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Commonwealth v. Reichart

Superior Court of Pennsylvania

May 22, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
KENNETH REICHART, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence of September 4, 2012, in the Court of Common Pleas of Luzerne County, Criminal Division at No. CP-40-CR-0003500-2011

BEFORE: SHOGAN, MUNDY and COLVILLE [*] , JJ.

MEMORANDUM

COLVILLE, J.

This is an appeal from the judgment of sentence entered following Appellant's conviction, at a nonjury trial, of retail theft. In addition, Appellant's counsel has filed a petition to withdraw and a brief pursuant to Anders v. California, 386 U.S. 738 (1967). We grant counsel's petition and affirm the judgment of sentence.

The following principles guide our review of this matter:

Direct appeal counsel seeking to withdraw under Anders must file a petition averring that, after a conscientious examination of the record, counsel finds the appeal to be wholly frivolous. Counsel must also file an Anders brief setting forth issues that might arguably support the appeal along with any other issues necessary for the effective appellate presentation thereof. . . .Anders counsel must also provide a copy of the Anders petition and brief to the appellant, advising the appellant of the right to retain new counsel, proceed pro se or raise any additional points worthy of this Court's attention.
If counsel does not fulfill the aforesaid technical requirements of Anders, this Court will deny the petition to withdraw and remand the case with appropriate instructions (e.g., directing counsel either to comply with Anders or file an advocate's brief on Appellant's behalf). By contrast, if counsel's petition and brief satisfy Anders, we will then undertake our own review of the appeal to determine if it is wholly frivolous. If the appeal is frivolous, we will grant the withdrawal petition and affirm the judgment of sentence. However, if there are non-frivolous issues, we will deny the petition and remand for the filing of an advocate's brief.

Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007) (citations omitted).

Our Supreme Court has clarified portions of the Anders procedure:

Accordingly, we hold that in 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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

We conclude that counsel has substantially complied with the Anders requirements. We, therefore, will undertake a review of the appeal ...


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