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[U] Commonwealth v. Thomas

Superior Court of Pennsylvania

July 23, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
DAVID THOMAS, Appellant COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
DAVID THOMAS, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order Entered March 5, 2012 In the Court of Common Pleas of Potter County Criminal Division at No(s): CP-53-CR-0000160-2008, CP-53-CR-0000156-2008.

BEFORE: BENDER, J., LAZARUS, J., and STRASSBURGER, J.[*]

MEMORANDUM

LAZARUS, J.

David Thomas appeals from the trial court's order denying his petition, following a hearing, filed pursuant to the Post Conviction Relief Act[1] (PCRA). Thomas tendered a guilty plea to three counts of Rape of a Child, [2] a first-degree felony, and was sentenced to serve an aggregate term of 30 to 60 years in prison. On appeal, Thomas's counsel also seeks to withdraw. Upon review, we deny counsel's request to withdraw and remand for counsel to file a brief in compliance with Turner/Finley or to file an advocate's brief.

Although Counsel seeks to withdraw pursuant to Anders, [3] a request to withdraw from PCRA representation must properly be made pursuant to Turner/Finley.[4] See Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007).[5] Before we can address the merits of the case, we must first determine if Counsel satisfied the technical requirements of Turner/Finley. Commonwealth v. Mosteller, 633 A.2d 615, 617 (Pa. Super. 1993).

In order for counsel to withdraw from an appeal pursuant to Turner/Finley, counsel must submit a "no-merit" letter/brief that includes a description of the nature and extent of counsel's review, a list of the issues the petitioner wished to raise, and an explanation of why those issues lack merit. See Commonwealth v. Karanicolas, 836 A.2d 940, 947 (Pa. Super. 2003). Counsel must also send to the appellant: (1) a copy of counsel's "no-merit" letter/brief; and (2) a statement advising the appellant that, in the event the court grants counsel's application to withdraw, he or she has the right to proceed pro se or with privately retained counsel. Commonwealth v. Friend, 896 A.2d 607, 615 (Pa. Super. 2006). If counsel fails to satisfy the foregoing technical requirements of Turner/Finley, this Court will not reach the merits of the underlying claims but, rather, will deny counsel's request to withdraw and remand the case with appropriate instructions. Mosteller, supra at 617.

Instantly, the record is devoid of any evidence that Thomas's Counsel ever provided Thomas a copy of his no-merit brief or advised Thomas of his right to proceed pro se or retain private counsel. Therefore, we must remand with instructions that counsel comply with Turner/Finley and Friend or file an advocate's brief. Mosteller, supra.

Request to withdraw denied. Case remanded for counsel to file either a Turner/Finley brief/letter or an advocate's brief within 30 days of the date of the filing of this memorandum. Jurisdiction retained.[6]


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