingly deny his request to withdraw.

Anders and Baker require that before counsel may withdraw, he must thoroughly examine the record and determine that his client's appeal is wholly frivolous. Commonwealth v. Greer, 455 Pa. 106, 314 A.2d 513 (1974); Commonwealth v. Jones, 451 Pa. 69, 301 A.2d 811 (1973).

It should be emphasized that lack of merit in an appeal is not the legal equivalent of frivolity. Anders "appears to rest narrowly on the distinction between complete frivolity and absence of merit. The latter is not enough to support either a request by counsel to withdraw, nor the granting of such a request by the court." ABA Project on Standards for Criminal Justice, Standards Relating to the Defense Function ยง 8.3, Commentary at 297 (Approved Draft, 1971).

[ 242 Pa. Super. Page 191]

. . . While it may or may not be true that appellant's prospects on appeal are dim, counsel may not withdraw unless he has determined that his client's case is entirely frivolous. Whether a new trial should be granted must remain a decision for the court, not defense counsel.

Commonwealth v. Greer, supra, 455 Pa. at 109, 314 A.2d at 514.

Once the determination of frivolity is made, counsel must:

(1) request the court's permission to withdraw, (2) submit with his request a brief referring the court to anything in the record which might arguably support an appeal, and (3) furnish a copy of this brief to his client in time to allow an appeal in propria persona or a request for appointment of new counsel. See Anders v. California, supra, 386 U.S. at 744, 87 S.Ct. at 1400; Commonwealth v. Jones, ...


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