Opinion
J-S79033-18 No. 1170 MDA 2018
02-12-2019
COMMONWEALTH OF PENNSYLVANIA v. JACKIE S. KAUFFMAN, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered May 11, 2018 in the Court of Common Pleas of Mifflin County
Criminal Division at No(s): CP-44-CR-0000653-2016 BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.:
Jackie S. Kauffman ("Kauffman") appeals from the judgment of sentence entered after a jury convicted her of endangering the welfare of children ("EWOC"). Additionally, counsel for Kauffman, Robert R. Ferguson, Esquire ("Attorney Ferguson"), has filed a Petition to Withdraw as counsel and a brief pursuant to Anders v. California , 386 U.S. 738 (1967), and Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009). As we conclude that Attorney Ferguson has failed to comply with the requirements of Santiago , we deny the Petition to Withdraw and remand for counsel to file either an Anders/Santiago brief that satisfies all of the requirements, or an advocate's brief on Kauffman's behalf.
Instead of filing the Petition to Withdraw and Anders Brief as separate documents, counsel filed a single document.
Briefly, Kauffman's conviction arises out of her failure to protect her minor daughter from being exposed to, and eventually assaulted by, a known sex offender, Kauffman's paramour. After a jury found Kauffman guilty of EWOC, the trial court sentenced her to serve one to two years in prison. Kauffman, through Attorney Ferguson, timely filed a Post-sentence Motion challenging the sufficiency and weight of the evidence, as well as the discretionary aspects of sentencing. The trial court denied the Post-sentence Motion by an Order entered on June 26, 2018.
Kauffman timely filed a counseled Notice of Appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of errors complained of on appeal. In the Concise Statement, Attorney Ferguson announced his intent to file an Anders brief, and identified that Kauffman wished to pursue her sufficiency of the evidence and excessiveness of sentencing challenges. The trial court filed a Pa.R.A.P. 1925(a) Opinion, determining that both of Kauffman's identified issues lacked merit. Thereafter, Attorney Ferguson filed the Petition to Withdraw/ Anders Brief. Kauffman did not file a pro se brief or respond to the Petition to Withdraw/ Anders Brief.
We must first address Attorney Ferguson's Petition to Withdraw before reaching the merits of the issues raised in the Anders Brief. See Commonwealth v. Goodwin , 928 A.2d 287, 290 (Pa. Super. 2007) (en banc) (stating that "[w]hen faced with a purported Anders brief, this Court may not review the merits of any possible underlying issues without first examining counsel's request to withdraw.").
Prior to withdrawing as counsel on a direct appeal under Anders , counsel must file a brief that meets the requirements established by our Supreme Court in Santiago. The brief 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 (emphasis added); see also id. at 360 (stating, "we hold that a discussion of counsel's reasons for believing that the client's appeal is frivolous is mandatory and must be included in counsel's brief.") (emphasis added). This Court has stated that the above-listed requirements are "stringent, and with good reason. A defendant has a constitutional right to a direct appeal, see Pa. Const. Art. I, § 9, and a constitutional right to counsel for [her] direct appeal." Commonwealth v. Orellana , 86 A.3d 877, 881 (Pa. Super. 2014) (some citations and brackets omitted).
The Santiago Court explained why it is important that counsel articulate his or her reasons for concluding that an appeal is frivolous as follows:
We are persuaded that requiring counsel to articulate the basis for his or her conclusion of frivolity will advance the twin functions counsel's Anders brief is to serve, i.e., it will assist the intermediate appellate courts in determining whether counsel has conducted a thorough and diligent review of the case to discover appealable issues and whether the appeal is indeed frivolous. ... [T]he task of articulating reasons can shed new light on what may at first appear to be an open-and-shut issue. It can also reveal to counsel previously unrecognized aspects of the record or the law and thereby provide a safeguard against a hastily-drawn or mistaken conclusion of frivolity.
Here, though Attorney Ferguson states in his Argument section that Kauffman wishes to raise a sufficiency challenge and excessiveness of sentence challenge, nowhere does he (1) state his reasons for determining that these claims are frivolous; or (2) refer to anything in the record that he believes arguably supports the appeal, in violation of Santiago. See Santiago , supra. Accordingly, we deny Attorney Ferguson's Petition to Withdraw without prejudice, and remand so that Attorney Ferguson may comply with Santiago , or file an advocate's brief.
Petition to withdraw denied. Case remanded with direction that counsel file either an Anders/Santiago brief or an advocate's brief within sixty days of the date of this Memorandum. Panel jurisdiction retained.
Judge Shogan joins the memorandum.
Judge Olson files a dissenting memorandum.
Santiago, 978 A.2d at 360-61 (internal citations omitted).