Com. v. Santiago

• Decision Date: 25 August 2009
• Docket Number: No. 52 EAP 2008.,52 EAP 2008.
• Citation: 978 A.2d 349
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Israel SANTIAGO, Appellant.
• Court: Pennsylvania Supreme Court

978 A.2d 349

COMMONWEALTH of Pennsylvania, Appellee v. Israel SANTIAGO, Appellant.

No. 52 EAP 2008.

Supreme Court of Pennsylvania.

Submitted March 20, 2009.

Decided August 25, 2009.

Randolph L. Goldman, Esq., Philadelphia, for Santiago, Israel.

Hugh J. Burns, Jr., Esq., Philadelphia District Attorney's Office, for Commonwealth of Pennsylvania.

BEFORE: CASTILLE, C.J., and SAYLOR, EAKIN, BAER, TODD, McCAFFERY and GREENSPAN, JJ.

OPINION

Chief Justice CASTILLE.

In this case, court-appointed appellate counsel filed an Anders¹ brief and an accompanying petition to withdraw from representation on the grounds that his client's direct appeal is wholly frivolous. We assumed plenary jurisdiction to review the Superior Court's determination that counsel's brief failed to meet the requirements of Anders and Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981), and to consider Pennsylvania's current procedure for withdrawal of counsel in Anders cases. For the reasons that follow, we agree with the Superior Court's conclusion that the brief was inadequate, albeit on different grounds. Further, upon consideration of the submissions concerning the proper contours of an Anders brief, as well as a consideration of relevant cases decided since McClendon, we will adjust prospectively our rules regarding the contents of an Anders brief in Pennsylvania. In appeals where the briefing notice is issued after the date of the decision in this case, counsel who seek to withdraw on grounds that their clients' appeals are frivolous shall set forth the reasons for that conclusion in the Anders brief. Accordingly, we affirm the Order of the Superior Court and remand this case for further proceedings consistent with this Opinion.

I.

Appellant Israel Santiago ("Santiago") was charged with possession of a controlled substance, possession with intent to deliver a controlled substance, and criminal conspiracy. 35 P.S. § 780-113(a)(16), (30); 18 Pa.C.S. § 903. Following a jury trial in March of 2006, Santiago was found guilty of all charges, and on April 19, 2006, he was sentenced to 21 to 42 months of incarceration, to be followed by three years' probation. Santiago filed a motion for reconsideration of sentence, which was denied, and a timely appeal was filed on August 23, 2006.

On July 17, 2007, Santiago's court-appointed appellate counsel filed a petition to withdraw from representation and an accompanying Anders brief with the Superior Court. In his brief, counsel stated that the question involved was: "whether there are any issues of arguable merit that could be raised on direct appeal presently before this court and whether the appeal is wholly frivolous." Brief at 4. Counsel set forth the procedural and factual history of Santiago's case, with citations to the record. Counsel stated that he had reviewed the entire record and concluded that Santiago's appeal was wholly frivolous, as there were no meritorious issues to present. Counsel did not summarize his own review of the record with an eye toward possible appellate issues, but instead identified two challenges to the sufficiency of the evidence that the defendant himself had asked counsel to raise, and referred to testimony elicited at trial that is arguably supportive of Santiago's claims. Counsel represented that he had informed Santiago that a petition to withdraw as counsel was being filed with the court; that he had forwarded a copy of the Anders brief to Santiago; and that he had advised Santiago of his rights to retain new counsel or to proceed pro se.

On May 2, 2008, a three-member panel of the Superior Court unanimously denied counsel's petition to withdraw. The Superior Court began by reviewing the three requirements that counsel must meet before he is permitted to withdraw from representation: First, counsel must petition the court for leave to withdraw and state that after making a conscientious examination of the record, he has determined that the appeal is frivolous; second, he must file a brief referring to any issues in the record of arguable merit; and third, he must furnish a copy of the brief to the defendant and advise him of his right to retain new counsel or to himself raise any additional points he deems worthy of the Superior Court's attention. Super. Ct. Op. at 2 (citing Commonwealth v. Ferguson, 761 A.2d 613, 616 (Pa.Super.2000)). The court then concluded that counsel fulfilled the first and third requirements for withdrawal, but did not satisfy the second, having failed to file an adequate brief. Id. at 3.

In the Superior Court's view, counsel's brief was deficient because it resembled a no-merit letter,² not a "neutral" Anders brief. The court stated that "[a] proper Anders brief does not explain why issues are frivolous and does not develop arguments against appellant's interests[,]" but rather, "articulates the issues in neutral form, cites relevant legal authorities, references appropriate portions in the record to aid the court's review, and concludes that, after a thorough review of the record, the appeal is wholly frivolous." Id. (citing Commonwealth v. Smith, 700 A.2d 1301, 1304 (Pa.Super.1997)). The court further stated that "[although appellant's counsel need not advocate strongly for issues he feels are frivolous, `a brief that essentially argues for affirmance is unacceptable.'" Id. at 3-4 (quoting Commonwealth v. Vilsaint, 893 A.2d 753, 758 (Pa.Super.2006)). Last, the court noted that even though counsel's brief identified two claims regarding the sufficiency of the evidence and referred to evidence of record that purportedly supported those claims, the brief was deficient because it did not set forth the appropriate scope and standard of appellate review for sufficiency claims, cite case law in support of the claims or provide any analysis on the claims. Id. at 5.

Accordingly, the Superior Court held that counsel's brief in support of his petition to withdraw failed to meet the requirements for such a brief as articulated by the United States Supreme Court in Anders and this Court in McClendon. Based on this holding, the court denied counsel's petition to withdraw, retained jurisdiction, and remanded the case for counsel to file an advocate's brief or a compliant Anders brief, along with a petition to withdraw, within 30 days of the court's Opinion and Order.

On May 27, 2008, counsel filed a petition for allowance of appeal with this Court, asserting that the Superior Court's determination that his brief was deficient under Anders and McClendon was erroneous and unfairly burdensome to court-appointed attorneys, and that our review of the Superior Court's decision was necessary to ensure that the principles enunciated in those cases are being properly applied in Pennsylvania.³ Subsequently, the District Attorney of Philadelphia County filed a motion in support of counsel's petition. This Court assumed plenary jurisdiction and granted review of the following issues:

1. Did the Superior Court err in concluding that [counsel's] brief filed in that court failed to comply with the requirements for an Anders brief?

2. Do the requirements set forth by the Superior Court for an Anders brief extend beyond those set by the United States Supreme Court and the Pennsylvania Supreme Court?

Commonwealth v. Santiago, 598 Pa. 609, 959 A.2d 909 (2008).⁴

Counsel's overarching contention is that the Superior Court has intruded upon this Court's rule-making authority under Article V, Section 10(c) of the Pennsylvania Constitution by developing standards for the brief that accompanies court-appointed appellate counsel's petition to withdraw that neither Anders nor McClendon requires. According to counsel, Anders and McClendon do not mandate, as the Superior Court has stated, that every such brief (1) must present supporting legal argument on issues identified therein and (2) must avoid any explanation as to why the issues lack arguable merit.

With respect to the brief he filed in particular, counsel maintains that it fully complied with Anders and McClendon, and was rejected for reasons entirely of the Superior Court's own making. Counsel argues that the Superior Court had no basis on which to conclude that the brief improperly argued against Santiago's interests. Counsel further argues that because he could not, in good faith, argue issues that he believes have no merit, the Superior Court incorrectly faulted him for not supporting Santiago's sufficiency of the evidence claims with case law and analysis. Counsel also contends that the Superior Court erred by requiring the standard of review and scope of review that a court is required to use when evaluating sufficiency claims, since the only question the brief actually presented was whether Santiago's appeal was wholly frivolous.

Last, counsel asks that we adopt a rule similar to the rule instituted by the United States Court of Appeals for the Third Circuit, and require that an attorney filing an Anders brief explain in his brief why the issues identified therein lack arguable merit. See United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001), cert. denied 535 U.S. 1087, 122 S.Ct. 1980, 152 L.Ed.2d 1037 (2002) (clarifying that duties of counsel when preparing Anders brief are to satisfy court that counsel has thoroughly examined record in search of appealable issues and explain why issues are frivolous).

The Commonwealth largely argues these same points. The Commonwealth contends that counsel's brief satisfied Anders and McClendon, and that the brief the Superior Court would have counsel submit, essentially requiring counsel to advocate sufficiency of the evidence claims that counsel believes are frivolous, places him in an ethical quandary and, possibly, in violation of the Code of Professional Responsibility. See Pa.R.P.C. 3.1 ("A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not...