Com. v. Torres-Olan, S. ( 2022 )

J-S11037-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SANTOS D. TORRES-OLAN :
:
Appellant : No. 1161 WDA 2021
Appeal from the PCRA Order Entered August 25, 2021
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0001888-2015
BEFORE: PANELLA, P.J., OLSON, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED: JUNE 23, 2022
Santos D. Torres-Olan (“Torres-Olan”) appeals from the order denying
his petition filed pursuant to the Post Conviction Relief Act (“PCRA”).1
Additionally, Torres-Olan’s counsel (“Counsel”) has filed a petition to withdraw
from representation and a “no-merit” brief pursuant Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d
213 (Pa. Super. 1988) (en banc).2 We deny Counsel’s petition to withdraw.
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1 See 42 Pa.C.S.A. §§ 9541-9546.
2 Counsel seeks to withdraw under Anders v. California, 386 U.S. 738(1967), which applies in direct appeals, not PCRA appeals. “Where counsel
seeks to withdraw on appeal from the denial of PCRA relief, a Turner/Finley
‘no-merit letter’ is the appropriate filing. However, 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. Reed, 107 A.3d
137, 139 n.5 (Pa. Super. 2014) (some quotation marks and brackets omitted).
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In light of our disposition, we do not summarize the complete factual
and procedural history of this appeal. Briefly, following the affirmance of his
judgment of sentence for terroristic threats, firearms not to be carried without
a license, and possession of firearm with altered manufacturer’s number,3
Torres-Olan timely filed a pro se PCRA petition. The PCRA court appointed
counsel (“prior PCRA counsel”), and ultimately held a hearing on April 29,
2021, despite prior PCRA counsel’s filing of a Turner/Finley letter and a
petition to withdraw. The court denied Torres-Olan’s PCRA petition on August
25, 2021, but did not grant prior PCRA counsel leave to withdraw.
Torres-Olan timely filed a pro se notice of appeal. Prior PCRA counsel
took no action as to the appeal, and for reasons not apparent in the record,
present Counsel instead filed a Pa.R.A.P. 1925(b) statement on Torres-Olan’s
behalf. The PCRA court filed a statement in lieu of a Rule 1925(a) opinion
adopting its August 25, 2021 order and opinion denying relief. In this Court,
Counsel has filed a petition to withdraw and a “no-merit” brief.
When presented with Turner/Finley brief, this Court may not review
the merits of the underlying issues without first passing on the request to
withdraw. See Commonwealth v. Knecht, 219 A.3d 689, 691 (Pa. Super.
2019). A Turner/Finley brief must: (1) detail the nature and extent of
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3This Court affirmed the judgment of sentence on December 31, 2019, and
our Supreme Court denied allowance of appeal on July 13, 2020. See
Commonwealth v. Torres-Olan, 225 A.3d 1200 (Pa. Super. 2019), appeal
denied, 237 A.3d 385 (Pa. 2020). Torres-Olan filed his pro se PCRA petition
on August 3, 2020.
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counsel’s review of the case; (2) list each issue the appellant wishes to have
reviewed; and (3) explain counsel’s reasoning for concluding that the
appellant’s issues are meritless. See id. Counsel must send a copy of the
brief to the appellant, along with a copy of the petition to withdraw, and inform
the appellant of the right to proceed pro se or to retain new counsel. See id.If the brief meets these requirements, this Court will conduct an independent
review of the appellant’s issues. See id.Our review of the petition to withdraw and “no-merit” brief reveals that
Counsel substantially complied with Turner/Finley’s procedural requirements
by detailing her review of the case, listing the issue Torres-Olan wished to
raise, and explaining why she believed this appeal to be frivolous. See
Knecht, 219 A.3d at 691; see also Petition for Leave to Withdraw as Counsel,
12/17/21, at 1-2; “No-Merit” Brief at 5, 7, 9. Counsel has also attached to
her petition to withdraw a letter to Torres-Olan advising him of his right to
proceed pro se or with private counsel and stating that she provided him with
a copy of her petition and brief. See Petition for Leave to Withdraw as
Counsel, 12/17/21, at 2 and attachment.
We observe, however, that the transcript of the April 29, 2021 PCRA
hearing is not included in the record, nor are there any indications that
Counsel ordered the transcript. Turner/Finley requires appellate counsel
seeking withdrawal to undertake a full and thorough review of the record. See
Commonwealth v. Karanicolas, 836 A.2d 940, 947 n.11 (Pa. Super. 2003);
cf. Commonwealth v. Flowers, 113 A.2d 1246, 1250 (Pa. Super. 2015)
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(reviewing a petition to withdraw pursuant to Anders and concluding that
neither counsel nor this Court can satisfy Anders if counsel fails to supply this
Court with a complete record). Thus, absent any indication that Counsel
obtained and reviewed the transcript of the PCRA hearing, we cannot conclude
that she fulfilled her obligations pursuant to Turner/Finley, particularly since
Counsel did not represent Torres-Olan at the hearing. See Karanicolas, 836
A.2d at 947 n.11.
Accordingly, we deny Counsel’s petition to withdraw and direct her to
file an advocate’s brief or a new petition to withdraw and Turner/Finley brief
following a review of the complete record. Counsel shall file her new brief in
this Court within thirty days of the date of this memorandum and ensure the
transcript of the PCRA hearing is transmitted to this Court as a supplemental
record.
Petition to withdraw denied. Counsel is directed to file an advocate’s
brief or a new petition to withdraw and Turner/Finley brief consistent with
this memorandum.
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