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Commonwealth v. Orellana

Superior Court of Pennsylvania

February 24, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
RAUL E. ORELLANA, Appellant

Submitted: November 12, 2013.

Appeal from the Judgment of Sentence of the Court of Common Pleas, Monroe County, Criminal Division, No.: CP-45-CR-0001547-2012. Before WORTHINGTON, J.

James P. Gregor, Stroudsburg, for appellant.

Elmer D. Christine, Jr., District Attorney, Stroudsburg, for Commonwealth, appellee.

BEFORE: GANTMAN, J., OLSON, J., and WECHT, J.

OPINION

Page 878

WECHT, J.

Raul Orellana (" Orellana" ) appeals from his April 16, 2013 judgment of sentence. We remanded this case to permit the Monroe County Public Defender's office to file an " Anders/Santiago " -compliant brief.[1] See Commonwealth v. Orellana, 1423 MDA 2013, slip op. at 5 (Pa. Super. Dec. 30, 2013). On remand, Orellana's counsel has submitted an Anders brief and filed a petition to withdraw. We deny counsel's motion. Additionally, we remand, again, due to counsel's failure to comply with the requirements of Anders /Santiago. Specifically, counsel has identified a potentially meritorious issue in his brief before this Court, yet continues to seek leave to withdraw.

Page 879

On September 10, 2012, Orellana was charged by criminal information with driving under the influence (" DUI" ) general impairment (second offense),[2] disregarding traffic lanes,[3] careless driving,[4] and exceeding the established speed limit by twenty miles per hour.[5] On January 30, 2013, a jury found Orellana guilty of DUI general impairment graded as a first-degree misdemeanor, disregarding traffic lanes, and exceeding the maximum speed limit, both summary offenses. On April 23, 2013, Orellana was sentenced to ninety days' to twelve months' confinement on the general impairment charge. Additionally, his license was suspended for eighteen months and he was ordered to pay various fines. No additional sentence was assessed on the remaining charges.

On May 14, 2013, Orellana filed a timely notice of appeal. On May 15, 2013, the trial court ordered Orellana to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On June 6, 2013, Orellana timely complied. On June 27, 2013, the trial court issued its opinion pursuant to Pa.R.A.P. 1925(a). On July 3, 2013, Orellana filed a motion for parole. That motion was granted on July 17, 2013.

On August 20, 2013, Orellana's appellate counsel filed a brief claiming that Orellana had waived the two issues he wished to raise on appeal, namely, challenges to the weight and sufficiency of the evidence, for failure to file post-sentence motions. See Orellana, 1423 MDA 2013, slip op. at 3-4. On September 16, 2013, the Commonwealth adopted counsel's reasoning and filed an application to dismiss Orellana's appeal on identical bases. See Commonwealth's Application to Dismiss, 9/16/2013, at 1 (unpaginated).

Although not specifically styled as such, Orellana's counsel essentially argued in his first brief that all of his client's appellate issues were frivolous. As such, we chose to treat his submission as an Anders /Santiago brief, even though counsel did not file the customary petition to withdraw. See Orellana, 1423 MDA 2013, slip op. at 1-2. On December 30, 2013, we issued a memorandum, in which we found that counsel had failed to comply with the requirements of Anders/Santiago. Specifically, we found that counsel's theory that Orellana had waived his challenge to the sufficiency of the evidence was infirm. Id. at 3-4 (quoting Commonwealth v. Gezovich, 2010 PA Super 191, 7 A.3d 300, 302 n.2 (Pa. Super. 2010) (" [C]ounsel [is] not required to make a motion with the trial court in order to preserve a challenge to the sufficiency of the evidence[.]" )); see Pa.R.Crim.P. 606(A)(7). We remanded to allow counsel to resubmit either an advocate's brief, or a petition to withdraw and a proper Anders brief. Orellana, 1423 MDA 2013, slip op. at 4-5. We also denied the Commonwealth's application to dismiss Orellana's appeal. Id.

Appointed counsel has, as noted above, filed a new Anders /Santiago brief asserting that Orellana has no meritorious issues to pursue on appeal, and a corresponding petition to withdraw as counsel. This Court must first pass upon counsel's petition to withdraw before reviewing the merits of the underlying issues presented by Orellana. Comm ...


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