Opinion
August 4, 1983.
Attorneys — Court appointed counsel — Withdrawal — Standards.
1. Before court appointed counsel's request to withdraw on the ground the appeal is frivolous may be considered, counsel must: 1) notify the client of his request to withdraw, 2) furnish the client with a copy of his "Anders" brief, and 3) advise his client of his right to retain new counsel or raise any points he may deem worthy of consideration in a pro se brief, and, where the record fails to indicate that any of these requirements have been met, counsel's petition to withdraw will be denied without prejudice to his right to resubmit after he has fulfilled the requirements or in the alternative, to submit an advocate's brief. [101]
Submitted on briefs to Judges ROGERS, CRAIG and MacPHAIL, sitting as a panel of three.
Original jurisdiction, No. 417 Misc. Docket No. 3, in the case of Wyman Scott v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole.
Petition to withdraw appearance as counsel filed with Commonwealth Court of Pennsylvania. Held: Denied without prejudice.
Timothy P. Wile, Assistant Public Defender, for petitioner.
Robert Greevy, Chief Counsel, for respondents.
Counsel appointed to represent the Petitioner in this case has filed a petition for leave of court to withdraw his appearance because counsel has determined that Petitioner's appeal is frivolous. Counsel has furnished us with an "Anders" brief.
Wyman Scott.
In Anders v. California, 386 U.S. 738 (1967), it was held that if counsel, after a conscientious examination of the case, determines that a case is wholly frivolous, it is counsel's duty to advise the court and request permission to withdraw. This Court recently held that where counsel determined that a late appeal would constitute a frivolous law suit, counsel's refusal to represent a client was not only justified but mandated by the canons of professional responsibility. Albright v. Department of Public Welfare, 71 Pa. Commw. 114, 454 A.2d 1149 (1983).
In Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981) our Supreme Court mandated that before a request to withdraw may be considered, counsel must: 1) notify the client of his request to withdraw, 2) furnish the client with a copy of his Anders brief, and 3) advise his client of his right to retain new counsel or raise any points he may deem worthy of consideration in a pro se brief.
The record before us does not indicate that a copy of counsel's petition to withdraw was served upon his client nor is there any evidence that he advised his client of the right to retain new counsel or raise any point the client may deem worthy in a pro se brief.
Under these circumstances, we must deny counsel's petition without prejudice to his right to resubmit his petition after he has complied with the requirements of McClendon or, in the alternative, counsel may submit an advocate's brief. Commonwealth v. Walker, ___ Pa. Superior Ct. ___, 457 A.2d 571 (1983).
PER CURIAM ORDER
The petition of Timothy P. Wile, Esquire to withdraw as counsel is denied without prejudice to resubmit in a manner consistent with the foregoing opinion. Jurisdiction retained.