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[U] Commonwealth v. Shaffer

Superior Court of Pennsylvania

September 5, 2013

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
ROBERT L. SHAFFER, JR. Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Order Entered May 24, 2012 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0001753-2004

BEFORE: GANTMAN, J., ALLEN, J., and MUNDY, J.

JUDGMENT ORDER

GANTMAN, J.

Appellant, Robert L. Shaffer, Jr., appeals from the order entered in the Luzerne County Court of Common Pleas, dismissing his first petition brought pursuant to the Post Conviction Relief Act ("PCRA").[1] As a preliminary matter, counsel has filed a motion to withdraw.[2] "Before an attorney can be permitted to withdraw from representing a petitioner under the PCRA, Pennsylvania law requires counsel to file and obtain approval of a 'no-merit' letter pursuant to the mandates of Turner/Finley." Commonwealth v. Karanicolas, 836 A.2d 940, 947 (Pa.Super. 2003) (emphasis in original).

[C]ounsel must…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.

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007). Counsel must also send to the petitioner a copy of the "no-merit" letter or brief and motion to withdraw and advise the petitioner of his right to proceed pro se or with new counsel. Id.

Instantly, counsel filed a Turner/Finley brief on appeal (notwithstanding its designation as an Anders brief) and a motion to withdraw as counsel. Counsel listed the issue Appellant wished to raise and explained why the issue merits no relief. Counsel has indicated that he sent Appellant a copy of the brief. Nothing in the record or in the materials filed with this Court, however, indicates counsel advised Appellant of his right to proceed pro se or with privately-retained counsel. See Wrecks, supra (reiterating requirement that counsel must contemporaneously serve upon client "no-merit" letter, counsel's application to withdraw, and statement advising his client that he can proceed pro se or with privately-retained attorney). Accordingly, we hereby direct counsel to amend, and re-file with this Court, counsel's withdrawal motion, within ten (10) days of the filing date of this directive, and attach to that amended motion a copy of the letter counsel sent to Appellant, correctly advising Appellant of his immediate right to proceed with privately retained counsel or to file a pro se brief to raise any additional points Appellant deems worthy of review. Panel jurisdiction is retained.


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