J-A10024-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ARIESET GALARZA-RUIZ

Appellant No. 1857 MDA 2014

Appeal from the Judgment of Sentence September 30, 2014

In the Court of Common Pleas of Lancaster County

Criminal Division at No(s): CP-36-CR-0000864-2014

 CP-36-CR-0000921-2014

 CP-36-CR-0000867-2014

 CP-36-CR-0000925-2014

 CP-36-CR-0000926-2014

 CP-36-CR-0000927-2014

 CP-36-CR-0000929-2014

 CP-36-CR-0000933-2014

BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY MUNDY, J.: FILED JULY 08, 2015

Appellant, Arieset Galarza-Ruiz, appeals from the September 30, 2014 

judgment of sentence, imposed following Appellant’s guilty plea to ten 

counts of robbery, five counts of criminal conspiracy, and one count of 

burglary.1 After careful review, we remand and direct counsel to file a 

proper advocate’s brief or file a petition to withdraw and accompanying brief 

____________________________________________

1 18 Pa.C.S.A. §§ 3701 (a)(1)(ii), 903, and 3502(a)(2), respectively.
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in accordance with Anders v. California, 386 U.S. 738 (1967) and its 

progeny. 

We summarize the relevant procedural background of this case as 

follows. On September 17, 2014, Appellant pled guilty to the 

aforementioned crimes.2 At the guilty plea hearing, Appellant was 

represented by Christopher Lyden, Esquire (Attorney Lyden), whom the trial 

court had appointed to represent Appellant “in all proceedings before th[e 

trial] court and before any appellate court.” Trial Court Order, 1/31/14.

On September 30, 2014, the trial court sentenced Appellant, and on 

October 9, 2014, Appellant filed a pro se motion to modify his sentence.3 

On October 16, 2014, the trial court ordered Attorney Lyden to file an 

amended motion to modify sentence on Appellant’s behalf within 20 days. 

____________________________________________

2 Specifically, Appellant pled guilty to one count of robbery at docket number 

CP-36-CR-0000864-2014; four counts of robbery and two counts of 

conspiracy at docket number CP-36-CR-0000867-2014; one count of 

robbery at docket number CP-36-CR-0000921-2014; one count of robbery 

and one count of conspiracy at docket number CP-36-CR-0000925-2014; 

one count of burglary at CP-36-CR-0000926-2014; one count of robbery and 

one count of conspiracy at docket number CP-36-CR-0000927-2014; one 

count of robbery at docket number CP-36-CR-000929-2014; and one count 

of robbery and one count of conspiracy at docket number CP-36-CR0000933-2014.

3

“We have held that a criminal defendant’s pro se actions have no legal 

effect while he or she remains represented by counsel.” Commonwealth v. 

Hall, 476 A.2d 7, 9-10 (Pa. Super. 1984); see also Commonwealth v. 

Nischan, 928 A.2d 349, 355 (Pa. Super. 2007) (noting that a defendant’s 

pro se filings while represented by counsel are legal nullities), appeal denied, 

936 A.2d 40 (Pa. 2007).
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Trial Court Order, 10/16/14. On October 22, 2014, counsel complied and 

filed an amended post-sentence motion, and the trial court denied said 

motion on October 28, 2014.4 

On November 4, 2014, Appellant filed a timely counseled notice of 

appeal.5 Pursuant to Pennsylvania Rule of Appellate Procedure 1925, 

Appellant filed a statement of matters complained of on appeal on November 

13, 2014, and the trial court issued its Rule 1925(a) opinion on November 

25, 2014. The Rule 1925 statement filed by counsel asserts the following.

Appellant entered an invalid plea, because 

counsel “gave [him] the understanding” that he 

would receive a lesser sentence. Present counsel 

concludes that [A]ppellant’s claim is not reviewable 

on direct appeal and concludes that there are no 

non-frivolous claims to assert.

Appellant’s Statement of Matters Complained of on Appeal, 11/13/14.

In the brief filed on Appellant’s behalf, Attorney Lyden advances the 

following issue for our review.

Is the direct appeal frivolous where the only claim 

alleges plea counsel provided ineffective assistance 

by giving Appellant the “understanding” that he 

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4 We deem the trial court’s October 16, 2014 order to be equivalent to a 

grant of leave to file post-sentence motions nunc-pro-tunc. Accordingly, we 

deem the October 22, 2014 post-sentence motion to be timely.

5 We note that Appellant’s notice of appeal purports to appeal from the 

October 28, 2014 order denying his post-sentence motion. However, a 

direct appeal in a criminal case can only lie from the judgment of sentence. 

Commonwealth v. Kuykendall, 2 A.3d 559, 560 n.1 (Pa. Super. 2010) 

(citation omitted).
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would receive a more lenient sentence than the court 

ultimately imposed?

Appellant’s Brief at 4.6 Further, Attorney Lyden “requests this Court grant 

the motion to withdraw.” Id. at 8. However, Attorney Lyden did not file a 

motion to withdraw for this Court’s consideration. 

In Anders, the United States Supreme Court discussed the obligation 

of appointed counsel to an indigent client during direct appeal with respect 

to crafting a balance between counsel’s role as advocate and counsel’s 

conclusion that any issue raised on direct appeal would be wholly frivolous.

The constitutional requirement of substantial 

equality and fair process can only be attained where 

counsel acts in the role of an active advocate [o]n 

behalf of his client, as opposed to that of amicus 

curiae. The no-merit letter and the procedure it 

triggers does not reach that dignity. Counsel should, 

and can with honor and without conflict, be of more 

assistance to his client and to the court. His role as 

an advocate requires that he support his client’s 

appeal to the best of his ability. Of course, if counsel 

finds his case to be wholly frivolous, after a 

conscientious examination of it, he should so advise 

the court and request permission to withdraw. 

Anders, supra at 745. In Commonwealth v. Santiago, 978 A.2d 349 

(Pa. 2009), our Supreme Court delineated the requirements of an Anders 

brief which accompanies appointed-counsel’s request to withdraw. 

[W]e hold that in the Anders brief that 

accompanies court-appointed counsel’s petition to 

withdraw, counsel must: (1) provide a summary of 

____________________________________________

6 The Commonwealth elected not to file a brief in this case. 
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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.

Id. at 361. 

Pursuant to Commonwealth v. Millisock, 873 A.2d 748 (Pa. Super. 

2005), and its progeny, counsel seeking to withdraw on direct appeal must 

also meet the following obligations to his or her client.

Counsel also must provide a copy of the Anders

brief to his client. Attending the brief must be a 

letter that advises the client of his right to: (1) 

retain new counsel to pursue the appeal; (2) 

proceed pro se on appeal; or (3) raise any points 

that the appellant deems worthy of the court[’]s 

attention in addition to the points raised by counsel 

in the Anders brief. 

Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014) 

(internal quotation marks and citation omitted). “Once counsel has satisfied 

the above requirements, it is then this Court’s duty to conduct its own 

review of the trial court’s proceedings and render an independent judgment 

as to whether the appeal is, in fact, wholly frivolous.” Commonwealth v. 

Goodwin, 928 A.2d 287, 291 (Pa. Super. 2007) (en banc), quoting

Commonwealth v. Wright, 846 A.2d 730, 736 (Pa. Super. 2004).
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Instantly, we conclude Attorney Lyden’s representation falls short of 

that of an active advocate, and further, that he has not complied with the 

mandates of Santiago and Millisock. We reproduce Appellant’s argument 

in its entirety.

Appellant’s claim implicated the effectiveness 

of prior counsel. Pursuant to Commonwealth v. 

Grant, 813 A.2d 726 ([Pa.] 2002), claims of 

ineffective assistance of counsel must first be raised 

in the lower court by filing a petition for relief under 

the Post Conviction Relief Act. 

Also, present counsel has reviewed the notes 

of testimony from the guilty plea and sentencing 

hearing. The record indicates that prior counsel[7]

did not object during either proceeding. Therefore, 

to the extent there is a potential challenge to the incourt plea and sentencing hearings, such a claim 

would have to first be raised by claiming prior 

counsel failed to timely object. Therefore, pursuant 

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7 Despite Attorney Lyden’s references to the actions of “prior counsel,” the 

certified record reveals he was appointed to represent Appellant throughout 

the proceedings and in fact did so before the trial court. We also note while 

Attorney Lyden references his review of the notes of testimony from both 

the plea and sentencing proceedings, only the former transcript is contained 

within the certified record. Therefore, this Court would be unable to review 

any potential challenge to the sentencing proceedings. See 

Commonwealth v. Spotti, 94 A.3d 367, 381-382 (Pa. Super. 2014) (en 

banc) (noting that Appellant bears the burden of ensuring the certified

record is complete and concluding that this Court is precluded from 

reviewing that which an appellant has failed to include in the certified 

record), appeal granted, 107 A.3d 748 (Pa. 2015); see also 

Commonwealth v. Vilsaint, 883 A.2d 753, 758 (Pa. Super. 2006) 

(discussing counsel’s stewardship and noting, “’[g]iven that this is a direct 

appeal, and that counsel has filed an Anders brief, it would be prudent if not 

mandatory for counsel to have ordered all the notes of testimony[]”).
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to Grant, a claim challenging inadequacies of the incourt hearing must first be raised in the lower court.

Appellant’s Brief at 7.8 Reading counsel’s stated issue on appeal together 

with the argument section of the brief, counsel argues only that the sole 

claim on appeal is frivolous because it involves the effectiveness of counsel 

and such claims are not cognizable on direct appeal. See id. at 4, 7. With 

respect to the technical requirements of Santiago, counsel has failed to 

substantially comply with any of its mandates. First, in counsel’s statement 

of the case, he provides a summary of the procedural history; however, 

counsel fails to include a single citation to the record. Further, our review of 

the record reveals that counsel’s summary is inaccurate and incomplete. 

See, e.g., Appellant’s Brief at 5 (“[t]he charges included seven counts of 

robbery and one count of burglary[]”). Counsel does not refer to anything in 

the record arguably supporting the appeal, nor does counsel set forth his 

conclusion in the brief that the appeal is frivolous, excepting the reference in 

the question presented. In counsel’s argument, he fails to articulate the 

relevant facts of record that led to the conclusion that the appeal is frivolous. 

See Santiago, supra. Further, Attorney Lyden has not complied with the 

notification requirements of Millisock. Accordingly, because Appellant was 

not advised in accordance with Millisock, he lacked awareness of his 

____________________________________________

8 We note Appellant’s argument section is identical to his summary of the 

argument section contained in his brief. See Appellant’s Brief at 6. 
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opportunity to retain new counsel, proceed pro se, or raise any additional 

points for this Court’s consideration. See Orellana, supra at 880. 

Counsel’s deficient performance in advocating on behalf of his client, or, 

alternatively, in informing his client and this Court as to why the appeal is 

wholly frivolous as our case law requires, necessitates that this case be 

remanded. 

Based on the foregoing, we remand for counsel to either file an 

advocate’s brief or a proper Anders brief and petition to withdraw that 

meets the requirements pursuant to Anders and Santiago within 21 days 

of the date of this decision. If counsel elects to file a petition to withdraw, 

he must also comply with the notice requirements of Millisock, and file 

proof thereof with this Court. Appellant will have 21 days from the filing of 

the petition to withdraw to file a pro se response, if he so chooses. We 

remind counsel on remand “that the right to representation on direct appeal 

is not satisfied merely by addressing those issues that the unschooled client 

wishes to advance.”9 Orellana, supra at 882 (emphasis in original). 

Moreover, “[t]he universe of potential claims is not limited to those claims 

____________________________________________

9 Attorney Lyden appears to indicate, in the 1925 statement and brief he 

filed on Appellant’s behalf, that he was raising the issue precisely as phrased 

by Appellant. See Appellant’s Statement of Matters Complained of on 

Appeal, 11/13/14; Appellant’s Brief at 4. Without complying with the 

requirements of Santiago, this Court is unable to determine whether 

counsel considered other potentially meritorious issues on appeal or limited 

his review only to the issue advanced by Appellant. 
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that [the] client believes this court should consider.” Id. (citation and 

emphasis omitted). 

Case remanded. Jurisdiction retained.