J-S41034-19

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.

DENNIS L. SHIRES, II,

Appellant

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IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 233 MDA 2019

Appeal from the Judgment of Sentence Entered July 6, 2017

in the Court of Common Pleas of Lycoming County

Criminal Division at No(s): CP-41-CR-0002155-1998

BEFORE: LAZARUS, J., MURRAY, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 24, 2019

Dennis L. Shires, II (Appellant) appeals nunc pro tunc from his July 6, 

2017 judgment of sentence, which the trial court imposed after revoking 

Appellant’s probation. Appellant’s counsel has filed a petition to withdraw 

and a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and 

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). Upon review, we 

deny counsel’s petition without prejudice and remand for further proceedings 

consistent with this memorandum.

In 1998, Appellant entered a video store, wearing a ski mask and 

brandishing a knife. He took the 17-year-old female clerk into the adult 

video room, forced her to perform various sexual acts. Despite Appellant’s

attempt to hide his face in the ski mask, the clerk was able to discern his 

identity because he was a regular customer at the store. 
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At Appellant’s non-jury trial in 1999, he and the Commonwealth 

stipulated to the entry of evidence in lieu of testimony. The trial court 

convicted him of rape, involuntary deviate sexual intercourse (IDSI), 

aggravated indecent assault, sexual assault, indecent assault, and simple 

assault, and sentenced him to 15 to 30 years of imprisonment. Appellant 

filed an appeal, and, based upon the admission of testimony through 

stipulation that should have been inadmissible due to privilege, this Court 

vacated his judgment of sentence and remanded for a new trial. 

Commonwealth v. Shires, 777 A.2d 509 (Pa. Super. 2001).

On remand, Appellant pleaded guilty to rape, IDSI, and aggravated 

indecent assault. On October 23, 2002, in accordance with the plea 

agreement, he was sentenced to 5 1⁄2 to 11 years of incarceration for rape, 

followed by 3 1⁄2 to 7 years of incarceration for aggravated indecent assault, 

followed by “supervision by the State Board of Probation and Parole 

[(Board)]” for a period of 20 years for IDSI. Order, 10/29/2002, at 1-2. 

Appellant received time credit dating back to his initial incarceration date, 

which was November 22, 1998. Id. at 2. The trial court made Appellant’s 

payment of costs, fines, and restitution “a condition of intermediate 

punishment, probation[,] or parole supervision.” Id. The order does not 

reference any other conditions of Appellant’s probation. No appeal was filed.

At some point that is not clear from the certified record, Appellant 

apparently was paroled, completed his parole, and began serving his 
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probationary tail. Nothing further appears on the docket until December 28, 

2016, when an order dated December 15, 2016, was entered. The order 

stated that “as additional conditions of [Appellant’s] special probation, 

[Appellant] must comply with the conditions governing probation and parole, 

the standard special conditions for sex offenders, and any supplemental 

standard special conditions of supervision.” Order, 12/28/2016, at 1. A 

notation on the order indicates that it was served on the Public Defenders’ 

office, and not Appellant directly. No transcript or pleading corresponding to 

this order appears in the record, making it wholly unclear why it was 

entered. 

On March 9, 2017, an order was entered on the docket indicating that 

a preliminary special probation violation hearing was held on March 2, 2017, 

after which the trial court found probable cause to believe Appellant violated 

the conditions of his special probation. Order, 3/9/2017, at 1. Neither the 

precipitating petition nor a transcript of this hearing appears in the certified 

record.

On April 19, 2017, the trial court conducted a special probation 

violation hearing, and found that the allegations in the Commonwealth’s 

petition occurred as alleged based upon a counseled admission by Appellant. 

Order, 4/25/2017, at 1. While Appellant admitted that he had engaged in 

the acts alleged by the Commonwealth, he denied that the acts violated any 
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terms of his probation.1 N.T., 4/19/2017, at 5-6, 9. According to Appellant, 

the acts may have violated terms of his parole, but after his parole expired 

and his consecutive probationary sentence began, he was no longer subject 

to the special conditions. Id. The trial court rejected Appellant’s argument, 

determining that the special “conditions survived the change from parole 

status to probation status.” Order, 4/25/2017, at 1. The trial court revoked 

Appellant’s probation on the IDSI conviction and continued the matter for 

sentencing. The trial court noted that in making its determination, it did not 

consider the December 15, 2016 order because there was no indication that 

Appellant was ever served with or otherwise received notice of the order.

On July 6, 2017, Appellant was sentenced to three to ten years of 

incarceration, to be followed by a period of special probation of ten years. 

Appellant, through his counsel, timely filed a notice of appeal from his 

judgment of sentence. However, on February 12, 2018, this Court 

dismissed his appeal after his counsel failed to file a brief. Appellant timely 

filed pro se a petition for relief pursuant to the Post Conviction Relief Act, 42 

Pa.C.S. §§ 9541-9546, which sought, inter alia, to reinstate his direct appeal 

rights based upon counsel’s failure to file a brief. Tricia Hoover Jasper, 

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1

It is not clear from the record what the allegations were. As noted infra, 

the petition does not appear in the certified record. The only specific 

allegations mentioned during the hearing were that Appellant had viewed 

pornography on his phone and was unsuccessfully discharged from sex 

offender treatment. Id. at 6, 14-15.
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Esquire was appointed as counsel, the petition was amended, and on 

January 8, 2019, the PCRA court reinstated Appellant’s direct appeal rights 

nunc pro tunc. This appeal timely followed. 

In lieu of a concise statement pursuant to Pa.R.A.P. 1925(b), Attorney 

Hoover Jasper filed a statement of intent to file an Anders brief pursuant to 

Pa.R.A.P. 1925(c)(4). Instead of filing an opinion pursuant to Pa.R.A.P. 

1925(a), the trial court indicated that it would be relying upon the trial 

court’s Rule 1925(a) opinion that was filed on September 25, 2017, before 

this Court dismissed Appellant’s appeal of his judgment of sentence 

stemming from his probation violation. 

In this Court, Attorney Hoover Jasper filed both an Anders brief and a 

petition to withdraw as counsel. Appellant filed a response pro se. 

Accordingly, the following principles guide our review of this matter.

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 any 

additional points worthy of this Court’s attention.

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 
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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 nonfrivolous issues, we will deny the petition and remand for the 

filing of an advocate’s brief. 

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

(citations omitted). Our Supreme Court has clarified portions of the Anders

procedure:

[I]n the Anders brief that accompanies court-appointed 

counsel’s petition to withdraw, counsel 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.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009) (emphasis 

added). 

Counsel has failed to satisfy these requirements. First, counsel’s 

Anders brief does not contain any citations to the record, save for one. Nor 

does it refer to anything in the record that counsel believes arguably 

supports the appeal. Although counsel states that her conclusion that this 

appeal is frivolous followed an examination of the record, Appellant’s file, 

and applicable law, see Petition to Withdraw Appearance, 3/26/2019, at ¶ 4, 

our review of the record reveals the absence of several crucial documents. 
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The certified record does not contain the Commonwealth’s petition to 

revoke Appellant’s probation, any of the orders or documents listing 

Appellant’s conditions of parole and/or probation, and the transcript from 

Appellant’s sentencing hearing after his guilty plea.

2

 Counsel identifies the 

issue of arguable merit as “whether the court erred in finding Appellant 

violated his consecutive probation when the violations involved violations of 

the special conditions of his now expired parole sentence.” Anders Brief at 

9 (capitalization altered). Despite identifying the issue as directly involving 

the conditions of his parole and/or probation, counsel did not ensure that the 

conditions were included in the certified record, let alone discuss the 

conditions in any detail. The September 25, 2017 Rule 1925(a) opinion 

refers to conditions signed on February 9, 2010, May 20, 2016, and May 31, 

2016. These do not appear in the record, and counsel does not discuss 

them. She vaguely refers to “special conditions” signed by Appellant without 

ensuring the conditions were included in the record or even identifying the 

date Appellant purportedly signed the conditions. Anders Brief at 9. 

Without the conditions, “[c]ounsel could not have fulfilled [her] duty to 

review the record for any non-frivolous issues.” Commonwealth v. 

Flowers, 113 A.3d 1246, 1250 (Pa. Super. 2015). Additionally, counsel’s 

____________________________________________

2 Appellant’s pro se PCRA petition has some attachments that may be 

relevant. However, counsel makes no effort to discuss them or explain why 

they were never entered on the docket in the first place.
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failure to ensure the conditions were included in the record prevents this 

Court from satisfying its obligations under Anders and its progeny. See 

Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en 

banc) (holding that we must first consider the issue raised by counsel, and 

then have the responsibility “to conduct a simple review of the record to 

ascertain if there appear on its face to be arguably meritorious issues that

counsel, intentionally or not, missed or misstated”); Commonwealth v. 

Bennett, 124 A.3d 327, 333 (Pa. Super. 2015) (“[W]hen an appellant, 

either acting pro se or through private counsel, files a response to the 

Anders brief, our independent review is limited to those issues raised in the 

Anders brief. We then review the subsequent pro se or counseled filing as 

we do any advocate’s brief.”); Commonwealth v. Curry, 931 A.2d 700, 

702 (Pa. Super. 2007) (“Failure to supply a complete record to this Court for 

independent review will render a request to withdraw technically 

inadequate.”); Commonwealth v. Vilsaint, 893 A.2d 753, 757 (Pa. Super. 

2006) (holding that counsel has a duty to client in Anders case to ensure 

we have received the entire record).

Furthermore, in the Anders brief, counsel briefly refers to Vilsaint 

and Commonwealth v. McGregor, 912 A.2d 315 (Pa. Super. 2006) as the 

cases relied upon by Appellant. Although it is counsel’s responsibility to 

“articulate the relevant facts of record, controlling case law, and/or statutes 
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on point that have led to the conclusion that the appeal is frivolous,” counsel 

simply concludes that 

Appellant’s reliance upon the abovementioned cases is flawed, 

because of the facts of this case. There was a court order 

imposing the special conditions and his probation officer testified 

unambiguously that Appellant “would have known a hundred 

percent” what his conditions were. Therefore, this issue has no 

merit and is frivolous.

Anders Brief at 10-11. Not only did counsel fail to cite to or set forth the 

conditions of Appellant’s probation as discussed above, counsel’s conclusory 

statement falls short of being “a discussion of counsel’s reasons for believing 

that the client’s appeal is frivolous” as required by Santiago. 978 A.2d at 

360. Once counsel has obtained the conditions, we expect counsel to 

explain specifically why counsel believes Vilsaint and McGregor merit 

Appellant no relief. Furthermore, counsel must analyze Appellant’s claim 

under all controlling case law and not just the cases to which Appellant cites. 

Accordingly, we deny counsel’s petition to withdraw and remand this 

case for further proceedings consistent with this memorandum. Upon 

remand, counsel must obtain the Commonwealth’s petition for violation of 

probation and any pertinent documents or transcripts relating to the 

conditions of Appellant’s parole and/or probation, and ensure their inclusion 

in the certified record. Flowers, 113 A.3d at 1251. After review of the 

entire record, counsel shall file either an advocate’s brief or a new petition to 

withdraw and Anders brief that fully comply with the requirements detailed 

above. 
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Motion for leave to withdraw denied. Case remanded with 

instructions. Panel jurisdiction retained.