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[U] Commonwealth v. Thomas

Superior Court of Pennsylvania

February 10, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
EDWARD CALVIN THOMAS, JR. Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order Entered June 15, 2012 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0001914-2008

BEFORE: GANTMAN, J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM

GANTMAN, J.

Appellant, Edward Calvin Thomas, Jr., appeals from the order entered in the Lehigh County Court of Common Pleas, denying his pro se petition for writ of habeas corpus. We vacate, remand for further proceedings, and deny counsel's petition to withdraw.

The relevant facts and procedural history of this appeal are as follows. At No. 1914 of 2008, Appellant pled guilty to retail theft. On July 22, 2008, the court sentenced Appellant to six (6) to twenty-three (23) months' incarceration. The order also specified that Appellant would serve his sentence at Lehigh County Prison. The court granted parole on October 10, 2008, but Appellant subsequently re-offended. Appellant pled guilty to new theft offenses at No. 1391 of 2009, and the court sentenced him to an aggregate term of eleven (11) to thirty-six (36) months' imprisonment. On July 30, 2009, the court conducted a parole revocation hearing at No. 1914 of 2008. At the conclusion of the hearing, the court revoked parole and re-sentenced Appellant to the balance of his original sentence, to be served consecutive to the sentence imposed at No. 1391 of 2009. Appellant did not file post-sentence motions or a notice of appeal.

On June 15, 2012, Appellant filed a pro se petition for writ of habeas corpus. In it, Appellant complained about his re-sentencing at No. 1914 of 2008. Specifically, Appellant argued that he "was denied due process by the action of…aggregating [the] county sentence into [a] state sentence by the [court]." (Habeas Corpus Petition, filed 6/15/12, at 1). Appellant further argued that he "was denied his constitutionally protected and guaranteed right to effective assistance of counsel…." (Id. at 2). Also on June 15, 2012, the court denied the pro se habeas corpus petition.

Appellant timely filed a pro se notice of appeal on July 5, 2012. On July 19, 2012, the court ordered Appellant to file a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Following the issuance of an extension, Appellant filed a pro se Rule 1925(b) statement on August 31, 2012. Appellant also filed a pro se motion for appointment of counsel, which the court granted.

As a preliminary matter, appellate counsel seeks to withdraw his representation pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: 1) petition the Court for leave to withdraw, certifying that after a thorough review of the record, counsel has concluded the issues to be raised are wholly frivolous; 2) file a brief referring to anything in the record that might arguably support the appeal; and 3) furnish a copy of the brief to the appellant and advise him of his right to obtain new counsel or file a pro se brief to raise any additional points the appellant deems worthy of review. Santiago, supra at 173-79, 978 A.2d at 358-61. Substantial compliance with these requirements is sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super. 2007). "After establishing that the antecedent requirements have been met, this Court must then make an independent evaluation of the record to determine whether the appeal is, in fact, wholly frivolous." Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super. 2006) (quoting Commonwealth v. Townsend, 693 A.2d 980, 982 (Pa.Super. 1997)).

In Santiago, supra, our Supreme Court addressed the briefing requirements where court-appointed appellate counsel seeks to withdraw representation:

Neither Anders nor McClendon[1] requires that counsel's brief provide an argument of any sort, let alone the type of argument that counsel develops in a merits brief. To repeat, what the brief must provide under Anders are references to anything in the record that might arguably support the appeal.
* * *
Under Anders, the right to counsel is vindicated by counsel's examination and assessment of the record and counsel's references to anything in the ...

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