Com. v. Burton, J.
Com. v. Burton, J. No. 1055 EDA 2016
| Pa. Super. Ct. | Apr 7, 2017Background
- Appellant Jhileel Burton appealed the denial of his PCRA petition; counsel filed a no-merit brief characterized as an Anders brief (treated as a Turner/Finley brief).
- Counsel included in the appellate filing an appended petition to withdraw and a letter to Burton advising him of the right to proceed pro se or with private counsel.
- The court could not find a separate certificate of service specifically for the petition to withdraw or the letter to Burton, raising a question whether Burton received proper notice.
- Pennsylvania law requires PCRA counsel seeking to withdraw to provide the petitioner with contemporaneous notice that includes the no‑merit letter and an advisement of the right to proceed pro se or with counsel.
- The Superior Court remanded the record and directed counsel to file a separate petition to withdraw in this Court, certify service of the petition/no‑merit brief/letter on Burton within 14 days, and permitted Burton 30 days to respond; the trial court record was to be remanded for up to 45 days.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel provided adequate, contemporaneous notice to appellant of intent to withdraw under Turner/Finley | Burton (implicitly) contends he did not receive proper notice because no separate certificate of service was of record | Counsel argued notice was provided via appended materials and a general certificate of service for the brief | Court found the record lacked an explicit certificate of service for the petition/letter and ordered counsel to file a separate petition and certify service |
| Whether an Anders brief may be accepted in lieu of a Turner/Finley submission for PCRA withdrawal | Counsel relied on Anders filing (treated as Turner/Finley) and included appendix materials | Court noted Turner/Finley governs PCRA withdrawals but permitted Anders-style brief because it affords greater protection | Court accepted the Anders-style brief conditionally but required procedural compliance (separate petition/certification of service) before withdrawing |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (stands for counsel’s duty to identify arguable issues when seeking to withdraw)
- Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) (procedure governing counsel’s withdrawal from PCRA representation)
- Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc) (procedural requirements for no‑merit filings in post‑conviction proceedings)
- Commonwealth v. Wrecks, 931 A.2d 717 (Pa. Super. 2007) (clarifies that PCRA withdrawal must proceed under Turner/Finley)
- Commonwealth v. Widgins, 29 A.3d 816 (Pa. Super. 2011) (requires contemporaneous notice to petitioner including no‑merit letter and advisement of rights)