Com. v. Green, K. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
KEVIN GREEN,
Appellant No. 3045 EDA 2017
Appeal from the PCRA Order Entered September 15, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005944-2015
BEFORE: BENDER, P.J.E., STABILE, J., and PLATT, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 25 2018
Appellant, Kevin Green, appeals from the post-conviction court’s order
denying his petition filed under the Post Conviction Relief Act (PCRA), 42
Pa.C.S. §§ 9541-9546. Appellant contends that the PCRA court erred by
dismissing this portion of his petition, wherein he requested that his post-
sentence motion rights be reinstated nunc pro tunc based on the ineffective
assistance of his trial counsel. Additionally, Appellant’s counsel, James R.
Lloyd, III, Esq., has filed a petition to withdraw from representing Appellant,
along with an Anders1 brief. While a Turner/Finley2 no-merit letter is the
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* Retired Senior Judge assigned to the Superior Court.
1 Anders v. California, 386 U.S. 738 (1967).
2Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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appropriate filing when counsel seeks to withdraw on appeal from the denial
of PCRA relief, we will accept Attorney Lloyd’s Anders brief in lieu of a
Turner/Finley no-merit letter. See Commonwealth v. Widgins, 29 A.3d
816, 817 n.2 (Pa. Super. 2011) (“Because an Anders brief provides greater
protection to a defendant, this Court may accept an Anders brief in lieu of a
Turner/Finley letter.”) (citation omitted). After careful review, we quash
this appeal and grant Attorney Lloyd’s petition to withdraw.
The facts of Appellant’s underlying conviction are not necessary to our
disposition of his present appeal. We need only note that after his conviction
and sentencing proceeding, Appellant neither filed a post-sentence motion,
nor a direct appeal. On January 3, 2017, Appellant filed a timely PCRA
petition, arguing that his trial counsel had acted ineffectively by not filing a
post-sentence motion or a direct appeal on his behalf. PCRA counsel was
appointed, and thereafter filed an amended petition. The Commonwealth filed
a response, stating that it agreed with the reinstatement of Appellant’s direct
appeal rights, but asking that the court dismiss Appellant’s petition to the
extent he requested the reinstatement of his post-sentence motion rights, as
Appellant had failed to demonstrate that the trial court “would have reduced
his sentence in response to the motion.” Commonwealth’s Response to PCRA
Petition, 6/21/17, at 2 (citing Commonwealth v. Reaves, 923 A.2d 1119,
1127, 1131-32 (Pa. 2007)).
After the PCRA court heard brief oral arguments on August 3, 2017, it
issued two orders on August 4, 2017, one granting Appellant leave to file a
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direct appeal nunc pro tunc, and the other denying his request to file a post-
sentence motion. On August 8, 2017, Appellant filed a nunc pro tunc appeal
from his May 26, 2016 judgment of sentence. He did not file an appeal from
the PCRA court’s order denying his petition to the extent that he requested
his post-sentence motion rights be restored.
On September 15, 2017, despite the pendency of Appellant’s appeal
from his judgment of sentence, the PCRA court conducted another brief
proceeding, and then issued an order granting the Commonwealth’s motion
to dismiss Appellant’s petition regarding his request for the reinstatement of
his post-sentence motion rights. On September 18, 2017, Appellant filed the
present appeal from that September 15, 2017 order.
On January 23, 2018, Attorney Lloyd filed a petition to withdraw and an
Anders brief, claiming that the following issue that Appellant seeks to raise
herein is frivolous:
Did the PCRA [c]ourt err when it dismissed [Appellant’s] PCRA
petition seeking reinstatement of his right to pursue a post-
sentence motion seeking reconsideration of sentence nunc pro
tunc where the trial court (which also presided as the PCRA court)
expressly stated that there is not a reasonable possibility that the
motion would have resulted in a reduction of the sentence
imposed?
Anders Brief at 5. Accordingly,
this Court must first pass upon counsel’s petition to withdraw
before reviewing the merits of the underlying issues presented by
[the appellant]. Commonwealth v. Goodwin, 928 A.2d 287,
290 (Pa. Super. 2007) (en banc).
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Prior to withdrawing as counsel on a direct appeal under Anders,
counsel must file a brief that meets the requirements established
by our Supreme Court in Santiago. The brief must:
(1) provide a summary of the procedural history and facts,
with citations to the record;
(2) refer to anything in the record that counsel believes
arguably supports the appeal;
(3) set forth counsel’s conclusion that the appeal is
frivolous; and
(4) state 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. Counsel also must provide a copy of
the Anders brief to his client. Attending the brief must be a letter
that advises the client 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.”
Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super.
2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).
Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014). After
determining that counsel has satisfied these technical requirements of Anders
and Santiago, this Court must then “conduct an independent review of the
record to discern if there are any additional, non-frivolous issues overlooked
by counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super.
2015) (citations and footnote omitted).
In this case, Attorney Lloyd’s Anders brief complies with the above-
stated requirements. Namely, he includes a summary of the relevant factual
and procedural history, he refers to portions of the record that could arguably
support Appellant’s claim, and he sets forth his conclusion that Appellant’s
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appeal is frivolous. He also explains his reasons for reaching that
determination, and supports his rationale with citations to the record and
pertinent legal authority. Attorney Lloyd states in his petition to withdraw that
he supplied Appellant with a copy of his Anders brief. Additionally, he
attached to his petition to withdraw a letter directed to Appellant, in which he
informs Appellant of the rights enumerated in Nischan. Accordingly, counsel
has complied with the technical requirements for withdrawal.
However, we cannot review the merits of the issue Appellant seeks to
raise herein, as he has appealed from an order that is a legal nullity. As
stated, supra, on August 4, 2017, the PCRA court issued two orders, which
essentially granted in part, and denied in part, Appellant’s PCRA petition. On
August 8, 2017, Appellant filed a timely notice of appeal from his judgment of
sentence, thus divesting the PCRA court of jurisdiction to proceed further in
this case. See Commonwealth v. Pearson, 685 A.2d 551, 556-57 (Pa.
Super. 1996) (stating that, pursuant to Pa.R.A.P. 1701(a), generally, once a
notice of appeal is filed, the trial court is divested of jurisdiction to act further
in the matter). Consequently, the court’s September 15, 2017 order is a legal
nullity from which the present appeal cannot stem. See Commonwealth v.
Bentley, 831 A.2d 668, 670 (Pa. Super. 2003) (considering an order a legality
nullity where the trial court did not have jurisdiction to enter it). Accordingly,
we quash Appellant’s appeal and grant Attorney Lloyd’s petition to withdraw.
Appeal quashed. Petition to withdraw granted. Jurisdiction
relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/25/18
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