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[U] Commonwealth v. Bailey

Superior Court of Pennsylvania

June 20, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
MICHAEL A. BAILEY, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
MICHAEL A. BAILEY, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence entered September 12, 2012, in the Court of Common Pleas of Erie County Criminal Division at Nos: CP-25-CR-0002676-2010., CP-25-CR-0002014-2011.

BEFORE: SHOGAN, OTT, and STRASSBURGER, [*] JJ.

MEMORANDUM

STRASSBURGER, J.

In these consolidated appeals, Michael A. Bailey (Appellant) challenges the judgment of sentence of 25 to 56 months' incarceration entered September 12, 2012, after he pled guilty to two counts of theft by unlawful taking, and one count each of unauthorized use of a motor vehicle, criminal trespass, and driving while operating privileges suspended or revoked.[1]Additionally, Appellant's counsel has filed a petition to withdraw as counsel and an accompanying brief pursuant to Anders v. California, 386 U.S. 738 (1967), Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we grant counsel's petition to withdraw and affirm Appellant's judgment of sentence.

Appellant's judgment of sentence arises out of two separate incidents. The first incident occurred on or about June 28 to June 29, 2010, at which time Appellant removed from Tullio Towers, in the City of Erie, two computers valued at five hundred dollars each. Subsequently, Appellant was arrested and charged with two counts of theft by unlawful taking (docket no. 2676 of 2010).

The second incident occurred on July 5, 2011, wherein Appellant operated, without permission, his neighbor Michael Little's 1994 Buick Century. Mr. Little reported his car missing and Appellant was apprehended and charged with criminal trespass, unauthorized use of a motor vehicle and driving while his operating privilege was suspended or revoked (docket no. 2014 of 2011).

Appellant pled guilty to the charges at docket no. 2014 of 2011 on July 9, 2012. On July 19, 2012, Appellant entered pleas of no contest to the charges at docket no. 2676 of 2010. On September 12, 2012, Appellant was sentenced in absentia on all charges to an aggregate sentence of 25 to 56 months of incarceration, plus fines and costs. These timely appeals followed.[2]

On October 11, 2012, the trial court directed Appellant to file a concise statement of the matters complained of on appeal, pursuant to Pa.R.A.P. 1925(b). In response, counsel filed a statement of intent to file an Anders/McClendon brief, pursuant to Pa.R.A.P. 1925 (c)(4).[3] On appeal, counsel for Appellant has filed a petition for leave to withdraw as counsel and an Anders brief.

"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." Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super. 2005). Furthermore, there are clear mandates counsel seeking to withdraw pursuant to Anders/McClendon/Santiago must follow.

In order for counsel to withdraw from an appeal pursuant to Anders … certain requirements must be met:

(1) counsel must petition the court for leave to withdraw stating that after making a conscientious examination of the record it has been determined that the appeal would be frivolous;
(2) counsel must file a brief referring to anything that might arguably support the appeal, but which does not resemble a "no merit" letter or amicus curiae brief; and
(3) counsel must furnish a copy of the brief to defendant and advise him of his right to retain new counsel, proceed pro se or raise any additional points that ...

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