Com. v. Sisco, J.

Opinion

J-S78045-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA v.

JERROLD SISCO

Appellant No. 987 WDA 2016

Appeal from the PCRA Order June 28, 2016 in the Court of Common Pleas of Jefferson County Criminal Division at No(s): CP-33-CR-0000402-2012

BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD,* J.

JUDGMENT ORDER BY FITZGERALD, J.: FILED OCTOBER 28, 2016

Appellant, Jerrold Sisco, appeals from the order of the Jefferson

County Court of Common Pleas denying his Post Conviction Relief Act1

petition. Appellant’s counsel, George N. Dagnir, Esq., has filed a petition to

withdraw representation pursuant to Anders v. California, 386 U.S. 738

(1967).2

* Former Justice specially assigned to the Superior Court. 1 42 Pa.C.S. §§ 9541-9546. 2 We note that in Commonwealth v. Wrecks, 931 A.2d 717 (Pa. Super. 2007), this Court explained the standard for withdrawal of counsel on collateral review.

Counsel petitioning to withdraw from PCRA representation must proceed not under Anders but under Commonwealth v. Turner, [ ] 544 A.2d 927 ([Pa.] 1988), and Commonwealth v. Finley, [ ] 550 A.2d 213 ([Pa. Super.] 1988). Similar to the Anders situation, Turner/Finley counsel must review the case zealously. J-S78045-16

The facts are unnecessary for our disposition. The relevant procedural

history of this case as stated by the PCRA court is as follows:

When [Appellant] filed a document specifically requesting PCRA relief on December 16, 2015, the [c]ourt treated it as an amendment to the unanswered [pro se] Motion for Discovery and to Produce Transcripts he had filed on July 12, 2013, which was well within the PCRA’s

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.

Counsel must also send to the petitioner: (1) a copy of the “no-merit” letter/brief; (2) a copy of counsel’s petition to withdraw; and (3) a statement advising petitioner of the right to proceed pro se or by new counsel.

* * *

It is thus apparent that Anders and Turner/Finley are close cousins, bearing similarities in that counsel is required to examine the record, present issues, and request permission to withdraw. However, there are also significant differences. Anders applies to direct appeals; Turner/Finley applies to PCRA cases. Anders counsel is not permitted to withdraw unless the appeal is wholly frivolous, but Turner/Finley counsel is permitted to do so if the case lacks merit, even if it is not so anemic as to be deemed wholly frivolous. Also, Anders counsel must not argue against the client’s interests while Turner/Finley counsel must do so, articulating why the client’s claims have no merit.

Id. at 721–22 (some citations omitted).

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statute of limitations. PCRA counsel filed an additional amendment on March 10, 2016, and the court convened a hearing on May 31, 2016 to entertain [Appellant’s] ineffective assistance of counsel claims.

PCRA Ct. Op., 6/28/16, at 1. The PCRA court denied the petition and this

appeal followed. Counsel filed a statement of intent to file an Anders brief

pursuant to Pa.R.A.P. 1925(c)(4).

In his Anders brief, counsel states that “[a]t the time of preparing the

within brief PCRA Counsel was not in possession of the transcripts of the

PCRA evidentiary hearing held May 31, 2016, despite filing a request for

same at the time of filing the notice of appeal.” Anders Brief at 6.3

However, the notes of testimony from the PCRA hearing are in the certified

record on appeal.4

We direct counsel to comply with the Turner/Finley requirements.

Upon further review of the record, if counsel finds a meritorious issue, an

advocate’s brief may be filed. We order the Prothonotary to enter a new

briefing schedule.

Petition to withdraw denied without prejudice. Panel jurisdiction

retained.

3 The Commonwealth did not file a brief. 4 We note that counsel requested the notes of testimony on July 6, 2016. On July 14, 2016, the notes of testimony from May 31, 2016 were filed. The Anders brief was filed on August 11, 2016.

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