Com. v. Cruz, T.

• Court: Superior Court of Pennsylvania
• Decided: April 17, 2023
• Docket: 733 MDA 2022
• Status: Unpublished

Opinion

J-S44029-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TONY CRUZ : : Appellant : No. 733 MDA 2022

Appeal from the PCRA Order Entered April 20, 2022 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0001341-2019

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TONY CRUZ : : Appellant : No. 734 MDA 2022

Appeal from the PCRA Order Entered April 20, 2022 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0002370-2019

BEFORE: PANELLA, P.J., McLAUGHLIN, J., and PELLEGRINI, J.*

MEMORANDUM BY McLAUGHLIN, J.: FILED: APRIL 17, 2023

Tony Cruz appeals from the order denying his petition for relief pursuant

to the Post Conviction Relief Act (“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546.

Cruz’s counsel has filed a motion to withdraw. We deny the motion to

withdraw, with instructions to counsel.

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* Retired Senior Judge assigned to the Superior Court. J-S44029-22

On April 20, 2022, the PCRA court denied Cruz’s first PCRA petition. Cruz

had counsel during the proceeding, but filed the instant timely appeal pro se.

The PCRA court appointed Christopher Lyden, Esquire as appellate counsel,

and he filed a concise statement of errors complained of on appeal. See

Pa.R.A.P. 1925(b). Lyden then filed a motion to withdraw as counsel asserting

that “that appellant’s claim is frivolous and that there are no non-frivolous

issue [sic] to purse [sic] on his behalf.” Motion to Withdraw, filed Oct. 20,

2022, at 1 (unpaginated). Lyden did not submit a Turner/Finley1 letter at

that time.

This Court issued an order on October 24, 2022, stating that Attorney

Lyden had failed to attach to his withdrawal petition a letter informing Cruz of

his immediate right to proceed pro se or with a private attorney. We directed

counsel to provide Cruz with such a letter and file a copy of it with this Court

within ten days. Counsel did as instructed.

Approximately 12 days later, Attorney Lyden filed a brief styled as “Brief

for Appellant.” The brief was not titled as an Anders2 brief or Turner/Finley

letter, nor did it cite either case, but claimed that Cruz’s claims were frivolous

and there were no other non-frivolous issues to raise.

The proper filing in this case would be a Turner/Finley no-merit letter,

as counsel wishes to withdraw on an appeal denying PCRA relief. See ____________________________________________

1 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

2 See Anders v. California, 386 U.S. 738 (1967).

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Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa.Super. 2011).

Although counsel’s brief is not titled as an Anders brief, we conclude that

counsel intended to file an Anders brief since he alleges that the issues are

frivolous, rather than meritless. In any event, “[b]ecause an Anders brief

provides greater protection to a defendant, this Court may accept an Anders

brief in lieu of a Turner/Finley letter.” Widgins, 29 A.3d at 817 n.2. Thus,

we analyze whether counsel’s brief meets the standards of Turner/Finley.

A Turner/Finley brief must: (1) detail the nature and extent of

counsel’s review; (2) list each issue the petitioner wishes to have reviewed;

and (3) provide an explanation of why the petitioner’s issues are meritless.

Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009). Counsel also

must contemporaneously send to the petitioner a copy of the “no-merit”

letter/brief, a copy of counsel’s petition to withdraw, and a statement advising

petitioner of the right to proceed pro se or with new counsel. Widgins, 29

A.3d at 818. “If counsel fails to satisfy the foregoing technical prerequisites of

Turner/Finley, the court will not reach the merits of the underlying claims

but, rather, will merely deny counsel’s request to withdraw.” Commonwealth

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

Here, we find that counsel has not fully complied with the requirements

of Turner/Finley. Counsel detailed his review of the record and concluded

that Cruz’s claims are meritless. He also advised Cruz of his right to retain

new counsel or proceed pro se. However, there is no indication in the record

that counsel sent a copy of his motion to withdraw on Cruz, as required by the

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dictates of Turner/Finley and its progeny. The certificate of service attached

to counsel’s motion to withdraw only indicates that it was served on the

Commonwealth.

Moreover, counsel’s letter only states that a copy of the no-merit

letter/brief is attached but makes no mention of whether a copy of the motion

to withdraw was sent to Cruz.3 Since PCRA counsel has failed to satisfy the

technical prerequisites of Turner/Finley, we deny counsel’s request to

withdraw. Counsel shall file either a proper petition to withdraw and a brief

that fulfills the requirements of Turner/Finley, or an advocate’s brief within

30 days of the date of this Memorandum. If counsel determines to file a

Turner/Finley brief, counsel shall contemporaneously send to Cruz a copy of

the “no-merit” letter/brief, a copy of his petition to withdraw, and a statement

advising Cruz of his right to proceed pro se or with new counsel.

Application to withdraw as counsel denied. Jurisdiction retained.

3 Furthermore, while counsel’s letter indicates that the brief was attached to the letter, we are uncertain that it was, in fact, attached because it was not filed as an attachment to the letter. Indeed, the certificate of service attached to the brief indicates that it was only served on the Commonwealth, with no mention of service on Cruz.

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