Com. v. Williams, J. ( 2019 )

J-S79018-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMIN C. WILLIAMS :
:
Appellant : No. 1020 MDA 2018
Appeal from the PCRA Order Entered May 18, 2018
In the Court of Common Pleas of Franklin County Criminal Division at
No(s): CP-28-CR-0000660-2016
BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 04, 2019
Appellant, Jamin C. Williams, appeals from the order entered on May
18, 2018, dismissing his petition filed pursuant to the Post Conviction Relief
Act (PCRA), 45 Pa.C.S.A. §§ 9541-9546. On appeal, Appellant’s counsel filed
a petition to withdraw as counsel, and accompanying brief, pursuant to
Anders v. California, 386 U.S. 738 (1967) and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).1 Upon review, because counsel has not
complied with our procedural requirements, we deny the motion to withdraw
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1 Counsel mistakenly filed a brief pursuant to Anders. Where counsel seeks
to withdraw on appeal from the denial of PCRA relief, a Turner/Finley no-
merit letter is the appropriate filing. See Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988) (en banc). “Because an Anders brief provides greater protection to a
defendant, this Court may accept an Anders brief in lieu of a Turner/Finley
letter.” Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super.
2011).
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as counsel and remand for additional action consistent with this
memorandum.
The PCRA court summarized the facts and procedural history of this case
as follows:
On December 9, 2016, [Appellant] entered a nolo contendere plea
to one count each of criminal attempt – disarming law
enforcement; fleeing and eluding [police]; and driving under
suspension – DUI related.[2] On that same date, [the trial c]ourt
accepted the sentence[ing] terms proposed by the plea
agreement and imposed a sentence of [nine] to 36 months’
incarceration on the count of criminal attempt – disarming law
enforcement; a consecutive [nine] to 36 months’ incarceration for
fleeing and eluding [police]; and a concurrent sentence of 60 days’
incarceration for driving under suspension – DUI related.
[Appellant] did not file post-sentence motions or a direct appeal.
On March 23, 2017, [Appellant] filed a pro se [PCRA petition]. The
PCRA [p]etition alleged that trial counsel was ineffective for (a)
failing to seek proper medical evidence to contradict the
court-ordered mental health evaluation, (b) failing to work in
[Appellant’s] best interest or to an acceptable standard, and (c)
coercing [Appellant] into waiving his preliminary hearing and
entering into a plea agreement based on the threat of additional
charges. By [o]rder dated March 27, 2017, Attorney Kristin
Nicklas was appointed to represent [Appellant] in furtherance of
his PCRA claims.
On July 27, 2017, Attorney Nicklas filed a motion to withdraw as
counsel and a “no merit” letter pursuant to [Turner/Finley].
Upon consideration of Attorney Nicklas’ correspondence and [its]
independent review of the record and the law, [the PCRA c]ourt
entered an [o]rder on September 15, 2017, finding that
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2 18 Pa.C.S.A. § 901/18 Pa.C.S.A. § 5104.1(a)(1), 75 Pa.C.S.A. § 3733, and
75 Pa.C.S.A. § 1542(b)(1), respectively. The charges arose from an incident
on April 16, 2016, wherein Appellant engaged in a high-speed police chase
while driving under a suspended license. When police employed tactics to
stop the vehicle Appellant crashed, tried to flee on foot across an interstate
highway, and grabbed an officer’s taser. N.T., 12/9/2016, at 6-7.
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[Appellant’s] PCRA [p]etition lacked merit [after addressing each
of the claims raised in the PCRA petition]. [The PCRA court]
further advised [Appellant] of [its] intention to dismiss his PCRA
[p]etition without a hearing pursuant to Pa.R.Crim.P. 907(1).
Attorney Nicklas was granted leave to withdraw as counsel.
[Thereafter, the PCRA court granted Appellant two requested
extensions to file a pro se response to the impending dismissal of
his PCRA.]
On December 11, 2017, [Appellant] filed a pro se “[m]otion for
[PCRA] [r]elief” [that the trial court deemed an amended PCRA
petition.] [In that filing, Appellant] alleged for the first time that
he had asked trial counsel to file [a direct appeal and requested
reinstatement of his direct appeal rights.] [Appellant] included a
[pro se] [m]emorandum of [l]aw in which he alleged that trial
counsel was ineffective for failing to seek “proper medical
records,” failing to notify him of his mental health rights, and
failing “to have a complete and competent evaluation.” [The
PCRA court] entered an [o]rder on December 18, 2017, advising
[Appellant] it would no longer entertain claims of ineffective
assistance [of counsel] with respect to his mental health records
and evaluation process as these claims were disposed of by prior
[o]rder [entered on September 15, 2017]. [The PCRA court] did,
however, schedule an evidentiary hearing and appoint[ed]
Attorney Michael Palermo to assist [Appellant] in pursuing his
claim of ineffective assistance of counsel for failing to file an
appeal.
The evidentiary hearing was held on April 26, 2018 via video
conference[e].
* * *
After the evidentiary hearing, [the PCRA c]ourt concluded
[Appellant] was entitled to no relief and issued an [o]rder [and
accompanying opinion] denying [Appellant’s original and
amended] PCRA [p]etition[s] on May 18, 2018.
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PCRA Court Opinion, 8/28/2018, at 1-5 (original footnotes omitted). This
timely appeal resulted.3
Our standard and scope of review are well-settled.
We review an order dismissing a petition under the PCRA in the
light most favorable to the prevailing party at the PCRA level. This
review is limited to the findings of the PCRA court and the evidence
of record. We will not disturb a PCRA court's ruling if it is supported
by evidence of record and is free of legal error. This Court may
affirm a PCRA court's decision on any grounds if the record
supports it. We grant great deference to the factual findings of the
PCRA court and will not disturb those findings unless they have no
support in the record. However, we afford no such deference to
its legal conclusions. Further, where the petitioner raises
questions of law, our standard of review is de novo and our scope
of review is plenary.
* * *
The Turner/Finley decisions provide the manner for
postconviction counsel to withdraw from representation. The
holdings of those cases mandate an independent review of the
record by competent counsel before a PCRA court or appellate
court can authorize an attorney's withdrawal. The necessary
independent review requires counsel to file a “no-merit” letter
detailing the nature and extent of his review and list each issue
the petitioner wishes to have examined, explaining why those
issues are meritless. The PCRA court, or an appellate court if the
no-merit letter is filed before it, then must conduct its own
independent evaluation of the record and agree with counsel that
the petition is without merit.
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3 Appellant filed a timely, counseled notice of appeal. Thereafter, Appellant
requested a change in appointed counsel and the PCRA court eventually
appointed Attorney Kristopher Accardi to represent Appellant on appeal.
Attorney Accardi timely complied with the PCRA court’s subsequent direction
to file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). The PCRA court issued an opinion pursuant to Pa.R.A.P.
1925(a) on August 28, 2018.
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[T]his Court [has] imposed additional requirements on counsel
that closely track the procedure for withdrawing on direct
appeal.... [C]ounsel is required to contemporaneously serve upon
his [or her] client his [or her] no-merit letter and application to
withdraw along with a statement that if the court granted
counsel's withdrawal request, the client may proceed pro se or
with a privately retained attorney.
Commonwealth v. Reed, 107 A.3d 137, 140 (Pa. Super. 2014) (internal
citations omitted).
Here, our review of the certified record confirms that it is incomplete.
In its opinion, the PCRA court states that it held an evidentiary hearing, via
video conferencing, on April 26, 2018. Upon our review, there are no docket
entries indicating that an evidentiary hearing was held or that counsel
subsequently ordered the transcripts from the PCRA hearing to be filed in the
record. In their appellate filings, neither counsel for Appellant nor the PCRA
court cite specifically to the notes of testimony from the PCRA hearing.
However, because the PCRA court’s opinion references and contains a detailed
summary of the testimony presented by trial counsel and Appellant at the
April 26, 2018 hearing, we have no reason to believe that the hearing did not
transpire.
As mentioned above, however, one of our requirements is to conduct an
independent review of the record and, in order to do so, this Court has stated:
All appellants are required to insure a sufficient record is delivered
to our Court for review. [See generally Pa.R.A.P. Chapter 19,
Transmission of Record.] This requirement is especially important
where counsel ha[s] filed an Anders brief and motion to
withdraw. The filing of the Anders brief triggers the duty of our
Court to conduct an independent review of the entire record to
make sure counsel has fully represented his client's interest.
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Thus, when Anders is implicated, the entire record needs to be
transmitted. The failure to insure a sufficient record is transmitted
to our Court is always a matter for concern. That failure is more
notable where counsel concurrently files a motion to withdraw
based upon the assertion the record is devoid of meritorious
issues.
Commonwealth v. Vilsaint, 893 A.2d 753, 758 (Pa. Super. 2006) (internal
citation omitted).
Although the foregoing principles reference the filing of an Anders brief
in the context of a direct appeal, they apply with equal force on collateral
review. Accordingly, we conclude that counsel has failed to fulfill his obligation
for withdrawal. Therefore, we deny counsel’s petition to withdraw and remand
with instructions for counsel to obtain forthwith the notes of testimony from
the PCRA evidentiary hearing held on April 26, 2018. Within 30 days of receipt
of that transcript, and after a thorough review of the record, counsel is then
directed to file either an advocate’s brief or a Turner/Finley no-merit letter
and concomitant petition to withdraw as counsel.4
Petition to withdraw as counsel denied. Case remanded for proceedings
consistent with this memorandum. Panel jurisdiction retained.
Judge Musmanno joins.
Judge Shogan concurs in the result.
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4 Finally, we note that Appellant filed a pro se application for the appointment
of new counsel with this Court on January 7, 2019. We hold that filing in
abeyance until we review the case following remand.
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