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[U] Commonwealth v. Chitswara

Superior Court of Pennsylvania

February 11, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
MICHAEL J. CHITSWARA, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence March 14, 2013 In the Court of Common Pleas of Luzerne County Criminal Division No(s).: CP-40-CR-0001329-2012, CP-40-CR-0001330-2012, CP-40-CR-0001334-2012

BEFORE: MUNDY, WECHT, and FITZGERALD, [*] JJ.

MEMORANDUM

FITZGERALD, J.

Appellant, Michael J. Chitswara, appeals from the judgment of sentence entered in the Luzerne County Court of Common Pleas following his open guilty pleas for burglary, [1] receiving stolen property, [2] theft by unlawful taking, [3] identity theft, [4] and defiant trespass.[5] Appellant's counsel has filed a petition to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), with this Court. We grant counsel's petition and affirm the judgment of sentence.[6]

We adopt the facts set forth in the trial court's opinion. See Trial Ct. Op., 5/29/13, at 1-2. After a presentence investigation, on March 14, 2013, the court sentenced Appellant to an aggregate term of thirty to sixty months' imprisonment. Appellant filed a timely post-sentence motion alleging that the court should reconsider its sentence because Appellant had been participating in various drug and alcohol treatment programs and he was subsequently accused—but not yet charged—of driving under the influence ("DUI"). The court denied Appellant's post-sentence motion on March 25, 2013. Appellant timely appealed and timely filed a court-ordered Pa.R.A.P. 1925(b) statement.

On October 29, 2013, Appellant's counsel filed a petition to withdraw with this Court. Appellant did not file a pro se brief with this Court. "[T]his Court may not review the merits of the underlying issues without first passing on the request to withdraw." Commonwealth v. Garang, 9 A.3d 237, 240 (Pa.Super. 2010) (citation omitted).

[T]he three requirements that counsel must meet before he or she is permitted to withdraw from representation [are] as follows:
First, counsel must petition the court for leave to withdraw and state that after making a conscientious examination of the record, he has determined that the appeal is frivolous; second, he must file a brief referring to any issues in the record of arguable merit; and third, he must furnish a copy of the brief to the defendant and advise him of his right to retain new counsel or to himself raise any additional points he deems worthy of the Superior Court's attention.

Id. (citations omitted).

[I]n 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.

Santiago, 978 A.2d at 361.

[I]n Pennsylvania, when counsel meets his or her obligations, "it then becomes the responsibility of the reviewing court to make a full examination of the proceedings and make an independent judgment to decide ...

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