APPELLATE LAW – CRIMINAL

Anders/Santiago Briefs • Withdrawal of Court-Appointed Counsel

Commonwealth v. Orellana, PICS Case No. 14-0360 (Pa. Super. Feb. 24, 2014) Wecht, J. (12 pages).

Where court-appointed appellate counsel for an indigent client identified, in his Anders/Santiago brief accompanying his motion to withdraw, a potentially meritorious issue not previously raised by the client, the court could not permit counsel to withdraw. Denied.

Court-appointed appellate counsel for the appellant, Raul Orellana, brought this motion to withdraw as counsel. Previously, counsel filed a brief in which he argued that all of the issued raised by Orellana on appeal were frivolous. Although not accompanied by a motion to withdraw, the court treated the brief as an Anders/Santiago brief; however, the court found counsel’s theory that Orellana had waived his challenge to the sufficiency of the evidence lacking, and ordered counsel to file an advocate’s brief or a petition to withdraw along with a proper Anders brief.

Pursuant to the U.S. Supreme Court case Anders v. California, prior to withdrawing as counsel on a direct appeal, counsel must file a brief that meets the requirements established by the Pennsylvania Supreme Court in Commonwealth v. Santiago, including: (1) providing a summary of the facts; (2) referring to anything in the record that counsel arguably believes supports the appeal; (3) concluding that the appeal is frivolous; and (4) stating counsel’s reasons for concluding that the appeal is frivolous with reference to relevant facts and controlling statutes/case law. Counsel must provide his client with a copy of the brief and a letter advising the client of his right to obtain private counsel, proceed pro se, or raise any other points that the client deems worthy of the court’s attention.

In the instant case, the court found that although Orellana’s counsel complied with the service requirements on Orellana and his brief complied with the first two requirements of Santiago, counsel’s brief actually concluded that Orellana’s case presented an appellate issue of arguable merit. Although counsel’s brief discussed the sufficiency of the evidence issue raised by Orellana on appeal and concluded that there were no additional issues that could be sustained on appeal, the brief also identified subsequent case law that potentially entitled Orellana to a reduction in his sentence. The court noted that clients are entitled to representation on appeal for not just those issues that the client wishes raise, but on any issue in the record that arguably supports appeal.

Because, as the court noted, a finding that an appeal was wholly frivolous was a condition precedent to a request to withdraw as appellate counsel, by identifying an issue of arguable merit in Orellana’s case, counsel was precluded, as a matter of law, from withdrawing as counsel.