Com. v. Ferst, V.
Com. v. Ferst v. No. 1007 EDA 2016
| Pa. Super. Ct. | Mar 20, 2017Background
- Vincent Ferst was convicted in 2003 of multiple robberies, conspiracies, and related offenses and received an aggregate sentence of 44.5 to 94 years; after some convictions were vacated, his sentence was amended to 40.5 to 86 years and he was resentenced on March 21, 2013.
- Ferst pursued multiple post-conviction applications (PCRA petitions), including requests to reinstate appellate rights nunc pro tunc; this Court previously found trial counsel ineffective for failing to appeal certain mandatory minimums and remanded for resentencing.
- After the 2013 resentencing, Ferst filed a pro se PCRA petition to reinstate his right to appeal nunc pro tunc; the PCRA court ultimately granted reinstatement in March 2016 and appointed counsel for the direct appeal.
- Appointed appellate counsel filed an Anders brief asserting the appeal was frivolous (identifying only the discretionary-aspect-of-sentence claim as possible), and sought to withdraw, but did not advise Ferst specifically of his immediate right to proceed pro se.
- The Superior Court concluded counsel’s Anders brief otherwise complied with Santiago but found counsel’s client notice defective for failing to inform Ferst of his immediate right to proceed pro se; the Court denied the petition to withdraw without prejudice, ordered counsel either to file an advocate’s brief or a revised Anders brief with proper notice within 30 days, and directed supplementation of the certified record with the 3/21/2013 sentencing transcript.
Issues
| Issue | Plaintiff's Argument (Ferst) | Defendant's Argument (Commonwealth/Counsel) | Held |
|---|---|---|---|
| Timeliness / right to reinstated direct appeal after resentencing | Ferst sought reinstatement nunc pro tunc of direct-appeal rights following resentencing | Commonwealth did not contest reinstatement; PCRA court granted reinstatement | Reinstatement granted; appeal rights reinstated nunc pro tunc (trial court order in certified record absent but appellate record shows relief) |
| Adequacy of counsel’s Anders notice to client | Ferst implicitly relies on counsel providing proper Anders notice to preserve option to proceed pro se or retain counsel | Counsel sent Anders brief and a letter but failed to state Ferst’s immediate right to proceed pro se | Anders brief otherwise adequate, but counsel’s client notice was defective for not informing Ferst of immediate right to proceed pro se; withdrawal denied without prejudice |
| Potential discretionary-aspect-of-sentence claim | Ferst desired to appeal aspects of resentencing (allegedly wants to appeal many steps) | Counsel identified only discretionary-sentencing as arguable but concluded it lacked merit (lower half of guidelines, concurrent sentences, preservation issues, substantial-question requirement) | Court did not assess merits (awaits proper Anders notice or advocate brief) but noted counsel argued frivolousness; independent merits review deferred until Anders-procedural defects cured |
| Counsel withdrawal under Anders/Santiago requirements | Ferst is effectively without counsel once Anders brief filed and must be allowed to proceed pro se if so desired | Counsel complied with Santiago’s Anders content requirements but omitted specific notice of right to proceed pro se in client letter | Withdrawal denied; counsel instructed to either file an advocate’s brief or a revised Anders brief and compliant client notice within 30 days; appellant then given time to file pro se or substituted counsel brief |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967) (framework for counsel withdrawal when briefing appellant’s case as frivolous)
- Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009) (specifies content requirements for Anders briefs in Pennsylvania)
- Commonwealth v. Nischan, 928 A.2d 349 (Pa. Super. 2007) (Anders review must include consideration of any pro se brief and independent appellate review)
- Commonwealth v. Orellana, 86 A.3d 877 (Pa. Super. 2014) (counsel must notify client of right to retain new counsel, proceed pro se, or raise additional points when filing Anders brief)
- Commonwealth v. Goodwin, 928 A.2d 287 (Pa. Super. 2007) (appellate court duty to independently review record after Anders compliance)
- Commonwealth v. Flowers, 113 A.3d 1246 (Pa. Super. 2015) (appellate court must independently search record for nonfrivolous issues)
- Commonwealth v. Dickson, 918 A.2d 95 (Pa. 2007) (holding regarding inapplicability of certain mandatory sentencing enhancement to unarmed co-conspirators)