Com. v. Holmes, J.

• Court: Superior Court of Pennsylvania
• Decided: March 22, 2024
• Docket: 497 EDA 2023
• Status: Unpublished

Opinion

J-S02011-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOSHUA HOLMES : : Appellant : No. 497 EDA 2023

Appeal from the PCRA Order Entered February 22, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0003018-2010

BEFORE: LAZARUS, P.J., MURRAY, J., and STEVENS, P.J.E.*

JUDGMENT ORDER BY LAZARUS, P.J.: FILED MARCH 22, 2024

Joshua Holmes appeals from the order, entered in the Court of Common

Pleas of Philadelphia County, following the denial of his petition filed pursuant

to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Counsel

has filed a motion to withdraw and an Anders1 Brief. We direct counsel to

comply with the substantive requirements of Turner/Finley.

On October 20, 2023, this Court entered the following per curiam order:

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* Former Justice specially assigned to the Superior Court.

1 A brief filed pursuant to Anders v. California, 386 U.S. 738 (1967), is proper where counsel seeks to withdraw his or her representation in a direct appeal. A Turner/Finley no-merit letter is the appropriate filing in an application to withdraw on collateral review. See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1998) (en banc). However, “[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.” Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011) (citation omitted). J-S02011-24

Appellant’s counsel, George Setrag Yacoubian, Esquire, has erroneously filed a petition to withdraw as counsel and a[n Anders] brief[.]

In light of the fact that Attorney Yacoubian has not attached to his petition to withdraw as counsel a copy of the letter mailed to Appellant informing him of his right to retain new counsel or proceed pro se in this appeal nor provided proof of service of the “Motion To Withdraw As Counsel” and “Anders Brief” upon Appellant, Attorney Yacoubian is DIRECTED to, within fourteen (14) days of the date that this Order is filed, provide copies of counsel’s July 17, 2023 “Motion To Withdraw As Counsel” and “Anders Brief” to Appellant, provide written notice to the Prothonotary of this Court that counsel has complied, and to file with the Prothonotary of this Court seven (7) copies of a letter addressed to Appellant advising him of his immediate right to proceed pro se or with privately retained counsel. See Commonwealth v. Friend, 896 A.2d 607 (Pa. Super. 2006) (providing that counsel must contemporaneously serve a copy of counsel’s application to withdraw on the petitioner and must supply to the petitioner both a copy of the no-merit letter and a statement advising the petitioner that the petitioner has the right to proceed pro se or with the assistance of privately retained counsel), abrogated on other grounds by Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009); Commonwealth v. Muzzy, 141 A.3d 509 (Pa. Super. 2016) (clarifying that counsel’s letter to the client shall inform the PCRA petitioner that upon the filing of the petition to withdraw, the client has the immediate right to proceed in the appeal pro se or through privately retained counsel).

Per Curiam Order, 10/20/23. The filing deadline, November 3, 2023, passed.

The Commonwealth filed its brief on November 14, 2023, asserting Attorney

Yacoubian had failed to comply with this Court’s order. On November 19,

2023, Attorney Yacoubian filed with this Court a copy of a letter addressed to

Holmes, stating that counsel was enclosing a copy of his Anders brief and

motion to withdraw, that he believed Holmes’ claims were meritless, and that

Holmes could proceed pro se or with privately retained counsel. Thus, counsel

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substantially complied, albeit belatedly, with the procedural requirements of

Turner/Finley.

However, the Commonwealth, in its brief, noted that counsel’s Anders

brief did not comply with the substantive requirements of Turner/Finley,

namely, counsel failed to explain “why the petitioner’s issues were meritless.”

Finley, 550 A.2d at 215. We agree.

As reiterated by our Supreme Court, the standards counsel must

observe when requesting to withdraw include the following:

1) A “no-merit” letter by PC[R]A counsel detailing the nature and extent of his review;

2) The “no-merit” letter by PC[R]A counsel listing each issue the petitioner wished to have reviewed;

3) The PC[R]A counsel’s “explanation,” in the “no-merit” letter, of why the petitioner’s issues were meritless[.]

Commonwealth v. Pitts, 981 A.2d 875, 876 (Pa. 2009), quoting Finley,

supra at 215 (emphasis added).

Here, counsel provides no explanation, merely noting he “believes” the

claims are meritless and “there is nothing to substantiate” the claims. See

Anders Brief, at 6. Counsel has not detailed the nature and extent of his

review of the case or “explain[ed] why and how [the issues Holmes] wants to

have reviewed [] lack merit[.]” Commonwealth v. Walters, 135 A.3d 589,

591 (Pa. Super. 2016) (citation omitted). This falls short of what is required

by PCRA counsel. After careful consideration, we decline to overlook counsel’s

omission in light of established case law on the proper collateral withdrawal

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procedure and the precept that PCRA counsel seeking to withdraw “must

review the case zealously.” Id. (citation omitted). See also

Commonwealth v. Karanicolas, 836 A.2d 940, 945-47 (Pa. Super. 2003);

Commonwealth v. Glover, 738 A.2d 460, 464-65 (Pa. Super. 1999).

We, therefore, direct counsel to file a no-merit letter, within twenty (20)

days, in compliance with the substantive requirements of Turner/Finley. The

Commonwealth’s responsive brief is due within fourteen (14) days of the filing

of counsel’s Turner/Finley no-merit letter. Panel jurisdiction retained.

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