Com. v. Brown, J.

J-S48018-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHNNIE LEWIS BROWN
Appellant No. 567 MDA 2014
Appeal from the PCRA Order February 28, 2014
In the Court of Common Pleas of Adams County
Criminal Division at No(s): CP-01-CR-0001178-2010
BEFORE: DONOHUE, J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY JENKINS, J.: FILED AUGUST 22, 2014
1
frivolous, together with a petition to withdraw as counsel.2 We remand due
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
2
Appellant counsel purports to file the instant brief pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa.1988) and Commonwealth
v. Finley, 550 A.2d 213 (Pa.Super.1988) (en banc), which established the
appropriate procedure for appointed counsel to request withdrawal in
meritless collateral attacks on criminal convictions. See Commonwealth v.
Pitts, 981 A.2d 875, 876 n.1 (Pa.2009) (outlining Turner/Finley
requirements); Commonwealth v. Friend, 896 A.2d 607, 614
nstant filing is actually a brief
filed pursuant to Anders v. California, 386 U.S. 738 (1967), which
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collateral appeal briefing/withdrawal process.
Following trial, a jury found Appellant guilty of possession of a
controlled substance,3 possession of drug paraphernalia,4 and escape.5 On
October 20, 2011, the trial court sentenced Appellant to an aggregate
sentence of 6 to 12 years of incarceration.
Appellant brought a direct appeal alleging the trial court erred in
denying his motion to suppress evidence and challenging the sufficiency of
the evidence. This Court affirmed his judgment of sentence on July 31,
2012. Appellant did not file a Petition for Allowance of Appeal to the
Pennsylvania Supreme Court.
_______________________
(Footnote Continued)
established the procedures and requirements for appointed counsel to
withdraw in the context of a meritless direct appeal. See Commonwealth
v. Martuscelli, 54 A.3d 940, 947 (Pa.Super.2012) (outlining Anders
Anders brief provides greater protection to a
defendant, this Court may accept an Anders brief in lieu of a Turner/Finley
Commonwealth v. Widgins, 29 A.3d 816, 817 n.2
(Pa.Super.2011). However, because a Turner/Finley no merit letter is the
appropriate filing for a PCRA appeal that appointed counsel deems meritless,
we review this filing for compliance with Turner/Finley. See
Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa.Super.2004).
3
35 P.S. § 780-113(a)(30).
4
35 P.S. § 780-113(a)(32).
5
18 Pa.C.S. § 5121(a).
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On June 27, 2013, Appellant filed a timely pro se PCRA petition to
which the Commonwealth filed an answer. Thereafter, the PCRA court
appointed counsel, who filed an amended PCRA petition. The amended
petition alleged trial counsel was ineffective for: (1) failing to motion the trial
court to produce a subpoenaed witness, (2) failing to investigate and present
at trial the jacket Appellant was wearing at the time of arrest, (3) failing to
rest,
(4) failing to file a pre-trial motion requesting fingerprint and/or DNA testing
of evidence, (5) failing to request that the court sequester the
nt violated his constitutional rights. See
Amended PCRA Petition, pp. 2-3.6 The PCRA court conducted a hearing on
January 14, 2014, and denied the petition on February 28, 2014. Appellant
timely appealed and filed a Pa.R.A.P. 1925(b) statement of matters
complained of on appeal that alleged the PCRA court erred in denying his
claims that trial counsel (1) failed to secure the appearance of a witness, (2)
failed to present a jacket at trial, and (3) failed to request fingerprint and/or
DNA testing. See 1925(b) Statement, April 17, 2014. The PCRA court filed
a Pa.R.A.P. 1925(a) -filed Order
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6
This Court has inserted the pagination into the unnumbered Amended
PCRA Petition.
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and Opinion denying the petition. See Opinion Pursuant to Pa.R.A.P.
1925(a), April 21, 2014.
As previously noted, although technically an Anders brief, we review
this filing for compliance with the requirements of Turner/Finley. See
Widgins, supra; Fusselman, supra. Our Supreme Court has explained
the procedure required for court-appointed counsel to withdraw from PCRA
representation:
[Turner and Finley] establish the procedure for
withdrawal of court-appointed counsel in collateral attacks on
criminal convictions. Independent review of the record by
competent counsel is required before withdrawal is permitted.
Such independent review requires proof of:
1) - ng the nature and
extent of his [or her] review;
2) -
petitioner wished to have reviewed;
3) -
4) The PCRA court conducting its own independent review of the
record; and
5) The PCRA court agreeing with counsel that the petition was
meritless.
Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa.2009) (citations
omitted). In addition, this Court has required that PCRA counsel who seeks
to withdraw must:
application to withdraw as counsel, and must supply the
-
advising the petitioner that, in the event the court grants the
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application of counsel to withdraw, he or she has the right to
proceed pro se or with the assistance of privately retained
counsel.
Commonwealth v. Friend, 896 A.2d 607, 614 (Pa.Super.2006) (emphasis
deleted).
Instantly, counsel has not substantially complied with these additional
requirements. Counsel filed a motion to withdraw as counsel. See
Motion to Withdraw states that counsel conducted a PCRA hearing on
possible appeal. See Motion to Withdraw, p. 2 (pagination supplied). The
Motion to Withdraw determined that there were no non-frivolous issues to be
raised on appeal. Id. The Motion to Withdraw further explains the steps
Id.e
forthcoming no-
deficient for multiple reasons. First, the letter did not supply Appellant with
a copy of the forthcoming no-merit letter/brief, which the letter indicates
counsel had not yet filed. See Letter to Appellant, April 17, 2014, attached
as Exhibit A to the Motion to Withdraw. Second, the letter advises Appellant
that he may proceed with privately-retained counsel or proceed pro se
Id. Implicit in this advice is that
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filing further submissions, either proceeding pro se or with the help of new
counsel. This advice is incorrect. This Court simultaneously decides PCRA
issues raised in the PCRA appeal. Any arguments submitted by Appellant
thereafter would be untimely and could not be considered by the Court.
required opportunity to proceed pro se or with privately-retained counsel.
While counsel has partially complied with the requirements of
Turner/Finley, we find that compliance deficient. Consequently, we
remand this matter and direct appointed counsel to either re-file his
Turner/Finley no merit letter and a proper petition to withdraw, or to file a
of the date of this decision.
-file a Turner/Finley letter, we
direct him to adhere to the requirements described earlier within this
memorandum. Specifically, counsel must provide Appellant with a copy of
the no merit letter and advise Appellant that he has the right to retain new
counsel, or to proceed pro se, and/or to provide this Court with any
information he deems worthy of our attention. If counsel files a
Turner/Finley no-merit letter with a petition to withdraw, Appellant may
file his own brief, either pro se or through private counsel, within forty-five
Case remanded. Jurisdiction retained.
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Judge Platt concurs in result.
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