Com. v. Colon, A., Jr.
422 MDA 2017
| Pa. Super. Ct. | Dec 5, 2017Background
- Ariel Colon, Jr. was convicted of aggravated assault, recklessly endangering another person, and simple assault and sentenced to an aggregate 9 to 20 years’ imprisonment.
- This Court affirmed Colon’s judgment of sentence on direct appeal; no further review was sought from the Pennsylvania Supreme Court.
- Colon filed a pro se PCRA petition alleging trial counsel was ineffective; counsel was appointed and an amended PCRA petition was filed.
- An evidentiary PCRA hearing was held on January 19, 2017; the PCRA court denied relief on February 2, 2017.
- PCRA counsel later filed a Turner/Finley (Anders-style) no-merit letter and petition to withdraw, and sought leave to withdraw from representation on appeal.
- The Superior Court found the record incomplete because the notes of testimony from the January 19, 2017 PCRA hearing were not transcribed, so counsel could not have reviewed the full record for non-frivolous issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appointed PCRA counsel may withdraw under Turner/Finley without a complete trial/hearing transcript | Colon argued counsel was ineffective; PCRA counsel submitted no-merit letter seeking withdrawal | PCRA counsel contended the case presented no non-frivolous issues and filed an Anders-style brief/no-merit letter | Court denied counsel’s petition to withdraw because the PCRA hearing transcript was missing, preventing adequate review for non-frivolous issues |
| Whether an Anders brief may substitute for a Turner/Finley letter in PCRA context | Not directly urged by Colon | PCRA counsel filed an Anders-style brief in lieu of a Turner/Finley letter | Court noted an Anders brief is acceptable in place of a Turner/Finley letter but counsel still must provide a complete record |
| Whether the Superior Court could review counsel’s no-merit filing on an incomplete record | Colon: N/A (benefits from full review) | PCRA counsel proceeded despite missing transcript | Court concluded it could not satisfy Turner/Finley duties without the missing notes of testimony and remanded for completion of the record |
| Remedy when record is incomplete for withdrawal request | Colon: entitlement to a proper review | PCRA counsel: sought withdrawal despite incomplete record | Court denied leave to withdraw and remanded, instructing counsel to obtain the missing transcript and then file an advocate’s brief or a new Turner/Finley filing |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (requires counsel who seeks to withdraw to submit a brief showing the case is frivolous and a copy to the defendant)
- Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) (establishes Pennsylvania procedure for counsel seeking to withdraw in collateral appeals)
- Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc) (clarifies Turner procedure for PCRA counsel filing no-merit petitions)
- Commonwealth v. Flowers, 113 A.3d 1246 (Pa. Super. 2015) (denied counsel’s withdrawal where the record lacked necessary transcripts to permit a proper Anders/Turner review)
- Commonwealth v. Fusselman, 866 A.2d 1109 (Pa. Super. 2004) (recognizes an Anders brief may be accepted in lieu of a Turner/Finley letter because it affords greater protection)
- Commonwealth v. Colon, 134 A.3d 500 (Pa. Super. 2015) (appellate decision affirming Colon’s judgment of sentence)