J. S 21 0 35 /1 8

NON

- PRECEDENTIAL DECISION

– SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

: JUSTIN SCOTT DIGNARD
, : No. 1629 W DA 20 17

: Appellant :

Appeal from the Judgment of Sentence
, August 9, 2016
, in the Court of Common Pleas of Venango County Criminal Division at No. CP

- 61

- CR

- 0000143

- 2016

BEFORE: OLSON
, J., MURRAY , J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 6, 2018

Appellant, Justin Scott Dignard
, appeals from the August 9, 2016 1

judgment of sentence followin g his conviction s for robbery

— threat of serious

bodily injury and robbery (felony 2). 2 Matthew C. Parson, Esq.

(“Attorney Parson”), has filed a n application to withdraw , alleging that the

1 Appellant’s trial counsel did not appeal the August 9, 2016 judgment of sentence. Appellant’s appeal rights were reinstated in a Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541

- 9546, proceeding. Appellant’s appellate counsel mistakenly stated that he appealed to this court from the order of October 2, 2017, which granted the PCRA petition. Appellant’s appeal properly lies from the judgment of sentence, dated August 9, 2016. T he caption originally stated that the appeal was from the PCRA order. We have amended the caption accordingly.

2 18 Pa.C.S.A. §§ 3701(a)(1)(ii) and 37 01(a)(1)( v ), respectively.J. S 21 0 35 /1 8

- 2

-

appeal is frivolous, accompanied by an Anders brief. 3 Upon review, we

deny counsel’s application to withdraw and remand for either a compliant

Anders / Santiago brief or an advocate’s brief.

The relevant factual background and procedural history as found by

the trial court is as follows:

The above

- captioned cases arise out of two armed robberies of businesses located in Oil City, Penns ylvania, occurring on December 30, 2011 and June 1, 2012, respectively. [Appellant] eluded authorities for a lengthy period of time, but was eventually arrested

. . . .
[Appellant] signed a plea agreement dated June 2, 2016, in which he pled guilty to Co unt 2, Robbery

Threat of Serious Bodily Injury (Felony 1) at CR No. 143

- 2016, and Count 1, Robbery (Felony 2) at CR No. 142

- 2016. The Commonwealth recommended [appellant] serve standard range sentences at both counts and that they be served concurrently.

Prior to sentencing, [appellant] underwent a pre

- sentence investigation and his prior record score was calculated as being a three (3). The guidelines called for a sentence of fifteen (15) to twenty

- one (21) months, and the statutory minimum and maximum sentences were sixty (60) to one hundred and twenty (120) months at Count 1, Felony 2 Robbery. The guidelines called for a sentence of forty

- two (42) to fifty

- four (54) months, and the statutory minimum a nd maximum sentences were one hundred and twenty (120) to two hundred and forty [ 240 ] months at Count 2, Felony 1 Robbery

- Threat of Serious Bodily Injury.

3 See Anders v. California , 386 U.S. 738 (1967), and Commonwealth v. Santiago , 978 A.2d 349 (Pa. 2009).J. S 21 0 35 /1 8

- 3

- On August 9, 2016, [appellant] was sentenced by this Court at CR No. 142

- 2016 on Count 1, Felony 2 R obbery as follows:

pay the costs of prosecution, all other costs, pay a fine $0 in order to facilitate restitution, make restitution payable to the Clerk of Court[s] of Venango County, in the sum of $900, for the use of Leroy and Elizabeth George, said re stitution shall be paid in ten (10) years and is a condition of sentence, and undergo an imprisonment in a STATE INSTITUTION OF THE DEPARTMENT OF CORRECTIONS for a minimum of which shall be twenty

- one (21) months, the maximum of which shall be ten (10) yea rs.

Judge Boyer’s August 9, 2016 Amended Sentence Order (emphasis in original). In the same sentence order, [appellant] was sentenced by this Court at CR No. 1 4 3

- 2016 on Count 2, Felony 1 Robbery

Threat of Serious Bodily Injury as follows:

pay the costs of prosecution, all other costs, pay a fine $0 in order to facilitate restitution, make restitution payable to the Clerk of Court[s] of Venango County, in the sum of $6,130, for the use of Thorne’s Market, 809 Grandview Road, Oil City, Pennsylvania, 16301 (Said Restitution shall be joint and several with codefendant, Adrian Dignard at C.R. No. 78

- 2016.) said restitution s hall be paid with [sic] ten (10) years and is a condition of sentence, and undergo an imprisonment in a STATE INSTITUTION OF THE DEPARTME NT OF CORRECTIONS for a minimum of which shall be forty

- two (42) months, the maximum of which shall be twenty (20) years.

Id. (emphasis in original). The Court stated that the sentences imposed at CR No. 142

- 2016 andJ. S 21 0 35 /1 8

- 4

- CR No. 143

- 2016 were to be served con currently. Id.

[Appellant] filed a timely notice of appeal, and [appellant] filed the instant Concise Statement o n November 17, 2017. [ 4 ]

Trial court opinion, 12/8/17 5 at 1

- 3.

Appellant raises the following issue for this court’s review: “Whether

the Sentencing Court erred as a matter of law or abused its discretion when

the Sentencing Court ordered a S entence to the maximum of the statute for

the sole basis of ensuring restitution was paid in full [?] ” ( Appellant ’s brief

at 5. )

On February 18, 2018, Attorney Parson filed in this court a motion to

withdraw as counsel
, because he found the appeal to be “ wholly frivolous
, ”

and an Anders brief

. ( Petition for leave to withdraw as counsel , 2/16/18

at 1, ¶ 4 (emphasis in original). )

A request by appointed counsel to withdraw pursuant to Anders and Santiago gives rise to certain requirements and obligations, for both appointed counsel and this Court. Commonwealth v. Flowers , 113 A.3d 1246, 1247

- 1248 (Pa.Super. 2015).

4 Appellant filed for reinstatement of his appeal rights due to ineffective assistance of counsel under the Post Conviction R elief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541

- 9546. On October 2, 2017, the trial court granted the PCRA petition and ordered Attorney Parson, appellant’s PCRA counsel, to file a direct appeal on behalf of appellant from the judgment of sentence. Attorney Par son filed the notice of appeal on October 26, 2017.

5 The trial court filed an opinion pursuant to Pa.R.A.P. 1925(a) on December 8, 2017.J. S 21 0 35 /1 8

- 5

- Th ese 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
, 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 additional points worthy of the Court’s attention.

Woods , 939 A.2d at 898 (citations omitted).

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

[T]he Anders brief that accompanies court

- appointed counsel’s petition toJ. S 21 0 35 /1 8

- 6

- withdraw

. . . must: (1) provide a summary of the procedural history and facts, with citations to the record; (2) refer to anything in the

r ecord 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 appeal is frivolous. Counsel should articulate the relevant facts of record, con trolling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.

Santiago , 978 A.2d at 361.

Id. at 1248. If this Court determines that appointed counsel has met these obligations, it is then our responsibility “t o make a full examination of the proceedings and make an independent judgment to decide whether the appeal is in fact wholly frivolous.” Id. at 1248. In so doing, we review not only the issues identified by appointed counsel in the Anders brief, but exam ine all of the proceedings to “make certain that appointed counsel has not overlooked the existence of potentially non

- frivolous issues.” Id.

Commonwealth v. Hankerson , 118 A.3d 415, 419

- 420 (Pa.Super. 2015).

Regarding the requirements of Anders , Attorney Parson has filed a

petition that avers that, after a conscientious examination of the record, he

finds the appeal to be wholly frivolous. He has also filed a brief which

attempts to set forth the issues that might arguably support the appeal.J. S 21 0 35 /1 8

- 7

-

However, while he identifies the issue in the statement of questions involve d

in the brief as “Whether the Sentencing Court erred as a matter of law or

abused its discretion when the Sentencing Court ordered a Sentence to the

maximum of the statute for the sole basis of ensuring restitution was paid in

full” ( A n ders brief at 5 ) , the corresponding heading in the argument section

of his brief states, “Whether the Sentencing Court erred as a matter of law

or abused its discretion when the Sentencing Court fail ed to run [appellant’s]

two Venango County sentences and the Clarion County sentence

concurrently.” ( Anders brief at 7. ) The body of the argument section of the

brief does address the issue contained in the statement of questions

involved, so the issue s et forth in the brief is in compliance with Anders . A

review of the record reveals that Attorney Parson complied with the

requirements of Anders concerning notification to appellant.

With respect to the requirements of Santiago
, Attorney Parson has

provided a summary of the procedural history and facts , although technically

he does not comply with this requirement, as there are no citations to the

record
, and he has referred to the trial court’s statement at sentencing that

the le ngth of sentence was because appellant also had to pay restitution.

However, Attorney Parson has failed to comply with the third and fourth

requirements of Santiago . Attorney Parson has not set forth in his brief the

conclusion that the appeal is frivolo us, and he has not stated his reasons for

concluding that the appeal is frivolous.J. S 21 0 35 /1 8

- 8

-

Due to Attorney Parson’s failure to comply with Santiago , we deny

Attorney Parson’s petition to withdraw as counsel. We remand this case with

instruction to counsel to fil e either a compliant Anders / Santiago brief or an

advocate ’s brief. Counsel is directed to comply with this directive within

30 days of the date of this memorandum. Appellant and the Commonwealth

may respond within 30 days of counsel’s filing of his brief

.
Application to withdraw as counsel denied. Case remanded.

Jurisdiction retained.