J-S70004-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

DERRICK JAHEEL SMITH

                         Appellant                   No. 682 EDA 2016


           Appeal from the Judgment of Sentence February 2, 2016
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0001706-2015


BEFORE: OLSON, OTT and MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                       FILED DECEMBER 02, 2016

      Appellant, Derrick Jaheel Smith, appeals from the judgment of

sentence entered on February 2, 2016.      On this direct appeal, Appellant’s

court-appointed counsel has filed both a petition to withdraw as counsel and

an accompanying brief pursuant to Anders v. California, 386 U.S. 738

(1967) and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).             We

conclude   that Appellant’s counsel has complied with the          procedural

requirements necessary to affect withdrawal. Moreover, after independently

reviewing the record, we conclude that the instant appeal is wholly frivolous.

We, therefore, grant counsel’s petition to withdraw and affirm Appellant’s

judgment of sentence.

      On May 21, 2015, Appellant entered a negotiated guilty plea to driving

under the influence of a controlled substance (“DUI”), general impairment
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and reckless driving.1 That day, the trial court sentenced Appellant to serve

a term of six months’ intermediate punishment.

        On August 12, 2015, Appellant was arrested in Philadelphia and

charged with possessing instruments of crime, terroristic threats, violation of

a protection from abuse order, and resisting arrest. Further, on September

15, 2015, Appellant was arrested due to a warrant issued by the New Jersey

courts. As a result of these charges, Appellant’s probation and parole officer

claimed that Appellant was in violation of the terms of his intermediate

punishment and the officer thus requested that the Court of Common Pleas

of Delaware County issue a bench warrant/detainer for Appellant.            On

September 25, 2015, the Court of Common Pleas of Delaware County issued

the requested bench warrant/detainer.

        On January 6, 2016, while Appellant was represented by counsel,

Appellant filed a “petition for writ of habeas corpus for lack of inter-county

requisition” in the Court of Common Pleas of Delaware County.           Within

Appellant’s pro se petition, Appellant requested his immediate release from

jail and the discharge of the detainer because the “detainer now is the sole

reason for [Appellant’s] incarceration.” Appellant’s Pro Se “Petition for Writ

of Habeas Corpus for Lack of Inter-County Requisition,” 1/6/16, at 1. The

clerk of courts accepted Appellant’s pro se petition for filing and forwarded a

____________________________________________


1
    75 Pa.C.S.A. §§ 3802(a)(1) and 3736(a), respectively.




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copy of the document to Appellant’s attorney of record. See Docket Entry at

1/6/16. However, the trial court did not rule on Appellant’s pro se petition.

        On February 2, 2016, as a result of the New Jersey charges, the trial

court held a Gagnon II2 hearing and, at the conclusion of this hearing, the

trial court found that Appellant was in violation of the terms of his

intermediate     punishment.         The   trial   court   then   revoked   Appellant’s

intermediate punishment and, on the underlying DUI conviction, the trial

court resentenced Appellant to serve a term of 72 hours to six months in

jail. N.T. Gagnon II Hearing, 2/2/16, at 4. Appellant then filed a timely

notice of appeal to this Court.

        On appeal, Appellant’s court-appointed counsel filed a petition for

leave to withdraw and accompanied this petition with an Anders brief.

Counsel’s Anders brief raises one potential appellate claim:

          The Gagnon sentence imposed on February 2, 2016 should
          be vacated because a January 6, 2016 pro se motion
          challenging inter-county jurisdiction, requisition and venue,
          and the Detainers Act, 42 Pa.C.S.A. §§ 9101-9108, is
          matched with no docketed dispositional order.

Appellant’s Brief at 3.

        Before reviewing the merits of this appeal, this Court must first

determine whether appointed counsel has fulfilled the necessary procedural




____________________________________________


2
    Gagnon v. Scarpelli, 411 U.S. 778 (1973).



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requirements for withdrawing as counsel. Commonwealth v. Miller, 715

A.2d 1203, 1207 (Pa. Super. 1998).

      To withdraw under Anders, court-appointed counsel must satisfy

certain technical requirements.    First, counsel must “petition the court for

leave to withdraw stating that, after making a conscientious examination of

the record, counsel has determined that the appeal would be frivolous.”

Miller, 715 A.2d at 1207.      Second, counsel must file an Anders brief, in

which counsel:

         (1) provide[s] a summary of the procedural history and
         facts, with citations to the record; (2) refer[s] to anything in
         the record that counsel believes arguably supports the
         appeal; (3) set[s] forth counsel’s conclusion that the appeal
         is frivolous; and (4) state[s] 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.

Santiago, 978 A.2d at 361.

      Finally, counsel must furnish a copy of the Anders brief to his or her

client and advise the client “of [the client’s] right to retain new counsel,

proceed pro se or raise any additional points worthy of this Court’s

attention.”   Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super.

2007).

      If counsel meets all of the above obligations, “it then becomes the

responsibility of the reviewing court to make a full examination of the

proceedings and make an independent judgment to decide whether the



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appeal is in fact wholly frivolous.” Santiago, 978 A.2d at 355 n.5. It is only

when all of the procedural and substantive requirements are satisfied that

counsel will be permitted to withdraw.

      In the case at bar, counsel has met all of the above procedural

obligations.    We must, therefore, review the entire record and analyze

whether this appeal is, in fact, wholly frivolous.

      On appeal, Appellant claims that his judgment of sentence must be

vacated because the trial court failed to rule on the pro se petition he filed

while he was represented by counsel. See Appellant’s Pro Se “Petition for

Writ of Habeas Corpus for Lack of Inter-County Requisition,” 1/6/16, at 1.

Appellant’s claim on appeal is frivolous.

      In this case, Appellant was actively represented by counsel when he

filed his pro se “Petition for Writ of Habeas Corpus for Lack of Inter-County

Requisition.”    As such, the trial court correctly refused to consider

Appellant’s pro se petition. See Commonwealth v. Ellis, 626 A.2d 1137,

1139 (Pa. 1993) (“there is no constitutional right to hybrid representation

either at trial or on appeal”); Commonwealth v. Pursell, 724 A.2d 293,

302 (Pa. 1999) (“[w]e will not require courts considering PCRA petitions to

struggle through the pro se filings of [petitioners] when qualified counsel

represent[s] those [petitioners]”); Commonwealth v. Ruiz, 131 A.3d 54,

56 n.4 (Pa. Super. 2015) (the defendant’s “pro se motion to modify

sentence . . . was a legal nullity . . . [because] he was represented by

counsel” at the time); Pa.R.Crim.P. 576(A)(4) (where a represented criminal

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defendant submits a pro se document for filing, “the clerk of courts shall

accept it for filing, time stamp it with the date of receipt and make a docket

entry reflecting the date of receipt, [] place the document in the criminal

case file[, and forward a copy of the document] to the defendant’s attorney

and the attorney for the Commonwealth”); Pa.R.Crim.P. 576 cmt. (Rule

576(A)(4)’s “requirement that the clerk time stamp and make docket entries

of the filings in these cases only serves to provide a record of the filing, and

does not trigger any deadline nor require any response”).

      Therefore, since the trial court was not required to rule on Appellant’s

pro se filing, Appellant’s claim on appeal is frivolous.

      We have independently considered the issue raised within Appellant’s

brief and we have determined that the claim is frivolous. In addition, after

an independent review of the entire record, we see nothing that might

arguably support this appeal.       The appeal is therefore wholly frivolous.

Accordingly, we affirm Appellant’s judgment of sentence and grant counsel’s

petition to withdraw appearance.

      Petition to withdraw appearance granted.             Judgment of sentence

affirmed. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/2/2016




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