Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

COMMONWEALTH PENNSYLVANIA v. DONALD HARRIS (01/20/89)

SUPERIOR COURT OF PENNSYLVANIA


filed: January 20, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
DONALD HARRIS, APPELLANT

Appeal from the PCHA of December 5, 1986 in the Court of Common Pleas of Philadelphia County, Criminal Division, No. 84-09-2252/55.

COUNSEL

Mitchell S. Strutin, Philadelphia, for appellant.

Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.

Brosky, Kelly and Watkins, JJ. Brosky, J., files a concurring opinion.

Author: Kelly

[ 381 Pa. Super. Page 207]

Counsel appointed to represent appellant, Donald Harris, on appeal from an order denying appellant's petition for post-conviction relief, has filed what purports to be an

[ 381 Pa. Super. Page 208]

On May 21, 1985, appellant filed a pro se motion seeking a copy of the transcripts of the prior proceedings. On July 10, 1985, appellant filed a pro se petition under the Post Conviction Hearing Act (PCHA), 42 Pa.C.S.A. § 9541 et seq. Appellant alleged that prior counsel had indicated that if appellant pled guilty, counsel could get appellant a maximum sentence of three years, but if appellant refused to plead guilty, counsel would see to it that appellant received the maximum sentence possible. (PCHA Petition 7/10/85 at 3). On September 11, 1985, however, appellant filed a pro se petition to withdraw his PCHA petition. No reason was given for the withdrawal request.

On September 24, 1985, appellant filed a second pro se PCHA petition. Appellant again sought relief based upon a somewhat embellished allegation which follows verbatim:

I am only (19) yrs. old, at the time of enterting the guilty plea, my Attorney, . . ., only told me that if I went to trial, upon conviction the State would impose a sent. of (20) yrs. upon me; but if I pleaded guilty, he would get me two to three yrs. He didn't inform me that by pleaing guilty, I would waive my Const. righ right, to trial by jury, or the Judge if I chosed. I was'nt aware that any waiver of Const. rights, must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder; possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. In the absent of the following my gulity is invaild, and Counsel, was ineffective, for directing me to plea upon fale false promies. which I did'nt receive.

(PCHA Petition 9/24/85 at 3). The petition was accompanied by a three page typewritten pro se memorandum of law in support of the petition. Appellant indicated that he was without financial resources and requested that the trial court appoint counsel to assist him. (PCHA Petition 9/24/85 at 5-6).

[ 381 Pa. Super. Page 210]

From here the record contains gaps, ambiguities, and apparent contradictions. The portion of the PCHA petition relating to authorization for appointment of counsel is unexecuted and no order appointing counsel is entered on the docket certified to this Court. Nonetheless, beginning January 14, 1986, the trial court's status listings indicate that counsel had been appointed to represent appellant. The status listing for September 18, 1986, indicates that PCHA counsel had received the transcripts of the prior proceedings. On November 13, 1986, the status listing notes, "Possible Finley."*fn1 On December 1, 1986, the status listing notes, "'Finley' disp. Atty. to supplement letter." On December 5, 1986, the final status listing states, "'Finley' Dispo. PCHA Petition is hereby denied." No "Finley" letter or supplement appears in the record certified to this Court. There is no indication in the record that PCHA counsel ever spoke with appellant concerning the petition.

On December 5, 1986, an order was entered denying appellant's unamended pro se PCHA petition. On December 16, 1986, PCHA counsel filed notice of appeal to this Court on behalf of appellant. On December 15, 1986, PCHA counsel filed a "Verified Statement" that on July 26, 1985*fn2 he had been appointed to represent appellant and that appellant's pauper status had not substantially changed since that date. On January 7, 1986, PCHA counsel was permitted to withdraw as counsel for appellant.

On January 13, 1987, new counsel was appointed to represent appellant in his appeal to this Court. He has filed what purports to be an " Anders Brief" and seeks permission to withdraw as counsel. Counsel's Statement of the Case is as follows:

The appellant was arrested and charged in Bills of Information nos. 2252-2255 September Term, 1984 with rape,

[ 381 Pa. Super. Page 211]

    aggravated assault and related offenses. On November 21, 1984, the appellant entered a guilty plea to all charges before the Honorable Thomas Shiomos. On January 31, 1985, the appellant was sentenced to concurrent five to ten year terms for rape (Bill no. 2254) and aggravated assault (Bill no. 2252).

Following sentencing, the appellant did not file a motion to withdraw his guilty plea, a motion to modify sentence or an appeal to this Court. The appellant filed a petition under the Post Conviction Hearing Act contending that his guilty plea was involuntary. The lower court appointed counsel to represent the appellant.

By Order dated December 5, 1986, the lower court denied the appellant relief under the Post Conviction Hearing Act. Prior counsel was permitted to withdraw following the filing of a notice of appeal to this Court. Present counsel was then appointed for purposes of this appeal.

(Anders Brief at 4). The Summary of Argument is, "[a]fter a complete and careful review of the entire record in this matter it is clear that there are no meritorious issues presented and that this appeal is wholly frivolous." The Argument section states:

Appellate counsel has made a complete and careful review of the record in this matter concerning the appellant's entry of a guilty plea to rape, aggravated assault and related offenses. During this review, appellate counsel was mindful of the following issues which might arguably support this appeal:

1. the legality of the sentence.

2. the excessiveness of the sentence.

3. the voluntariness of the guilty plea.

4. the elements of the guilty plea colloquy.

5. the availability of legal defenses to the defendant.

After a review of the record in this matter and the applicable law, appellate counsel can only conclude that no issue of arguable merit exists and that this appeal is wholly frivolous. see Anders v. California, 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] (1967).

[ 381 Pa. Super. Page 212]

Appellate counsel continues to recognize appellant's right to counsel as advocate. Appellate counsel further realizes that he is required, as a result of his conclusions, to seek permission to withdraw as counsel for appellant. In accordance with the mandate of Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981), appellate counsel now informs appellant of the following:

     a. that appellate counsel will be filing a Petition with this Court seeking permission to withdraw;

     b. that a copy of this Brief will be forwarded to him at his last known address; and

     c. that he has the right to retain new counsel or raise any points he may deem worthy of consideration.

(Anders Brief at 6-7). Appellate counsel then concludes, "[f]or the foregoing reasons, it is respectfully requested that this Honorable Court, prior to reaching a decision, make an independent review of the record in this matter." (Anders Brief at 8).

Appellate counsel has filed what purports to be an Anders brief requesting allowance to withdraw as counsel. The Anders brief fails, however, to meet the minimum requisites of Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) for "No Merit Letters" in PCHA proceedings as set forth by this Court in Commonwealth v. Finley, 379 Pa. Super. 390, 393-394, 550 A.2d 213, 215 (1988). Specifically, the purported Anders brief fails to adequately detail counsel's review of the record and fails entirely to list the issues which appellant wished to be reviewed, i.e. that his plea was involuntary as the result of threats alleged to have been made by court-appointed counsel.

In Commonwealth v. Turner, supra, our Supreme Court specifically noted that counsel in Finley, "had presented a 'no-merit' letter detailing the nature and extent of his review and listing each issue the petitioner wished to have raised. . . ." 518 Pa. at 494, 544 A.2d at 928. The Court then proceeded to find the procedures followed in Finley sufficient, implicitly finding that counsel in Turner followed those procedures. In the subsequent opinion of

[ 381 Pa. Super. Page 213]

    this Court in Finley, the majority held that counsel requesting to withdraw in collateral appeal proceedings must, among other things, present "a 'no-merit' letter by PCHA counsel detailing the nature and extent of his review " and listing " each issue the petitioner wished to have raised. . . ." 379 Pa. Superior Ct. at 393, 550 A.2d at 215. Thus, it is apparent that counsel's purported Anders brief does not meet even the relaxed Turner/Finley standard for withdrawal of counsel in collateral appeals. For the reasons which follow, however, we find that denial of the motion to withdraw would serve no valid interest at this stage in the proceedings.

FUNCTIONS OF PCHA COUNSEL

Pennsylvania's PCHA petition is a hybrid statutory creation modified by the effects of state procedural rules promulgated by our Supreme Court. See 42 Pa.C.S.A. §§ 9541 et seq.; Pa.R.Crim.P. 1501-1507. It provides a single vehicle and a uniform procedure whereby all collateral common law remedies, including habeas corpus and corum nobis, may be sought. See Pa.C.S.A. § 9542; see also Commonwealth v. Sheehan, 446 Pa. 35, 285 A.2d 465 (1971). By consolidating and simplifying procedures for collateral review, such relief has become more readily accessible; however, ready access carries the price of inevitable abuse.*fn3 For that reason, Pennsylvania has developed a unique set of procedures which are designed to ensure a full and fair hearing of collateral challenges to convictions

[ 381 Pa. Super. Page 214]

    while at the same time providing protection against abuse of the procedures by piece-meal or repetitive PCHA petitions.*fn4 The lynchpin in these dual purpose procedures is petitioner's counsel.

3

Under Pennsylvania law a PCHA petitioner has the right to the assistance of court appointed counsel if petitioner is indigent, unless "a previous petition involving the same issue or issues has been finally determined adversely to the petitioner and he either was afforded the opportunity to have counsel appointed or was represented in proceedings thereon." See Pa.R.Crim.P. 1503(a); Pa.R.Crim.P. 1504; see also Commonwealth v. Finley, 497 Pa. 332, 334 n. 1, 440 A.2d 1183, 1184 n. 1 (1981); Commonwealth v. Logan, 370 Pa. Super. 348, 349, 536 A.2d 439, 439 (1988); Commonwealth v. Keeney, 367 Pa. Super. 16, 18-21, 532 A.2d 33, 34-35 (1987); Commonwealth v. Sawyer, 355 Pa. Super. 115, 120-21, 512 A.2d 1238, 1240-41 (1986).

Formal appointment of counsel alone, however, is not sufficient to render PCHA proceedings "counseled" so as to permit summary disposition of any subsequent PCHA petition asserting the same claim. This Court has stated on numerous occasions that:

The mandatory appointment of counsel requirement of the Post Conviction Hearing Act is not 4 limited to the mere naming of an attorney to represent an accused, but also envisions that counsel so appointed shall have the opportunity and in fact discharge the responsibilities required by his representation.

Commonwealth v. Davis, 363 Pa. Super. 469, 472, 526 A.2d 440, 441 (1987). "The point in time at which a trial court

[ 381 Pa. Super. Page 215]

    may determine that a PCHA petitioner's claims are frivolous or meritless is after the petitioner has been afforded a full, fair, and counseled opportunity to present those claims." Commonwealth v. Logan, supra, 536 A.2d at 440; citing Commonwealth v. Sawyer, supra. (Emphasis added).

Appointment of counsel serves administrative as well as substantive interests. In Commonwealth v. Mitchell, 427 Pa. 395, 235 A.2d 148 (1967), our Supreme Court explained:

We pause to note that the mandatory appointment requirement is a salutary one and best comports with efficient judicial administration and serious consideration of a prisoner's claims. Counsel's ability to frame the issues in a legally meaningful fashion insures 5 the trial court that all relevant considerations will be brought to its attention. As recognized by the American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Post-Conviction Remedies § 4.4, at 66 (1967) [approved draft 1968]: ' It is a waste of valuable judicial manpower and an inefficient method of seriously treating the substantive merits of applications for post-conviction relief to proceed without counsel for the applicants who have filed pro se. . . . Exploration of the legal grounds for complaint, investigation of the underlying facts, and more articulate statement of claims are functions of an advocate that are inappropriate for a judge, or his staff.'

235 A.2d at 149 (citations omitted, emphasis added); see also Commonwealth v. Sangricco, 490 Pa. 126, 415 A.2d 65 (1980); Commonwealth v. Fiero, 462 Pa. 409, 341 A.2d 448 (1975). In Commonwealth v. Finley, supra, our Supreme Court stated succinctly, "[c]counsel for a PCHA petitioner can more ably explore legal grounds for complaint, investigate underlying facts, articulate claims 6 for relief, and promote efficient administration of justice." 440 A.2d at 1184 (emphasis added); see also Commonwealth v. Holland, 496 Pa. 514, 437 A.2d 1159 (1981).

[ 381 Pa. Super. Page 216]

The importance of court-appointed counsel's role in facilitating the efficient administration of justice cannot be overstated. Left to their own vices, or the dubious assistance of "jail-house lawyers," under-educated prison inmates often file petitions more marked by voluminousness, creativity, and irrelevancy than by lucidity. See e.g. Commonwealth v. Gaito, 277 Pa. Super. 404, 408-09, 419 A.2d 1208, 1211 (1980). Vast judicial resources are then squandered in efforts to decipher and dispose of such submissions.

Court-appointed counsel, on the other hand, may assist the efficient administration of justice by assisting the petitioner to separate the grain from the chaff, i.e. by dissuading the petitioner from filing frivolous claims and by helping petitioner identify, prepare, and present any arguable claims. Counsel can ensure that all arguable claims are presented in a single petition, and also ensure that 7 the petition is presented in an orderly professional manner conducive to meaningful appellate review. In this way, a full and fair hearing is guaranteed to petitioner's claims, while at the same time limited judicial resources are conserved. Cf. Yackle, Post-conviction Remedies § 137 at 517-18 (1981) (discussing the need for counsel in federal habeas corpus proceedings).

WITHDRAWAL OF PCHA COUNSEL

Here, counsel has submitted a purported Anders brief which is so parsimonious with details that this Court was left without any real guidance as to the facts of the case, the relevant procedural history, or the issues which appellant sought to have reviewed. The purported Anders brief plainly fails to meet even the relaxed Turner/Finley "no merit letter" requirements in this respect. Because of the generic, telegraphic nature of the " Anders Brief" submitted, we were obliged to expend a considerable portion of our limited judicial resources duplicating the undocumented review of counsel. See Commonwealth v. Turner, supra, 544 A.2d at 928; Commonwealth v. Finley, supra, 550 A.2d at 215; cf. 8 Penson v. Ohio, U.S. ,

[ 381 Pa. Super. Page 217109]

S.Ct. 346, 102 L.Ed.2d 300 (1988); McCoy v. Court of Appeals of Wisconsin, 486 U.S. , 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988).*fn5 However, though the Anders brief submitted complies with neither the standards previously set forth in Commonwealth v. Green, 355 Pa. Super. 451, 513 A.2d 1008 (1986), nor those subsequently announced in Turner and Finley, we see no valid substantive or administrative justification to further delay disposition of this frivolous appeal.

9

The only issue upon which appellant has sought review, via his prior pro se submissions, is whether alleged coercion by his court-appointed attorney rendered his guilty plea involuntary. Review of the comprehensive plea colloquy reveals that appellant's current allegation of coercion is contradicted by appellant's own sworn statement at the time the plea was entered that his plea was not induced by any coercion. (N.T. 11/21/84 at 6). It has been uniformly held that such claims will not be entertained, as an appellant will not be permitted to contradict his own prior sworn statements at a guilty plea hearing. See e.g. Commonwealth v. Carrillo, 319 Pa. Super. 115, 124-25, 465 A.2d 1256, 1261 (1983).

Given the settled ruling in Carrillo, we have no reluctance to affirm the order denying post-conviction relief on substantive grounds. Our careful and time-consuming review of the record reveals that the evidence against appellant was irrefutable, the guilty plea colloquy was impeccable, and the sentence of imprisonment imposed was manifestly

[ 381 Pa. Super. Page 218]

    appropriate. Trial counsel, the trial court, PCHA counsel, the PCHA court, and appellate counsel all reached the same conclusion.*fn6 Thus, no substantive interest was jeopardized by counsel's non-compliance with the documentation dictates of Turner and Finley.

1

Though administrative interests were clearly prejudiced by counsel's non-compliance with the minimum documentation requisites of Turner and Finley, we find no reason to delay disposition of this frivolous appeal on that basis. The judicial resources needlessly expended as the result of appellate counsel's failure to document his review of the record will not be recouped by prolonging the odyssey of this case through the courts of this Commonwealth. Remand for a new No Merit Letter would elevate form over both substantive and administrative interests and in accordance with the general policy propounded by our Supreme Court in Pa.R.A.P. 105 and Pa.R.Crim.P. 2 & 150 -- we decline to do so.*fn7

2

[ 381 Pa. Super. Page 219]

CONCLUSION

The motion to withdraw is granted; the order denying post-conviction relief is affirmed.

BROSKY, Judge, concurring:

I concur with the decision of my distinguished colleague, Judge Kelly, to affirm the Order of the PCHA court denying appellant relief under the Act. I also would grant counsel for appellant's Motion to withdraw because of the frivolity of the instant appeal.

However, I write separately to express my disagreement with Judge Kelly's conclusion that appellant's " Anders brief" does not comply with the standards set forth by our Supreme Court in Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and adopted as controlling by this Court in Commonwealth v. Finley, 379 Pa. Super. 390, 550 A.2d 213 (1988). Judge Kelly asserts, specifically, that "the purported Anders brief fails to adequately detail counsel's review of the record and fails entirely to list the issues which appellant wished to be reviewed, i.e. [,] that his [appellant's] plea was involuntary as the result of threats alleged to have been made by court-appointed counsel." Majority Opinion 8; emphasis 3 in text. In other words, Judge Kelly finds technical fault in the lack of substance in the wording of issue number three as set forth by counsel in the " Anders Brief," which reads as follows:

3. the voluntariness of the guilty plea.

The Turner "no merit" letter is not to be construed as the functional equivalent of an " Anders Brief." So, while counsel's statement of the issues which could arguably support appellant's appeal might not survive the Anders test, it does, nevertheless, and in my view, fully comply with Turner. In collateral proceedings where counsel seeks to withdraw, Anders is no longer the law to be followed in Pennsylvania.

[ 381 Pa. Super. Page 220]

Inasmuch as the United States Supreme Court decided in Pennsylvania v. Finley, [481] U.S. [551] 107 S.Ct. 1990 [95 L.Ed.2d 539] [1988] that the federal constitutional considerations underlying the tortuous procedures of Anders do not apply under the PCHA, we deem these less rigid requirements for withdrawal of counsel to satisfy Pennsylvania law in collateral attacks on criminal convictions.

Turner, 518 Pa. at 495, 544 A.2d at 929. 4

Thus, any withdrawal of counsel matters in collateral proceedings must now be judged in terms of what is required under Turner and Finley without any further reference to Anders.*fn1

Nonetheless, the majority seeks to fault counsel for failing "to adequately detail counsel's review of the record" in addition to failing "entirely to list the issues which appellant wished to be reviewed" as discussed, supra. Majority Op., 212. Additionally, the majority notes the absence of a "no merit" letter " detailing the nature and extent of his review and listing each issue the petitioner wished to have raised . . . ." Id., quoting Commonwealth v. Turner, 518 Pa. at 494, 544 A.2d at 928; emphasis in text.

Instantly, the " Anders 5 Brief" filed on behalf of appellant, by any other name, fully comports, in my view, with the current state of the law for the withdrawal of court-appointed PCHA counsel. More specifically, I would hold that the Brief filed on behalf of appellant, regardless of the label one chooses to affix to it, possesses all the criteria minimally necessary to meet "the relaxed Turner/Finley standard for withdrawal of counsel in collateral appeals." Majority Op. 213.

In light of the foregoing, I concur in the result.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.