Com. v. Torres-Olan, S.

• Court: Superior Court of Pennsylvania
• Decided: June 23, 2022
• Docket: 1161 WDA 2021
• Status: Unpublished

Opinion

J-S11037-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SANTOS D. TORRES-OLAN : : Appellant : No. 1161 WDA 2021

Appeal from the PCRA Order Entered August 25, 2021 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0001888-2015

BEFORE: PANELLA, P.J., OLSON, J., and SULLIVAN, J.

MEMORANDUM BY SULLIVAN, J.: FILED: JUNE 23, 2022

Santos D. Torres-Olan (“Torres-Olan”) appeals from the order denying

his petition filed pursuant to the Post Conviction Relief Act (“PCRA”).1

Additionally, Torres-Olan’s counsel (“Counsel”) has filed a petition to withdraw

from representation and a “no-merit” brief pursuant Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d

213 (Pa. Super. 1988) (en banc).2 We deny Counsel’s petition to withdraw.

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1 See 42 Pa.C.S.A. §§ 9541-9546.

2 Counsel seeks to withdraw under Anders v. California, 386 U.S. 738 (1967), which applies in direct appeals, not PCRA appeals. “Where counsel seeks to withdraw on appeal from the denial of PCRA relief, a Turner/Finley ‘no-merit letter’ is the appropriate filing. However, because 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. Reed, 107 A.3d 137, 139 n.5 (Pa. Super. 2014) (some quotation marks and brackets omitted). J-S11037-22

In light of our disposition, we do not summarize the complete factual

and procedural history of this appeal. Briefly, following the affirmance of his

judgment of sentence for terroristic threats, firearms not to be carried without

a license, and possession of firearm with altered manufacturer’s number,3

Torres-Olan timely filed a pro se PCRA petition. The PCRA court appointed

counsel (“prior PCRA counsel”), and ultimately held a hearing on April 29,

2021, despite prior PCRA counsel’s filing of a Turner/Finley letter and a

petition to withdraw. The court denied Torres-Olan’s PCRA petition on August

25, 2021, but did not grant prior PCRA counsel leave to withdraw.

Torres-Olan timely filed a pro se notice of appeal. Prior PCRA counsel

took no action as to the appeal, and for reasons not apparent in the record,

present Counsel instead filed a Pa.R.A.P. 1925(b) statement on Torres-Olan’s

behalf. The PCRA court filed a statement in lieu of a Rule 1925(a) opinion

adopting its August 25, 2021 order and opinion denying relief. In this Court,

Counsel has filed a petition to withdraw and a “no-merit” brief.

When presented with Turner/Finley brief, this Court may not review

the merits of the underlying issues without first passing on the request to

withdraw. See Commonwealth v. Knecht, 219 A.3d 689, 691 (Pa. Super.

2019). A Turner/Finley brief must: (1) detail the nature and extent of

3This Court affirmed the judgment of sentence on December 31, 2019, and our Supreme Court denied allowance of appeal on July 13, 2020. See Commonwealth v. Torres-Olan, 225 A.3d 1200 (Pa. Super. 2019), appeal denied, 237 A.3d 385 (Pa. 2020). Torres-Olan filed his pro se PCRA petition on August 3, 2020.

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counsel’s review of the case; (2) list each issue the appellant wishes to have

reviewed; and (3) explain counsel’s reasoning for concluding that the

appellant’s issues are meritless. See id. Counsel must send a copy of the

brief to the appellant, along with a copy of the petition to withdraw, and inform

the appellant of the right to proceed pro se or to retain new counsel. See id.

If the brief meets these requirements, this Court will conduct an independent

review of the appellant’s issues. See id.

Our review of the petition to withdraw and “no-merit” brief reveals that

Counsel substantially complied with Turner/Finley’s procedural requirements

by detailing her review of the case, listing the issue Torres-Olan wished to

raise, and explaining why she believed this appeal to be frivolous. See

Knecht, 219 A.3d at 691; see also Petition for Leave to Withdraw as Counsel,

12/17/21, at 1-2; “No-Merit” Brief at 5, 7, 9. Counsel has also attached to

her petition to withdraw a letter to Torres-Olan advising him of his right to

proceed pro se or with private counsel and stating that she provided him with

a copy of her petition and brief. See Petition for Leave to Withdraw as

Counsel, 12/17/21, at 2 and attachment.

We observe, however, that the transcript of the April 29, 2021 PCRA

hearing is not included in the record, nor are there any indications that

Counsel ordered the transcript. Turner/Finley requires appellate counsel

seeking withdrawal to undertake a full and thorough review of the record. See

Commonwealth v. Karanicolas, 836 A.2d 940, 947 n.11 (Pa. Super. 2003);

cf. Commonwealth v. Flowers, 113 A.2d 1246, 1250 (Pa. Super. 2015)

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(reviewing a petition to withdraw pursuant to Anders and concluding that

neither counsel nor this Court can satisfy Anders if counsel fails to supply this

Court with a complete record). Thus, absent any indication that Counsel

obtained and reviewed the transcript of the PCRA hearing, we cannot conclude

that she fulfilled her obligations pursuant to Turner/Finley, particularly since

Counsel did not represent Torres-Olan at the hearing. See Karanicolas, 836

A.2d at 947 n.11.

Accordingly, we deny Counsel’s petition to withdraw and direct her to

file an advocate’s brief or a new petition to withdraw and Turner/Finley brief

following a review of the complete record. Counsel shall file her new brief in

this Court within thirty days of the date of this memorandum and ensure the

transcript of the PCRA hearing is transmitted to this Court as a supplemental

record.

Petition to withdraw denied. Counsel is directed to file an advocate’s

brief or a new petition to withdraw and Turner/Finley brief consistent with

this memorandum.

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