Com. v. Mahaffey, C. ( 2018 )

J-S13011-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CURTIS MAHAFFEY :
:
Appellant : No. 695 WDA 2017
Appeal from the PCRA Order February 9, 2017
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0004685-2003,
CP-02-CR-0017548-2002
BEFORE: GANTMAN, P.J., SHOGAN, J., and MUSMANNO, J.
JUDGMENT ORDER BY GANTMAN, P.J.: FILED MARCH 12, 2018
Appellant, Curtis Mahaffey, appeals from the order entered in the
Allegheny County Court of Common Pleas, which denied his serial petition filed
under the Post Conviction Relief Act at 42 Pa.C.S.A. §§ 9541-9546.
Preliminarily, counsel has filed a brief/motion to withdraw as counsel,
purportedly under Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18
L. Ed. 2d 493 (1967) and its progeny. In the context of a PCRA petition and
request to withdraw, however, the appropriate filing is a “no-merit”
letter/brief. Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988);
Commonwealth v. Finley, 550 A.2d 213 (1988). But see Commonwealth
v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa.Super. 2004), appeal denied,
584 Pa. 691, 882 A.2d 477 (2005) (stating Superior Court can accept Anders
brief in lieu of Turner/Finley letter, where PCRA counsel seeks to withdraw
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on PCRA appeal). Before counsel can withdraw representation under the
PCRA, “Pennsylvania law requires counsel to file and obtain approval of a ‘no-
merit’ letter pursuant to the mandates of Turner/Finley.” Commonwealth
v. Karanicolas, 836 A.2d 940, 947 (Pa.Super. 2003) (emphasis in original).
Similar to the Anders situation, Turner/Finley counsel
must review the case zealously. Turner/Finley counsel
must then submit a “no-merit” letter to the trial court, or
brief on appeal to this Court, detailing the nature and extent
of counsel’s diligent review of the case, listing the issues
which the petitioner wants to have reviewed, explaining why
and how those issues lack merit, and requesting permission
to withdraw.
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007). Counsel
must contemporaneously serve on Appellant copies of the “no-merit” letter or
brief, the motion to withdraw, plus a statement advising Appellant that he has
the right to file a brief in this Court pro se or with new privately-retained
counsel. See id. If counsel fails to satisfy the technical prerequisites of
Turner/Finley, we generally deny withdrawal and remand for counsel to take
the appropriate steps to satisfy Turner/Finley or file an advocate’s brief,
depending on the case circumstances. Id. To withdraw, counsel must assure
this Court of the substantial compliance with these technical requirements.
Commonwealth v. Muzzy, 141 A.3d 509 (Pa.Super. 2016).
Instantly, counsel’s motion to withdraw correctly states Appellant has
the right to retain new counsel or proceed pro se with this appeal to raise any
additional points Appellant deems worthy of review. (See Motion to Withdraw
as Counsel, filed 12/29/17, ¶24.) Nevertheless, the copy of the letter counsel
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attached to the motion misstates Appellant’s rights in paragraph three, which
asserts: “In the probable event that the Superior Court grants my motion to
withdraw as your counsel, you have the right to proceed with your appeal on
your own without counsel, or you can retain counsel to assist you with this
appeal.” (See Letter attached to Motion to Withdraw as Counsel, dated
12/29/17, ¶3.) This language erroneously advises Appellant that he can act
only “in the probable event” this Court lets counsel withdraw; thus, the letter
“improperly conveys to Appellant the conclusion that he cannot proceed pro
se or by privately retained counsel unless, and until, this Court rules on
counsel's withdrawal request.” That advice is flawed. See Muzzy, supra
(stating: “In the case sub judice, counsel utilized language that is peculiar to
the procedure at the common pleas court level when counsel seeks to
withdraw, without adjusting it to the posture of the case at the appellate level.
By advising Appellant that he may proceed either pro se or with private
counsel only if, and after, we grant counsel’s [request] to withdraw, Appellant
will lose the very right that counsel is obligated to inform her client that he
retains”). Instead, Appellant is entitled to proceed pro se or retain private
counsel as soon as counsel files a withdrawal motion and notifies Appellant
of counsel’s intent to withdraw. Although counsel’s brief and motion to
withdraw substantially comply with the technical requirements of
Turner/Finley, the advice in counsel’s letter does not. See generally
Commonwealth v. Woods, 939 A.2d 896 (Pa.Super. 2007) (explaining this
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Court must evaluate counsel’s letter to appellant to determine whether letter
adds to, subtracts from, or conflicts with motion). Because counsel’s letter
to Appellant conflicts with the motion to withdraw, in that the letter misstates
Appellant’s rights, the letter renders counsel’s effort to withdraw defective.
Accordingly, we deny counsel’s motion to withdraw and direct counsel
to (a) re-file an amended withdrawal motion in this Court, within ten days of
the filing date of this decision; (b) contemporaneously resend a copy of a
properly designated appellate brief and revised motion to Appellant; and (c)
attach to the amended motion an amended letter advising Appellant correctly
of his immediate right to proceed pro se or with privately retained counsel
and file a brief raising any additional points Appellant deems worthy of review.
Motion to withdraw as counsel denied; case remanded with instructions.
Panel jurisdiction is retained.
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