COMMONWEALTH of Pennsylvania v. Donald HARRIS, Appellant.
Superior Court of Pennsylvania.
Submitted June 22, 1987. Filed Jan. 20, 1989.
553 A.2d 428
Judgments of Sentence affirmed.
Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
Before BROSKY, KELLY and WATKINS, JJ.
KELLY, Judge:
Counsel appointed to represent appellant, Donald Harris, on appeal from an order denying appellant‘s petition for post-conviction relief, has filed what purports to be an
FACTS AND PROCEDURAL HISTORY
On November 21, 1984, following an impeccable guilty plea colloquy, appellant entered an open guilty plea to rape, indecent assault, aggravated assault, simple assault and unlawful restraint charges. The factual basis for the plea was that on September 10, 1984, appellant had raped and beaten the female victim in an alley near 38th Street and Haverford Avenue in Philadelphia. A male friend of the victim happened upon the scene and intervened. Appellant attempted to flee but was apprehended by the victim and her friend and held until police arrived. Appellant acknowledged his intent to enter his plea based upon the prosecution‘s summary of the evidence, and then the court announced its acceptance of the plea. Appellant was informed by the trial court that he had ten days to seek withdrawal of his guilty plea. (N.T. 11/21/84 at 2-13). On January 31, 1985, appellant was sentenced to two concurrent terms of five to ten years imprisonment on the rape and aggravated assault convictions; sentence on the remaining convictions was suspended. Appellant was informed by the trial court that he had ten days in which to file a motion to modify sentence and thirty days in which to file notice of appeal. (N.T. 1/31/85 at 2-5).
On April 9, 1985, appellant filed an untimely pro se motion to withdraw his guilty plea. Appellant alleged that he was innocent and that court-appointed counsel had scared him into pleading guilty. The motion was denied April 11, 1985.
On September 24, 1985, appellant filed a second pro se PCHA petition. Appellant again sought relief based upon a somewhat embellished allegation which follows verbatim:
I am only (19) yrs. old, at the time of enterting the guilty plea, my Attorney, ... , only told me that if I went to trial, upon conviction the State would impose a sent. of (20) yrs. upon me; but if I pleaded guilty, he would get me two to three yrs. He didn‘t inform me that by pleaing guilty, I would waive my Const. righ right, to trial by jury, or the Judge if I chosed. I was‘nt aware that any waiver of Const. rights, must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder; possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. In the absent of the following my gulity is invaild, and Counsel, was ineffective, for directing me to plea upon fale false promies. which I did‘nt receive.
(PCHA Petition 9/24/85 at 3). The petition was accompanied by a three page typewritten pro se memorandum of law in support of the petition. Appellant indicated that he was without financial resources and requested that the trial court appoint counsel to assist him. (PCHA Petition 9/24/85 at 5-6).
From here the record contains gaps, ambiguities, and apparent contradictions. The portion of the PCHA petition relating to authorization for appointment of counsel is unexecuted and no order appointing counsel is entered on the docket certified to this Court. Nonetheless, beginning January 14, 1986, the trial court‘s status listings indicate that counsel had been appointed to represent appellant. The status listing for September 18, 1986, indicates that PCHA counsel had received the transcripts of the prior proceedings. On November 13, 1986, the status listing notes, “Possible Finley.”1 On December 1, 1986, the status listing notes, “‘Finley’ disp. Atty. to supplement letter.” On December 5, 1986, the final status listing states, “‘Finley’ Dispo. PCHA Petition is hereby denied.” No “Finley” letter or supplement appears in the record certified to this Court. There is no indication in the record that PCHA counsel ever spoke with appellant concerning the petition.
On December 5, 1986, an order was entered denying appellant‘s unamended pro se PCHA petition. On December 16, 1986, PCHA counsel filed notice of appeal to this Court on behalf of appellant. On December 15, 1986, PCHA counsel filed a “Verified Statement” that on July 26, 19852 he had been appointed to represent appellant and that appellant‘s pauper status had not substantially changed since that date. On January 7, 1986, PCHA counsel was permitted to withdraw as counsel for appellant.
On January 13, 1987, new counsel was appointed to represent appellant in his appeal to this Court. He has filed what purports to be an ”Anders Brief” and seeks permission to withdraw as counsel. Counsel‘s Statement of the Case is as follows:
The appellant was arrested and charged in Bills of Information nos. 2252-2255 September Term, 1984 with rape,
aggravated assault and related offenses. On November 21, 1984, the appellant entered a guilty plea to all charges before the Honorable Thomas Shiomos. On January 31, 1985, the appellant was sentenced to concurrent five to ten year terms for rape (Bill no. 2254) and aggravated assault (Bill no. 2252).
Following sentencing, the appellant did not file a motion to withdraw his guilty plea, a motion to modify sentence or an appeal to this Court. The appellant filed a petition under the Post Conviction Hearing Act contending that his guilty plea was involuntary. The lower court appointed counsel to represent the appellant.
By Order dated December 5, 1986, the lower court denied the appellant relief under the Post Conviction Hearing Act. Prior counsel was permitted to withdraw following the filing of a notice of appeal to this Court. Present counsel was then appointed for purposes of this appeal.
(Anders Brief at 4). The Summary of Argument is, “[a]fter a complete and careful review of the entire record in this matter it is clear that there are no meritorious issues presented and that this appeal is wholly frivolous.” The Argument section states:
Appellate counsel has made a complete and careful review of the record in this matter concerning the appellant‘s entry of a guilty plea to rape, aggravated assault and related offenses. During this review, appellate counsel was mindful of the following issues which might arguably support this appeal:
- the legality of the sentence.
- the excessiveness of the sentence.
- the voluntariness of the guilty plea.
- the elements of the guilty plea colloquy.
- the availability of legal defenses to the defendant.
After a review of the record in this matter and the applicable law, appellate counsel can only conclude that no issue of arguable merit exists and that this appeal is wholly frivolous. see Anders v. California, 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] (1967).
- that appellate counsel will be filing a Petition with this Court seeking permission to withdraw;
- that a copy of this Brief will be forwarded to him at his last known address; and
- that he has the right to retain new counsel or raise any points he may deem worthy of consideration.
(Anders Brief at 6-7). Appellate counsel then concludes, “[f]or the foregoing reasons, it is respectfully requested that this Honorable Court, prior to reaching a decision, make an independent review of the record in this matter.” (Anders Brief at 8).
Appellate counsel has filed what purports to be an Anders brief requesting allowance to withdraw as counsel. The Anders brief fails, however, to meet the minimum requisites of Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) for “No Merit Letters” in PCHA proceedings as set forth by this Court in Commonwealth v. Finley, 379 Pa.Super. 390, 393-394, 550 A.2d 213, 215 (1988). Specifically, the purported Anders brief fails to adequately detail counsel‘s review of the record and fails entirely to list the issues which appellant wished to be reviewed, i.e. that his plea was involuntary as the result of threats alleged to have been made by court-appointed counsel.
In Commonwealth v. Turner, supra, our Supreme Court specifically noted that counsel in Finley, “had presented a ‘no-merit’ letter detailing the nature and extent of his review and listing each issue the petitioner wished to have raised....” 518 Pa. at 494, 544 A.2d at 928. The Court then proceeded to find the procedures followed in Finley sufficient, implicitly finding that counsel in Turner followed those procedures. In the subsequent opinion of
FUNCTIONS OF PCHA COUNSEL
Pennsylvania‘s PCHA petition is a hybrid statutory creation modified by the effects of state procedural rules promulgated by our Supreme Court. See
Under Pennsylvania law a PCHA petitioner has the right to the assistance of court appointed counsel if petitioner is indigent, unless “a previous petition involving the same issue or issues has been finally determined adversely to the petitioner and he either was afforded the opportunity to have counsel appointed or was represented in proceedings thereon.” See
Formal appointment of counsel alone, however, is not sufficient to render PCHA proceedings “counselled” so as to permit summary disposition of any subsequent PCHA petition asserting the same claim. This Court has stated on numerous occasions that:
The mandatory appointment of counsel requirement of the Post Conviction Hearing Act is not limited to the mere naming of an attorney to represent an accused, but also envisions that counsel so appointed shall have the opportunity and in fact discharge the responsibilities required by his representation.
Commonwealth v. Davis, 363 Pa.Super. 469, 472, 526 A.2d 440, 441 (1987). “The point in time at which a trial court
Appointment of counsel serves administrative as well as substantive interests. In Commonwealth v. Mitchell, 427 Pa. 395, 235 A.2d 148 (1967), our Supreme Court explained:
We pause to note that the mandatory appointment requirement is a salutary one and best comports with efficient judicial administration and serious consideration of a prisoner‘s claims. Counsel‘s ability to frame the issues in a legally meaningful fashion insures the trial court that all relevant considerations will be brought to its attention. As recognized by the American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Post-Conviction Remedies § 4.4, at 66 (1967) [approved draft 1968]: ‘It is a waste of valuable judicial manpower and an inefficient method of seriously treating the substantive merits of applications for post-conviction relief to proceed without counsel for the applicants who have filed pro se.... Exploration of the legal grounds for complaint, investigation of the underlying facts, and more articulate statement of claims are functions of an advocate that are inappropriate for a judge, or his staff.’
235 A.2d at 149 (citations omitted, emphasis added); see also Commonwealth v. Sangricco, 490 Pa. 126, 415 A.2d 65 (1980); Commonwealth v. Fiero, 462 Pa. 409, 341 A.2d 448 (1975). In Commonwealth v. Finley, supra, our Supreme Court stated succinctly, “[c]ounsel for a PCHA petitioner can more ably explore legal grounds for complaint, investigate underlying facts, articulate claims for relief, and promote efficient administration of justice.” 440 A.2d at 1184 (emphasis added); see also Commonwealth v. Holland, 496 Pa. 514, 437 A.2d 1159 (1981).
The importance of court-appointed counsel‘s role in facilitating the efficient administration of justice cannot be overstated. Left to their own vices, or the dubious assistance of “jail-house lawyers,” under-educated prison inmates often file petitions more marked by voluminousness, creativity, and irrelevancy than by lucidity. See e.g. Commonwealth v. Gaito, 277 Pa.Super. 404, 408-09, 419 A.2d 1208, 1211 (1980). Vast judicial resources are then squandered in efforts to decipher and dispose of such submissions.
Court-appointed counsel, on the other hand, may assist the efficient administration of justice by assisting the petitioner to separate the grain from the chaff, i.e. by dissuading the petitioner from filing frivolous claims and by helping petitioner identify, prepare, and present any arguable claims. Counsel can ensure that all arguable claims are presented in a single petition, and also ensure that the petition is presented in an orderly professional manner conducive to meaningful appellate review. In this way, a full and fair hearing is guaranteed to petitioner‘s claims, while at the same time limited judicial resources are conserved. Cf. Yackle, Postconviction Remedies § 137 at 517-18 (1981) (discussing the need for counsel in federal habeas corpus proceedings).
WITHDRAWAL OF PCHA COUNSEL
Here, counsel has submitted a purported Anders brief which is so parsimonious with details that this Court was left without any real guidance as to the facts of the case, the relevant procedural history, or the issues which appellant sought to have reviewed. The purported Anders brief plainly fails to meet even the relaxed Turner/Finley “no merit letter” requirements in this respect. Because of the generic, telegraphic nature of the ”Anders Brief” submitted, we were obliged to expend a considerable portion of our limited judicial resources duplicating the undocumented review of counsel. See Commonwealth v. Turner, supra, 544 A.2d at 928; Commonwealth v. Finley, supra, 550 A.2d at 215; cf. Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988);
The only issue upon which appellant has sought review, via his prior pro se submissions, is whether alleged coercion by his court-appointed attorney rendered his guilty plea involuntary. Review of the comprehensive plea colloquy reveals that appellant‘s current allegation of coercion is contradicted by appellant‘s own sworn statement at the time the plea was entered that his plea was not induced by any coercion. (N.T. 11/21/84 at 6). It has been uniformly held that such claims will not be entertained, as an appellant will not be permitted to contradict his own prior sworn statements at a guilty plea hearing. See e.g. Commonwealth v. Carrillo, 319 Pa.Super. 115, 124-25, 465 A.2d 1256, 1261 (1983).
Given the settled ruling in Carrillo, we have no reluctance to affirm the order denying post-conviction relief on substantive grounds. Our careful and time-consuming review of the record reveals that the evidence against appellant was irrefutable, the guilty plea colloquy was impeccable, and the sentence of imprisonment imposed was mani-
Though administrative interests were clearly prejudiced by counsel‘s non-compliance with the minimum documentation requisites of Turner and Finley, we find no reason to delay disposition of this frivolous appeal on that basis. The judicial resources needlessly expended as the result of appellate counsel‘s failure to document his review of the record will not be recouped by prolonging the odyssey of this case through the courts of this Commonwealth. Remand for a new No Merit Letter would elevate form over both substantive and administrative interests and in accordance with the general policy propounded by our Supreme Court in
The motion to withdraw is granted; the order denying post-conviction relief is affirmed.
BROSKY, J., files a concurring opinion.
BROSKY, Judge, concurring:
I concur with the decision of my distinguished colleague, Judge Kelly, to affirm the Order of the PCHA court denying appellant relief under the Act. I also would grant counsel for appellant‘s Motion to withdraw because of the frivolity of the instant appeal.
However, I write separately to express my disagreement with Judge Kelly‘s conclusion that appellant‘s ”Anders brief” does not comply with the standards set forth by our Supreme Court in Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and adopted as controlling by this Court in Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988). Judge Kelly asserts, specifically, that “the purported Anders brief fails to adequately detail counsel‘s review of the record and fails entirely to list the issues which appellant wished to be reviewed, i.e.[,] that his [appellant‘s] plea was involuntary as the result of threats alleged to have been made by court-appointed counsel.” Majority Opinion 8; emphasis in text. In other words, Judge Kelly finds technical fault in the lack of substance in the wording of issue number three as set forth by counsel in the ”Anders Brief,” which reads as follows:
3. the voluntariness of the guilty plea.
The Turner “no merit” letter is not to be construed as the functional equivalent of an ”Anders Brief.” So, while counsel‘s statement of the issues which could arguably support appellant‘s appeal might not survive the Anders test, it does, nevertheless, and in my view, fully comply with Turner. In collateral proceedings where counsel seeks to withdraw, Anders is no longer the law to be followed in Pennsylvania.
Turner, 518 Pa. at 495, 544 A.2d at 929.
Thus, any withdrawal of counsel matters in collateral proceedings must now be judged in terms of what is required under Turner and Finley without any further reference to Anders.1
Nonetheless, the majority seeks to fault counsel for failing “to adequately detail counsel‘s review of the record” in addition to failing “entirely to list the issues which appellant wished to be reviewed” as discussed, supra. Majority Op., 212. Additionally, the majority notes the absence of a “no merit” letter “detailing the nature and extent of his review and listing each issue the petitioner wished to have raised....” Id., quoting Commonwealth v. Turner, 518 Pa. at 494, 544 A.2d at 928; emphasis in text.
Instantly, the ”Anders Brief” filed on behalf of appellant, by any other name, fully comports, in my view, with the current state of the law for the withdrawal of court-appointed PCHA counsel. More specifically, I would hold that the Brief filed on behalf of appellant, regardless of the label one chooses to affix to it, possesses all the criteria minimally necessary to meet “the relaxed Turner/Finley standard for withdrawal of counsel in collateral appeals.” Majority Op. 213.
In light of the foregoing, I concur in the result.