Commonwealth v. Thomas, J-S13029-21

• Decision Date: 10 June 2021
• Docket Number: No. 168 EDA 2021,J-S13029-21,168 EDA 2021
• Parties: COMMONWEALTH OF PENNSYLVANIA Appellee v. ANTHONY THOMAS Appellant
• Court: Superior Court of Pennsylvania

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
ANTHONY THOMAS Appellant

J-S13029-21
No. 168 EDA 2021

SUPERIOR COURT OF PENNSYLVANIA

June 10, 2021

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered December 11, 2019
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0007210-2018

BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.^*

MEMORANDUM BY KING, J.:

Appellant, Anthony Thomas, appeals nunc pro tunc from the judgment of sentence entered in the Montgomery County Court of Common Pleas, following his stipulated bench trial convictions for burglary, attempted burglary, and conspiracy to commit burglary.¹ We affirm and grant counsel's petition to withdraw.

The relevant facts and procedural history of this case are as follows. On September 12, 2018, Appellant was arrested and charged with eight counts of burglary, three counts of criminal attempt to commit burglary, seven counts of criminal trespass, seven counts of theft by unlawful taking, ten counts of

Page 2

receiving stolen property, ten counts of criminal mischief, and possessing instruments of crime. Appellant proceeded to a stipulated bench trial on July 31, 2019, and the court convicted him of seven counts of burglary, three counts of attempted burglary, and six counts of criminal conspiracy to commit burglary. Sentencing was deferred pending a pre-sentence investigation report ("PSI").

On December 11, 2019, the court held a sentencing hearing. At the hearing, the sentencing court agreed with Appellant's counsel that Appellant's prior record score was a five and that he should not be sentenced as a Repeat Felon ("RFEL"). The court also agreed with Appellant's counsel that Appellant was eligible for the recidivism risk reduction incentive ("RRRI") program. The court also agreed with counsel's recommendation that Appellant be sent to State Correctional Institution ("SCI") Chester to be evaluated for drug treatment. The court sentenced Appellant to consecutive terms of 12 to 24 months' imprisonment for the burglary counts; consecutive terms of 12 to 24 months' imprisonment for attempted burglary; and concurrent terms of 12 to 24 months' imprisonment for conspiracy. This resulted in an aggregate sentence of 10 to 20 years' imprisonment.

On December 18, 2019, Appellant timely filed post-sentence motions, which the court denied on June 10, 2020. On September 28, 2020, Appellant filed a pro se petition under the Post-Conviction Relief Act ("PCRA"), and the court reinstated Appellant's direct appeal rights nunc pro tunc on December

Page 3

18, 2020.

On January 8, 2021, Appellant timely filed a notice of appeal nunc pro tunc.² On January 11, 2021, the court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On January 28, 2021, counsel for Appellant filed a statement pursuant to Pa.R.A.P. 1925(c)(4), indicating counsel's intent to file a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).

As a preliminary matter, counsel seeks to withdraw his representation pursuant to Anders and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: (1) petition the Court for leave to withdraw, certifying that after a thorough review of the record, counsel has concluded the issues to be raised are wholly frivolous; (2) file a brief referring to anything in the record that might arguably support the appeal; and (3) furnish a copy of the brief to the appellant and advise him of his right to obtain new counsel or file a pro se brief to raise any additional points the appellant deems worthy of review. Santiago, supra at 173-79, 978 A.2d at 358-61. Substantial compliance with these requirements is

Page 4

sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super. 2007). After establishing that counsel has met the antecedent requirements to withdraw, this Court makes an independent review of the record to confirm that the appeal is wholly frivolous. Commonwealth v. Palm, 903 A.2d 1244, 1246 (Pa.Super. 2006).

In Santiago, supra, our Supreme Court addressed the briefing requirements where court-appointed appellate counsel seeks to withdraw representation:

Neither Anders nor McClendon requires that counsel's brief provide an argument of any sort, let alone the type of argument that counsel develops in a merits brief. To repeat, what the brief must provide under Anders are references to anything in the record that might arguably support the appeal.

* * *
Under Anders, the right to counsel is vindicated by counsel's examination and assessment of the record and counsel's references to anything in the record that arguably supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

[I]n the Anders brief that accompanies court-appointed counsel's petition

...