Com. v. Burks, R.

• Court: Superior Court of Pennsylvania
• Decided: March 12, 2018
• Docket: 725 WDA 2016
• Status: Unpublished

Opinion

J-S13001-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : ROBERT BURKS : : Appellant : No. 725 WDA 2016

Appeal from the PCRA Order January 13, 2016 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0012434-2008

BEFORE: GANTMAN, P.J., SHOGAN, J., and MUSMANNO, J.

JUDGMENT ORDER BY GANTMAN, P.J.: FILED MARCH 12, 2018

Appellant, Robert Burks, appeals from the order entered in the

Allegheny County Court of Common Pleas, which denied his second petition

filed under the Post Conviction Relief Act at 42 Pa.C.S.A. §§ 9541-9546.

Preliminarily, counsel has filed a brief/motion to withdraw as counsel,

purportedly under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18

L.Ed.2d 493 (1967) and its progeny. In the context of a PCRA petition and

request to withdraw, however, the appropriate filing is a “no-merit”

letter/brief. Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988);

Commonwealth v. Finley, 550 A.2d 213 (1988). But see Commonwealth

v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa.Super. 2004), appeal denied,

584 Pa. 691, 882 A.2d 477 (2005) (stating Superior Court can accept Anders

brief in lieu of Turner/Finley letter, where PCRA counsel seeks to withdraw J-S13001-18

on PCRA appeal). Before counsel can withdraw representation under the

PCRA, “Pennsylvania law requires counsel to file and obtain approval of a ‘no-

merit’ letter pursuant to the mandates of Turner/Finley.” Commonwealth

v. Karanicolas, 836 A.2d 940, 947 (Pa.Super. 2003) (emphasis in original).

Similar to the Anders situation, Turner/Finley counsel must review the case zealously. Turner/Finley counsel must then submit a “no-merit” letter to the trial court, or brief on appeal to this Court, detailing the nature and extent of counsel’s diligent review of the case, listing the issues which the petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw.

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007). Counsel

must contemporaneously serve on Appellant copies of the “no-merit” letter or

brief, the motion to withdraw, plus a statement advising Appellant that he has

the right to file a brief in this Court pro se or with new privately-retained

counsel. See id. If counsel fails to satisfy the technical prerequisites of

Turner/Finley, we generally deny withdrawal and remand for counsel to take

the appropriate steps to satisfy Turner/Finley or file an advocate’s brief,

depending on the case circumstances. Id. To withdraw, counsel must assure

this Court of the substantial compliance with these technical requirements.

Commonwealth v. Muzzy, 141 A.3d 509 (Pa.Super. 2016).

Instantly, counsel’s motion to withdraw correctly states Appellant has

the right to retain new counsel or proceed pro se with this appeal to raise any

additional points Appellant deems worthy of review. (See Motion to Withdraw

as Counsel, filed 12/29/17, ¶24.) Nevertheless, the copy of the letter counsel

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attached to the motion misstates Appellant’s rights in paragraph three, which

asserts: “In the probable event that the Superior Court grants my motion to

withdraw as your counsel, you have the right to proceed with your appeal on

your own without counsel, or you can retain counsel to assist you with this

appeal.” (See Letter attached to Motion to Withdraw as Counsel, dated

12/29/17, ¶3.) This language erroneously advises Appellant that he can act

only “in the probable event” this Court lets counsel withdraw; thus, the letter

“improperly conveys to Appellant the conclusion that he cannot proceed pro

se or by privately retained counsel unless, and until, this Court rules on

counsel's withdrawal request.” That advice is flawed. See Muzzy, supra

(stating: “In the case sub judice, counsel utilized language that is peculiar to

the procedure at the common pleas court level when counsel seeks to

withdraw, without adjusting it to the posture of the case at the appellate level.

By advising Appellant that he may proceed either pro se or with private

counsel only if, and after, we grant counsel’s [request] to withdraw, Appellant

will lose the very right that counsel is obligated to inform her client that he

retains”). Instead, Appellant is entitled to proceed pro se or retain private

counsel as soon as counsel files a withdrawal motion and notifies Appellant

of counsel’s intent to withdraw. Although counsel’s brief and motion to

withdraw substantially comply with the technical requirements of

Turner/Finley, the advice in counsel’s letter does not. See generally

Commonwealth v. Woods, 939 A.2d 896 (Pa.Super. 2007) (explaining this

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Court must evaluate counsel’s letter to appellant to determine whether letter

adds to, subtracts from, or conflicts with motion). Because counsel’s letter

to Appellant conflicts with the motion to withdraw, in that the letter misstates

Appellant’s rights, the letter renders counsel’s effort to withdraw defective.

Accordingly, we deny counsel’s motion to withdraw and direct counsel

to (a) re-file an amended withdrawal motion in this Court, within ten days of

the filing date of this decision; (b) contemporaneously resend a copy of a

properly designated appellate brief and revised motion to Appellant; and (c)

attach an amended letter to the amended motion, advising Appellant correctly

of his immediate right to proceed pro se or with privately retained counsel

and file a brief raising any additional points Appellant deems worthy of review.

Motion to withdraw as counsel denied; case remanded with instructions.

Panel jurisdiction is retained.

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