Com. v. Brown, J.

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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 (Footnote Continued Next Page) J-S48018-14

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

____________________________________________

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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