J-S26009-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

GERALD D. CROWLEY

                        Appellant                  No. 2937 EDA 2015


         Appeal from the Judgment of Sentence January 24, 2014
          In the Court of Common Pleas of Northampton County
           Criminal Division at No(s): CP-48-CR-0002903-2013

BEFORE: OLSON, STABILE and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                                FILED MAY 06, 2016

     Appellant, Gerald D. Crowley, appeals from the judgment of sentence

entered on January 24, 2014, as made final by the denial of his

post-sentence motion on August 27, 2015. On this direct appeal, Appellant’s

court-appointed counsel has filed a petition to withdraw as counsel and a

no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.

1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en

banc). As we deem this to be a direct appeal, and not an appeal from the

denial of post-conviction relief, we deny counsel’s petition to withdraw, and

remand for the filing of an appropriate concise statement of errors

complained of on appeal pursuant to Pennsylvania Rule of Appellate

Procedure 1925(b) (“concise statement”) and merits brief.




* Retired Senior Judge Assigned to the Superior Court
J-S26009-16


        As our disposition of counsel’s petition to withdraw is based on the

procedural posture of this case, we focus our attention solely on the

procedural history of this case.       On September 30, 2013, Appellant was

charged via criminal information with possession of a firearm by a prohibited

person,1    possession     with   intent   to    deliver   a   controlled   substance,2

possession of drug paraphernalia,3 false identification to law enforcement,4

two counts of failure to keep a dog properly confined,5 failure to obtain a dog

license,6 harboring a dangerous dog,7 and failure to have a dog vaccinated

against rabies.8 On November 22, 2013, Appellant pled guilty to possession

of a firearm by a prohibited person and possession with intent to deliver a

controlled substance. The remaining charges were withdrawn. On January

24, 2014, Appellant was sentenced to an aggregate term of 5 to 10 years’

imprisonment.




1
    18 Pa.C.S.A. § 6105(a)(1).
2
    35 P.S. § 780-113(a)(30).
3
    35 P.S. § 780-113(a)(32).
4
    18 Pa.C.S.A. § 4914(a).
5
    3 P.S. § 459-305(a)(1).
6
    3 P.S. § 459-201(a).
7
    3 P.S. § 459-502-A(a)(1)(i).
8
    3 P.S. § 455.8(a).


                                           -2-
J-S26009-16


      On January 29, 2014, Appellant filed a timely post-sentence motion.

The trial court, however, took no action on Appellant’s post-sentence motion

and, despite the passage of 120 days and the concomitant denial of

Appellant’s   motion    by   operation    of   law,   no   order   reflecting   these

developments was entered on the docket. See Pa.R.Crim.P. 720(A)(2)(B).

On February 5, 2015, Appellant filed a pro se petition pursuant to the Post-

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541-9546.              On March 6,

2015, counsel was appointed.             On August 3, 2015, counsel filed a

Turner/Finley no-merit letter.       That same day, the PCRA court issued

notice of its intent to dismiss the PCRA petition without an evidentiary

hearing. See Pa.R.Crim.P. 907.

      On August 14, 2015, counsel filed a petition seeking leave to withdraw

as counsel. On August 17, 2015, Appellant filed a pro se response to the

PCRA court’s Rule 907 notice. On August 27, 2015, the trial court ordered

the Clerk of Courts of Northampton County to enter an order denying

Appellant’s post-sentence motion by operation of law.              See Pa.R.Crim.P.

720(B)(3). In that same order, Appellant’s PCRA petition was dismissed for

lack of jurisdiction.   Also on August 27, 2015, the Clerk of Courts of

Northampton County entered an order denying Appellant’s post-sentence

motion via operation of law. This timely appeal followed.9


9
  On September 30, 2015, the trial court ordered Appellant to file a concise
statement. On October 19, 2015, Appellant filed his concise statement. On
November 18, 2015, the trial court issued its Rule 1925(a) opinion.


                                         -3-
J-S26009-16


      We first consider whether this case is a direct appeal from a judgment

of sentence, as made final by the denial of a post-sentence motion by

operation of law, or whether this case involves an appeal from the denial of

PCRA relief. As this determination involves a question of law, our standard

of   review   is   de   novo   and   our    scope   of   review   is   plenary.   Cf.

Commonwealth v. John, 854 A.2d 591, 593 (Pa. Super. 2004), appeal

denied, 870 A.2d 320 (Pa. 2005) (citation omitted).

      We begin with a discussion of when Appellant’s judgment of sentence

became final for purposes of taking a direct appeal to this Court. When a

defendant files a post-sentence motion, and the trial court fails to act on

that motion within 120 days, a notice of appeal must be filed “within 30 days

of the entry of the order denying the motion by operation of law[.]”

Pa.R.Crim.P. 720(A)(2)(B).

      In this case, Appellant filed a timely post-sentence motion and the trial

court did not act on that motion within 120 days. Therefore, Appellant had

until 30 days after entry of the order denying his post-sentence motion by

operation of law to seek review of his judgment of sentence in this Court.

As noted above, because of an apparent breakdown in the judicial system,

the order denying Appellant’s post-sentence motion by operation of law was

not entered until August 27, 2015. Thus, Appellant had until September 28,

2015 to seek direct review of his judgment of sentence.




                                           -4-
J-S26009-16


      On September 14, 2015, Appellant filed a timely notice of appeal from

the entry of the order that denied his post-sentence by operation of law.

Appellant’s notice of appeal states that the appeal is taken from the order

denying Appellant’s post-sentence motion. This Court has interpreted such

notices of appeal as being taken from the judgment of sentence.             See

Commonwealth v. Dreves, 839 A.2d 1122, 1125 n.1 (Pa. Super. 2003).

Furthermore, it is axiomatic that “[a] PCRA petition may only be filed after

an   appellant   has   waived   or   exhausted   his   direct   appeal   rights.”

Commonwealth v. Leslie, 757 A.2d 984, 985 (Pa. Super. 2000) (citation

omitted; emphasis in original). As Appellant’s PCRA petition was filed prior

to his judgment of sentence becoming final, Appellant’s PCRA petition was

premature.     As such, the trial court properly dismissed Appellant’s PCRA

petition for want of jurisdiction.   Therefore, because Appellant lodged a

timely appeal from the order denying his post-sentence by operation of law,

and in view of the plain language of the notice of appeal, we conclude that

Appellant’s notice of appeal, filed on September 14, 2015, should be

considered as taken from the judgment of sentence entered on January 24,

2014, as made final by the denial of his post-sentence motion on August 27,

2015. To hold otherwise would deny Appellant direct review of his judgment

of sentence.

      Having determined that this is a direct appeal and not an appeal from

the denial of PCRA relief, counsel’s Turner/Finley letter is inappropriate. A



                                     -5-
J-S26009-16


Turner/Finley no-merit letter, which is filed in post-conviction proceedings,

provides less protection than does a brief filed pursuant to Commonwealth

v. McClendon, 434 A.2d 1185 (Pa. 1981), and its         federal predecessor,

Anders v. California, 386 U.S. 738 (1967).10       See Commonwealth v.

Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011). As such, although we

may accept an Anders brief in lieu of a Turner/Finley letter, we may not

accept a Turner/Finley letter in lieu of an Anders brief because doing so

would violate Appellant’s Sixth Amendment right to counsel.

      One of the additional protections provided by Anders is that we may

only grant counsel leave to withdraw on direct appeal when any issue raised

on appeal would be wholly frivolous. See Commonwealth v. Bennett, 124

A.3d 327, 333 (Pa. Super. 2015) (citation omitted). We agree with the trial

court that there are non-frivolous issues for direct appeal, e.g., the trial

court’s misapplication of the sentencing guidelines.        See Trial Court

Opinion, 11/18/15, at 5. As such, we direct that counsel proceed with the

filing of a concise statement and merits brief.

      In sum, we conclude that this case is properly considered a direct

appeal and not an appeal from the denial of post-conviction relief. As such,

counsel’s attempt to withdraw under Turner/Finley is improper.           The

certified record shall be remanded to the trial court for further proceedings

as indicated.   Within ten days of this memorandum, counsel shall file a

10
  In order to withdraw as counsel on direct appeal, counsel must follow the
procedural requirements set forth in Anders and McClendon.


                                     -6-
J-S26009-16


concise statement listing issues to be raised on direct appeal. The trial court

shall issue a Rule 1925(a) opinion addressing those issues within 30 days of

the filing of the concise statement.11 Upon receipt of the trial court’s Rule

1925(a) opinion, the Clerk of Courts of Northampton County shall forthwith

transmit the original certified record and a supplemental certified record to

this Court. Appellant’s counsel shall have 21 days from the filing of the trial

court’s Rule 1925(a) opinion to file a merits brief with this Court.        The

Commonwealth shall have 21 days from the filing of Appellant’s brief to file

its brief. Thereafter, Appellant’s counsel shall have seven days to file a reply

brief.

         Petition to withdraw as counsel denied. Case remanded and certified

record returned to trial court. Jurisdiction retained.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/6/2016




11
   If the trial court has previously addressed the claims in the concise
statement, it may issue an order in lieu of opinion noting where in the
certified record it has previously addressed the claims.


                                      -7-
