Com. v. Faison, N.
Com. v. Faison, N. No. 292 MDA 2017
| Pa. Super. Ct. | Jul 13, 2017Background
- Nafis Faison was convicted by a jury of multiple drug and related offenses and sentenced to an aggregate term of 28 months to 8 years; the Superior Court affirmed his judgment of sentence.
- Faison filed a timely, pro se PCRA petition and the PCRA court appointed Attorney Gerald Lynch as counsel and later reassigned Ryan Gardner as conflict counsel.
- Lynch filed a Turner/Finley no‑merit letter and motion to withdraw. The PCRA court treated Lynch’s no‑merit submission as the basis to issue a Rule 907 notice, dismiss the petition, and “grant” Lynch’s withdrawal.
- At the time the court acted, Lynch was no longer counsel of record; Gardner had been appointed and had not filed any Turner/Finley letter, amended petition, or response.
- The Superior Court concluded the PCRA court effectively denied Faison his rule‑based right to counsel and vacated the dismissal, remanding for further proceedings with Gardner to either amend or certify under Turner/Finley after a diligent review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the PCRA court could rely on Attorney Lynch’s Turner/Finley no‑merit letter after counsel had been changed | Faison argued he was deprived of his rule‑based right to counsel because the court relied on Lynch’s filing after Gardner was appointed | Commonwealth argued the court acted properly on the existing no‑merit submission and dismissed the petition | Court held dismissal was improper because Lynch was no longer counsel when the court acted; Faison’s right to counsel was violated |
| Whether appointed counsel (Gardner) was required to file an amended petition or his own Turner/Finley certification | Faison argued Gardner never fulfilled duties of appointed counsel (amend petition or certify lack of merit) | Commonwealth implicitly argued the procedure followed sufficed to dispose of the PCRA petition | Court held Gardner remained counsel and must either amend the petition or comply with Turner/Finley after a diligent review |
| Whether the Turner/Finley procedures can be used absent a pending petition to withdraw | Faison argued Turner/Finley has no role once a counsel change is effective | Commonwealth argued Turner/Finley procedures governed consideration of the no‑merit letter | Court held Turner/Finley applies only in connection with a counsel’s pending petition to withdraw; using Lynch’s letter after reassignment was clear error |
| Remedy for denial of rule‑based right to PCRA counsel | Faison sought vacatur/remand for counsel to properly advocate | Commonwealth sought affirmance of dismissal | Court vacated the dismissal and remanded for Gardner to act (amend or file Turner/Finley) and expressly left substantive claims undetermined |
Key Cases Cited
- Turner v. Commonwealth, 544 A.2d 927 (Pa. 1988) (establishes counsel withdrawal / no‑merit procedures for PCRA counsel)
- Finley v. Commonwealth, 550 A.2d 213 (Pa. Super. 1988) (procedural framework for no‑merit submissions by appointed PCRA counsel)
- Anders v. California, 386 U.S. 738 (1967) (no‑merit brief analogy for documenting counsel’s review)
- Commonwealth v. Albrecht, 720 A.2d 693 (Pa. 1998) (PCRA relief cannot stand unless petitioner had assistance of counsel)
- Commonwealth v. Wrecks, 931 A.2d 717 (Pa. Super. 2007) (describing Turner/Finley duties and court review)
- Commonwealth v. Powell, 787 A.2d 1017 (Pa. Super. 2001) (appointed counsel must amend the petition or certify lack of merit under Finley)
- Commonwealth v. Stossel, 17 A.3d 1286 (Pa. Super. 2011) (court must raise sua sponte denial of counsel for first‑time PCRA petitioners and remand)
- Commonwealth v. Figueroa, 29 A.3d 1177 (Pa. Super. 2011) (recognizing rule‑based right to counsel in first PCRA petitions)