Com. v. Gordon, J.
1959 MDA 2015
| Pa. Super. Ct. | Dec 8, 2016Background
- Appellant Jody Gordon pled guilty on July 9, 2014 to possession with intent to deliver and was sentenced July 29, 2014 to 2½ to 5 years’ imprisonment.
- Gordon filed a timely pro se PCRA petition on February 5, 2015 and an amended petition on July 31, 2015; counsel was later appointed and a hearing held.
- The PCRA court denied relief on October 23, 2015; Gordon appealed and complied with a Pa.R.A.P. 1925(b) order.
- Appellate counsel filed a Turner/Finley “no‑merit” brief addressing only one claim (trial counsel allegedly promising a concurrent sentence) and sought to withdraw, while notifying Gordon of his rights.
- Gordon filed a pro se response asserting counsel failed to address additional ineffective‑assistance claims (failure to move to dismiss for prejudicial pre‑arrest delay; failure to provide discovery; failure to advise about an alibi defense; failure to challenge a mandatory minimum; failure to file post‑sentence motion/direct appeal).
- The Superior Court found counsel’s filing did not comply with Turner/Finley technical requirements because it omitted the other issues Gordon raised, denied counsel’s withdrawal request, and remanded for counsel to file either an advocate’s brief or a compliant Turner/Finley brief addressing those issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellate counsel complied with Turner/Finley technical requirements for withdrawing | Gordon: counsel failed to list and analyze all issues raised in his PCRA petition | Counsel: filed a Turner/Finley brief addressing the one perceived weakest issue and notified Gordon of rights | Court: counsel failed to meet Turner/Finley requirements; petition to withdraw denied and case remanded for compliant brief or advocate brief |
| Whether appellate counsel adequately addressed the ineffective‑assistance claim about a promised concurrent sentence | Gordon: asserts trial counsel promised concurrent sentence (ineffective assistance) | Counsel: addressed that claim and explained it lacked merit in the no‑merit brief | Court: did not resolve merits on appeal because procedural Turner/Finley deficiency required addressing all preserved issues; counsel may still brief the merits on remand |
| Whether counsel failed to address multiple other trial‑counsel ineffectiveness claims (pre‑arrest delay, discovery, alibi, mandatory minimum, post‑sentence motion/direct appeal) | Gordon: these issues were raised in his PCRA petition and should be reviewed | Counsel: did not include these issues in the Turner/Finley submission | Court: remanded and directed counsel to address these specific claims in an amended brief or file an advocate’s brief |
Key Cases Cited
- Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) (establishes procedure for counsel seeking to withdraw in collateral appeals)
- Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc) (further defines no‑merit brief requirements in PCRA contexts)
- Commonwealth v. Karanicolas, 836 A.2d 940 (Pa. Super. 2003) (explains Turner/Finley procedural prerequisites for withdrawal)
- Commonwealth v. Wrecks, 931 A.2d 717 (Pa. Super. 2007) (requires counsel to satisfy Turner/Finley technical prerequisites or court will deny withdrawal and direct corrective steps)