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Commonwealth v. Flowers

Superior Court of Pennsylvania

April 10, 2015


Submitted November 17, 2014

Appeal from the Judgment of Sentence March 21, 2014, of the Court of Common Pleas, Montgomery County, Criminal Division, Nos. CP-46-CR-0000061-2012, CP-46-CR-0004340-2012, CP-46-CR-0007596-2011. Before FURBER, J.

Timothy P. Wile, Public Defender, Norristown, for appellant.

Robert M. Falin, Assistant District Attorney, Norristown, for Commonwealth, appellee.




Page 1247

Darnell Flowers appeals from the judgment of sentence entered following his convictions of three counts of retail theft, 18 Pa.C.S.A. § 3929(a)(1). His court-appointed counsel (" Counsel" ) has filed a motion seeking permission to withdraw and a brief in support thereof 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 (Pa. 2009). We deny counsel's request to withdraw and remand for counsel to take appropriate action in conformance with our decision.

We begin with a brief factual and procedural background. Between September 2011 and September 2012, the Commonwealth charged Flowers in three separate incidents with retail theft and other related charges. On January 28, 2013, Flowers entered an open guilty plea to three counts of retail theft. On March 21, 2014, the trial court sentenced Flowers to two consecutive sentences of eleven and a half to twenty-three months of imprisonment, to be followed by four years of probation. Flowers filed a timely post-sentence motion asking the trial court to reconsider his sentence, which the trial court denied. Counsel timely filed a notice of appeal. In response to the trial court's directive to file a statement of matters complained of on appeal, Counsel filed a statement of his intent to file an Anders brief, pursuant to Pa.R.A.P. 1925(c)(4),[1] and identified one

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issue that could arguably support an appeal: whether the aggregate sentence was unduly harsh and excessive, which Flowers also raised in his post-sentence motion. Concise Statement, 6/10/14. In response, the trial court authored an opinion discussing the issue Counsel identified and urged this Court to conclude that it did not amount to a " 'non-frivolous' claim for relief." Trial Court Opinion, 6/30/14, at 3. Counsel then filed his request to withdraw and Anders brief with this Court.

The request by appointed counsel to withdraw pursuant to Anders triggers specific requirements, certain of which apply to appointed counsel and others to the court to which appointed counsel makes his or her request for withdrawal. These requirements and the significant protection they provide to an Anders appellant arise because a criminal defendant has a constitutional right to a direct appeal and to counsel on that appeal. Commonwealth v. Woods, 2007 PA Super 364, 939 A.2d 896, 898 (Pa. Super. 2007). This Court has summarized these requirements as follows:

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.

Id. (citations omitted).

There are also requirements as to the precise content of an Anders brief:

[T]he Anders brief that accompanies court-appointed counsel's petition to withdraw ... 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.

If counsel has met these 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 whether the appeal is in fact wholly frivolous." Id. at 354 n.5.

Counsel has adequately satisfied the technical requirements of Anders and Santiago. He has filed a petition seeking to withdraw with this Court, in which he states his belief that after an examination of the record, the appeal is wholly frivolous. Attached to that petition is a copy of the letter he sent to Flowers, which indicates that he enclosed copies of his ...

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