J-S42020-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CHRISTOPHER EVANS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 161 MDA 2018

Appeal from the Judgment of Sentence September 7, 2016

In the Court of Common Pleas of Lackawanna County Criminal Division at 

No(s): CP-35-CR-0000494-2016

BEFORE: BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 28, 2018

Christopher Evans appeals from the judgment of sentence of 21 to 42

months of imprisonment, imposed on September 7, 2016, following a guilty 

plea to one count of Delivery of a Controlled Substance.1 In addition, 

appointed counsel, Kurt T. Lynott, Esq., seeks to withdraw his representation 

of Evans pursuant to Anders v. California, 386 U.S. 738 (1967). Because 

the Anders brief is deficient, we deny counsel’s petition to withdraw and direct 

counsel to file either a compliant Anders brief or an advocate’s brief.

We derive the following statement of facts and procedural background 

of this case from the trial court opinion. See Trial Ct. Op., 03/21/2018. In 

February 2016, the Olyphant Police Department received information from a 

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* Retired Senior Judge assigned to the Superior Court.

1 35 P.S. § 780-113(a)(30).
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confidential informant (C.I.) that Evans was selling Subutex, a narcotic used 

for opioid treatment. Following an investigation that included a controlled 

transaction in which Evans sold the narcotic to the C.I., police arrested Evans.

In May 2016, Evans pleaded guilty to the delivery charge. Prior to 

entering his plea, Evans executed a written plea colloquy, indicating that he 

was aware of the charge, the maximum penalty he was facing, and his 

satisfaction with counsel. In addition, the court conducted an oral colloquy to 

determine whether Evans was aware of the rights he was relinquishing, 

whether he was satisfied with counsel, and whether he admitted to facts 

supporting the crime. Thereafter, the court accepted his plea.

In September 2016, following a presentence investigation, the court 

imposed sentence as indicated, which fell within the mitigated range of the 

sentencing guidelines. Evans did not file a post sentence motion or a direct 

appeal.

In August 2017, Evans timely and pro se filed a petition pursuant to the 

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. In his petition, 

Evans claimed ineffective assistance of plea counsel on three, unique grounds: 

(1) Counsel unlawfully induced his plea, promising Evans that he 

would receive a county sentence; 

(2) Counsel failed to request a competency hearing or investigate 

Evans’ mental health; and 

(3) Counsel failed to file a post sentence motion or direct appeal 

to challenge:

(a) the validity of his plea, and 

(b) legal and discretionary aspects of his sentence. 
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See Evans’ PCRA Petition, 08/10/2017, at 3-4. The court appointed Attorney 

Lynott as PCRA counsel. In November 2017, Attorney Lynott filed a petition 

to withdraw and a no-merit letter.2 However, following an independent 

review, the court determined that Evans’ petition warranted relief “wherein 

the petitioner was denied an opportunity to file a direct appeal.” PCRA Ct. 

Order, 01/09/2018. Accordingly, the court denied counsel’s petition to 

withdraw and reinstated Evans’ right to appeal nunc pro tunc. Id.

Evans timely appealed and filed a court-ordered Pa.R.A.P. 1925(b) 

statement. The court issued a responsive opinion.

In this Court, Attorney Lynott has filed an Anders brief, asserting two 

issues that Evans might seek to raise: (1) whether plea counsel was ineffective 

for inducing Evans to plead guilty; and (2) whether plea counsel was 

ineffective for failing to request a competency hearing. See Lynott’s Anders

Br. at 4.

“When 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.” Commonwealth v. Goodwin, 928 A.2d 287, 290 

(Pa.Super. 2007) (en banc). Prior to withdrawing as counsel on direct appeal 

under Anders, counsel must file a brief that meets the requirements 

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2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); 

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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established by the Pennsylvania Supreme Court in Commonwealth v. 

Santiago, 978 A.2d 349 (Pa. 2009), namely:

(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.

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. Nischan, 

928 A.2d 349, 353 (Pa.Super. 2007), appeal denied, 594 Pa. 704, 

936 A.2d 40 (2007).

Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa.Super. 2014). 

If counsel does not fulfill the aforesaid technical requirements of 

Anders, this Court will deny the petition to withdraw and remand 

the case with appropriate instructions (e.g., directing counsel 

either to comply with Anders or file an advocate's brief on 

appellant's behalf). By contrast, if counsel’s petition and brief 

satisfy Anders, we will then undertake our own review of the 

appeal to determine if it is wholly frivolous. If the appeal is 

frivolous, we will grant the withdrawal petition and affirm the 

judgment of sentence. However, if there are non-frivolous issues, 

we will deny the petition and remand for the filing of an advocate's 

brief.
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Commonwealth v. Wrecks, 931 A.2d 717, 720–21 (Pa.Super. 2007) 

(citations omitted).

In the instant matter, Attorney Lynott has supplied Evans with a copy 

of his Anders brief and a letter explaining the rights enumerated in Nischan.

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However, Attorney Lynott’s Anders brief does not comply with the abovestated requirements. 

First, though there are references to certain facts relevant to Evans’ 

claims, the brief contains no general summary of facts. See Lynott’s Anders

Br. at 1. Further, there is not a single citation to the record. See generally 

id. Thus, it is not clear that counsel has adequately reviewed this matter. 

See, e.g., Commonwealth v. Goodenow, 741 A.2d 783, 786 (Pa.Super. 

1999) (recognizing counsel’s sparse recital of the procedural history in his 

Anders brief, devoid of references to the record and contextual relevance to 

appellant, did not meet the technical requirements of Anders or evidence 

counsel’s required review). 

Second, the analysis proceeds in neutral fashion, and counsel does not 

articulate why Evans’ claims are frivolous. See Lynott’s Anders Br. at 6-8. 

Counsel’s presentation may be a function of the authority cited in his 

statement of the standard and scope of review. There, counsel suggests that 

an Anders brief “should not resemble a ‘no-merit’ letter or amicus curiae 

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3 Though properly addressed to Evans, we note that counsel’s letter begins 

with the following salutation, “Dear Mr. Alvarado.” Lynott’s Petition to 

Withdraw, 05/10/2018, Letter Attachment. Evans has not filed a response to 

counsel’s Anders brief. 
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brief.” Id. at 1 (citing in support Commonwealth v. Miller, 715 A.2d 1203 

(Pa.Super. 1998)). This Court’s decision in Miller preceded by more than a 

decade our Supreme Court’s analysis in Santiago, which set forth “a 

significant adjustment in [its] decisional law concerning Anders.” Santiago, 

978 A.2d at 361 (modifying the briefing requirements set forth in 

Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981)). 

In light of our foregoing analysis, we conclude that counsel’s brief fails 

to meet the mandates of Anders, as further clarified in Santiago. 

Accordingly, we deny Attorney Lynott’s petition to withdraw without prejudice 

to re-file such a petition. 

We remand this case and direct counsel to file, within thirty days of the 

date of this memorandum, either an advocate’s brief or a proper Anders brief 

and petition to withdraw.4 Thereafter, the Commonwealth shall have thirty 

days to respond.

Petition to withdraw as counsel denied. Case remanded with 

instructions. Jurisdiction retained.

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4 Further, we note the following. In his PCRA petition, Evans asserted 

ineffective assistance of counsel for (1) improperly inducing his plea, (2) 

failing to request a competency hearing, and (3) failing to file a direct appeal 

challenging the validity of his plea and the legality and discretionary aspects 

of his sentence. The PCRA court granted relief on the final claim. See PCRA 

Ct. Order; see also Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013) 

(addressing the limited bases for pursuing claims of ineffective assistance of 

counsel on direct appeal).