Com. v. Terantino, E.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
EDWARD TERANTINO,
Appellant No. 44 EDA 2017
Appeal from the Judgment of Sentence Entered August 6, 2015
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0001848-2013
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 16, 2017
Appellant, Edward Terantino, appeals nunc pro tunc from the August
6, 2015 judgment of sentence of 48 to 96 months’ incarceration.
Additionally, Appellant’s counsel, Hillary A. Madden, Esq., seeks to withdraw
her representation of Appellant. After careful review, we deny counsel’s
petition to withdraw and remand with instructions.
In March of 2014, Appellant was convicted, following a jury trial, of
involuntary deviate sexual intercourse (of a person less than 16 years of
age) (hereinafter, “IDSI”), statutory sexual assault, and aggravated indecent
assault (of a person less than 16 years of age).1 The facts underlying
Appellant’s convictions are unnecessary to our disposition of his appeal at
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1
18 Pa.C.S. §§ 3123(a)(7), 3122.1, and 3125(8), respectively.
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this juncture. For these offenses, Appellant was sentenced to an aggregate
term of 9 to 18 years’ incarceration, which included a mandatory minimum
sentence of 5 years’ incarceration, pursuant to 42 Pa.C.S. § 9718, for
Appellant’s IDSI conviction.
Appellant filed a timely direct appeal and, while this Court found
meritless the sole issue he presented therein (a claim that the trial court
erred by allowing certain expert testimony), we sua sponte vacated
Appellant’s mandatory minimum sentence under section 9718, as that
statute has been struck down as unconstitutional in the wake of Alleyne v.
United States, 133 S.Ct. 2151, 2163 (2013) (holding that “facts that
increase mandatory minimum sentences must be submitted to the jury” and
found beyond a reasonable doubt). See Commonwealth v. Terantino,
No. 2311 EDA 2014, unpublished memorandum at 6-8 (Pa. Super. filed April
14, 2015) (relying on Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super.
2014), aff’d by, 140 A.3d 651 (Pa. 2016) (holding that 42 Pa.C.S. § 9718 is
unconstitutional pursuant to Alleyne)). Accordingly, we vacated Appellant’s
sentence and remanded for resentencing. See Terantino, No. 2311 EDA
2014, unpublished memorandum at 8.
On remand, the trial court resentenced Appellant on August 6, 2015,
to a term of 4 to 8 years’ incarceration for his IDSI conviction, and to a
concurrent term of 2 to 4 years’ incarceration for his aggravated indecent
assault offense. His statutory sexual assault conviction merged for
sentencing purposes.
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Appellant filed a timely motion for reconsideration of his sentence,
which the court denied. Appellant then filed a notice of appeal, but his
counsel at that time did not file a brief with this Court, resulting in
Appellant’s appeal being dismissed. Thereafter, the court appointed
Appellant new counsel, Attorney Madden, who filed a petition under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, seeking the
restoration of Appellant’s right to appeal from his August 6, 2015
resentencing. On October 28, 2016, the court granted Appellant’s petition
and reinstated his right to file a direct appeal. On November 23, 2016,
Attorney Madden filed the nunc pro tunc notice of appeal that is presently
before this Court. Attorney Madden also timely complied with the trial
court’s order to file a Pa.R.A.P. 1925(b) statement, wherein she preserved
the following three issues for our review:
1. The trial court erred in denying [Appellant’s] Motion to
Dismiss for lack of jurisdiction due to the expiration of the
statute of limitations.
2. The trial court erred in denying [Appellant’s] Motion to
Dismiss due to staleness and pre-arrest delay in violation of
[Appellant’s] constitutional rights to due process.
3. The trial court abused its discretion in imposing an excessive
sentence.
Pa.R.A.P. 1925(b) Statement, 12/14/16, at 1.
On March 6, 2017, Attorney Madden filed with this Court a petition to
withdraw as counsel. Therein, Attorney Madden erroneously states that she
is seeking to withdraw under Commonwealth v. Turner, 544 A.2d 927-3-
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(Pa. 1998), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988) (en banc). A Turner/Finley ‘no-merit’ letter is the appropriate filing
when counsel seeks to withdraw on appeal from the denial of PCRA relief.
See Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011).
While Attorney Madden was initially representing Appellant during the post-
conviction proceedings through which his direct appeal rights were
reinstated, the present appeal is from Appellant’s judgment of sentence.
Accordingly, to withdraw, Attorney Madden must satisfy the more stringent
dictates of Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
We recognize that this Court has accepted an Anders/Santiago brief
in lieu of a Turner/Finley letter, reasoning that Anders/Santiago
“provides greater protection to a defendant” than does Turner/Finley.
Widgins, 29 A.3d at 817 n.2. However, we are aware of no legal authority
suggesting that this Court may accept a Turner/Finley ‘no-merit’ letter in
lieu of an Anders brief.
Moreover, while we acknowledge that Attorney Madden has filed a
brief that seems to substantially comply with Anders/Santiago, the letter
that she sent to Appellant informing him that she is seeking to withdraw is
inadequate in one important regard. Specifically, Attorney Madden informed
Appellant that he has “the right to proceed with [his] appeal pro se or, if [he
is] financially able to do so, hire private counsel of [his] choosing.” Petition
to Withdraw, 3/6/17, at Exhibit E (letter to Appellant dated March 1, 2017).
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Arguably, Attorney Madden’s statement to Appellant would satisfy
Turner/Finley, which requires counsel to, inter alia, “inform the PCRA
petitioner that upon the filing of counsel’s petition to withdraw, the
petitioner-appellant has the immediate right to proceed in the appeal pro se
or through privately-retained counsel.” Commonwealth v. Muzzy, 141
A.2d 509, 512 (Pa. Super. 2016) (emphasis omitted). However, to comply
with Anders/Santiago, counsel must advise the appellant
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, 880 (Pa. Super. 2014)
(emphasis added). Attorney Madden did not inform Appellant of the third
right emphasized above.
Accordingly, Attorney Madden has not satisfied the requirements of
Anders/Santiago and we must deny her petition to withdraw and remand
with the following instructions. See Commonwealth v. Wrecks, 931 A.2d
717, 721 (Pa. Super. 2007) (“If counsel does not fulfill the aforesaid
technical requirements of Anders, this Court will deny the petition to
withdraw as counsel and remand the case with appropriate instructions
(e.g., directing counsel either to comply with Anders or file an advocate’s
brief on [the] [a]ppellant’s behalf).”) (citation omitted). We direct that
Attorney Madden file - within 30 days of the date of this decision - either an
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advocate’s brief on Appellant’s behalf, or a petition to withdraw and brief
that comply with Anders/Santiago. Counsel must include therein a copy
of a letter to Appellant advising him of all three of the rights enumerated
above. Thereafter, we will provide Appellant thirty days, from the date of
Attorney Madden’s letter, within which to respond to counsel’s petition to
withdraw.
Petition to withdraw denied. Case remanded with instructions.
Jurisdiction retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/16/2017
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