Com. v. Nischan

• Decision Date: 05 July 2007
• Docket Number: No. 821 MDA 2006.,821 MDA 2006.
• Citation: 928 A.2d 349
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Nathan NISCHAN, Appellant.
• Court: Pennsylvania Superior Court

928 A.2d 349

COMMONWEALTH of Pennsylvania, Appellee v. Nathan NISCHAN, Appellant.

No. 821 MDA 2006.

Superior Court of Pennsylvania.

Submitted August 28, 2006.

Filed July 5, 2007.

Nathan Nischan, appellant, Pro Se.

Douglas J. Waltman, Asst. Dist. Atty., for Com., appellee.

BEFORE: FORD ELLIOTT, P.J., McCAFFERY AND COLVILLE^*, JJ.

Introduction

OPINION BY COLVILLE, J.:

¶ 1 This case is a direct appeal from judgment of sentence. Appellant's attorney has filed a petition to withdraw as counsel, alleging that the appeal is frivolous. Counsel has also filed a brief pursuant to Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), presenting issues that might arguably support the appeal. Those issues are: (1) whether the court erred by imposing a mandatory minimum sentence of ten years pursuant to 42 Pa.C.S.A. § 9714(a) (second strike); and (2) whether the sentencing court erred by imposing a manifestly excessive and unreasonable sentence.

¶ 2 Appellant has filed a pro se brief in which he raises points supporting the two sentencing issues which counsel raised in the Anders brief. Additionally, Appellant's pro se brief adds new issues not mentioned by Anders counsel, namely: (1) whether Appellant's guilty plea was knowing, voluntary and intelligent; (2) whether the court lacked subject matter jurisdiction to prosecute him because it was unconstitutional to begin his prosecution by criminal information rather than by grand jury indictment; and (3) whether his trial and appellate counsel were ineffective for various reasons. We grant counsel's request to withdraw and we affirm the judgment of sentence.

Facts

¶ 3 Appellant pled guilty to burglary. The crime occurred in a home while a person was present, making the offense a crime of violence under 42 Pa.C.S.A. § 9714(g). In an earlier case, Appellant was convicted of a burglary that also qualified as a crime of violence. As such, the trial court in the present case sentenced him under 42 Pa.C.S.A. § 9714(a) (sentences for second and subsequent offenses), imposing a mandatory minimum term of not less than ten nor more than twenty years for the subject burglary.

¶ 4 Appellant filed a pro se post-sentence motion which, while inartful, seemed to ask for withdrawal of his plea and for sentence modification. At that time, Appellant was represented by counsel, specifically the Berks County Public Defender's Office. The court did not address the merits of the motion but, rather, denied it on the grounds that Appellant did not have a right to proceed in a hybrid fashion, i.e., simultaneously pro se and by counsel. Appellant then appealed the judgment of sentence.

Anders v. California

¶ 5 Anders v. California, 386 U.S. at 744, 87 S.Ct. 1396, sets forth three general requirements an attorney must meet when seeking to withdraw from representation on direct appeal. The best way to appreciate these requirements is to keep in mind that they are designed to accomplish the purpose of Anders, which is to preserve a criminal defendant's issues for appellate review. Commonwealth v. Flores, 909 A.2d 387, 390 (Pa.Super.2006). Phrased another way, Anders seeks to afford a criminal defendant the constitutional right to a direct appeal and the constitutional right to effective counsel, at least to the extent that counsel must competently evaluate the case and preserve claims for appellate scrutiny. Flores, 909 A.2d at 390; see U.S. CONST. amend. VI (right to counsel); PA. CONST. art. I, § 9 (right to counsel); PA. CONST. art. V, § 9 (right to direct appeal). These goals are fulfilled by compliance with the Anders requirements.

¶ 6 The first of those requirements is that counsel file with this Court a petition for leave to withdraw averring that, after making a conscientious examination of the record, counsel finds the appeal to be wholly frivolous. Flores, 909 A.2d at 389. The "conscientious examination" aspect of this requirement ensures that counsel carefully assesses the entire case for any available claims. Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185, 1188 (1981). In short, this mandate guarantees the appellant effective representation by counsel in the course of evaluating the appeal.

¶ 7 The second requirement is that counsel must file what is known as an Anders brief distinct from the petition to withdraw. Flores, 909 A.2d at 389; Commonwealth v. Smith, 700 A.2d 1301, 1303 n. 7 (Pa.Super.1997). Often, there is confusion about what such a brief must contain. In a proper Anders brief, counsel sets forth the issues that the appellant wants to pursue as well as any other claims that might be necessary for the effective appellate presentation of those issues. Smith, 700 A.2d at 1304. Implicit in this requirement is counsel's obligation to consult with the appellant to identify what the appellant's desired claims are. See Commonwealth v. Bath, 907 A.2d 619, 623 (Pa.Super.2006) (discussing counsel's duty to consult with a criminal defendant about an appeal).

¶ 8 We recognize that, by the briefing stage, Anders counsel honestly has determined that all issues for the appeal are frivolous. See Commonwealth v. Thomas, 354 Pa.Super. 87, 511 A.2d 200, 203 (1986). As such, we understand that counsel will be unable to develop an advocate's argument for the issues which the appellant seeks to raise. However, the inability to make a non-frivolous argument does not prevent a skilled attorney from articulating the appellant's desired issues in a manner legally sufficient to identify those issues for appellate review. Simply put, the appellant needs a lawyer to explain those issues in an appellate brief in a way that will conform to rules and law so that we can review them. Consequently, what counsel must do in an Anders brief is: (1) set forth in a neutral fashion the issues that the appellant wants to raise; (2) cite for this Court relevant legal authorities such as leading cases, statutes, and/or rules that deal with those issues; (3) make reference to the appropriate portions of the record so that this Court can locate the facts pertinent to the claims; and (4) aver that, after a thorough review of the record, the appeal is frivolous. Smith, 700 A.2d at 1304, 1305.

¶ 9 Although Anders counsel has determined that the issues and the appeal in general not only lack merit but are, indeed, frivolous, counsel must not explain why the claims are frivolous and must not develop arguments against the appellant's interests. Smith, 700 A.2d at 1303. Rather, counsel is merely to state the conclusion that the appeal is frivolous. Id. at 1304, 1305. By proceeding in this fashion, Anders counsel does not advance a position adverse to the appellant. Smith, 700 A.2d at 1303-05.

¶ 10 Additionally, while counsel's finding of frivolousness is subject to our review, the Anders brief, as well as the Anders petition, gives this Court and the appellant an assurance that an officer of the court — a trained attorney — has applied a lawyer's learning and expertise when examining the case on the appellant's behalf. Smith, 700 A.2d at 1304. The Anders protocol thereby affords defendants their constitutional right to a direct appeal and to counsel on that appeal. Smith, 700 A.2d at 1304, 1305. The appellant's issues are adequately raised; counsel then asks to withdraw.

¶ 11 Counsel's third obligation under Anders is to furnish a copy of the brief to the appellant, advising him 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. Flores, 909 A.2d at 389. This last option (i.e., to raise additional points) means that the appellant, although still represented by Anders counsel, may file a brief with this Court. Commonwealth v. Baney, 860 A.2d 127, 129, 130 (Pa.Super.2004).

¶ 12 This possibility raises a curious matter. Specifically, when examining most non-Anders cases, this Court will not read pro se briefs filed by counseled appellants. Commonwealth v. Ellis, 534 Pa. 176, 626 A.2d 1137, 1141 (1993); Pa.R.A.P. 3304. However, Anders specifically contemplates that, after counsel files the Anders brief, an appellant may file a pro se brief. Anders, 386 U.S. at 744, 87 S.Ct. 1396; Flores, 909 A.2d at 389. Indeed, as we have just noted, part of counsel's duty under Anders is to advise the appellant of the right to raise points in addition to those in counsel's Anders brief. Flores, 909 A.2d at 389. Thus, when conducting an Anders review, this Court will consider not only the brief filed by counsel but also any pro se appellate brief. Baney, 860 A.2d at 129, 130.

¶ 13 If this Court receives a petition to withdraw and a brief, both submitted in accord with Anders, and if we are satisfied that counsel has complied with the three technical Anders requirements, we will then undertake our own independent examination of the issues raised in the Anders brief and in any pro se brief to determine whether we agree with counsel's assessment that the appeal before us is frivolous. Flores, 909 A.2d at 389. If, after our review, we determine that the appeal is frivolous, then we will grant counsel's petition to withdraw and we will affirm the judgment of sentence. McClendon, 434 A.2d at 1188. However, if it appears that there are non-frivolous issues, we will deny the petition to withdraw and remand the case with directions that counsel file an advocate's brief. Commonwealth v. Kearns, 896 A.2d 640, 647 (Pa.Super.2006) (Kearns I). An advocate's brief must contain fully developed arguments supporting the appellant's position. Commonwealth v. Love, 896 A.2d 1276, 1287 (Pa.Super.2006); Pa.R.A.P. 2119(a). After the filing thereof, the Commonwealth will have the opportunity to submit a responsive brief. Id. Upon receipt of the advocate's brief and the Commonwealth's response, we will then decide the merits of the case....