J-S79018-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMIN C. WILLIAMS                          :
                                               :
                       Appellant               :   No. 1020 MDA 2018

              Appeal from the PCRA Order Entered May 18, 2018
     In the Court of Common Pleas of Franklin County Criminal Division at
                       No(s): CP-28-CR-0000660-2016


BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.:                            FILED FEBRUARY 04, 2019

       Appellant, Jamin C. Williams, appeals from the order entered on May

18, 2018, dismissing his petition filed pursuant to the Post Conviction Relief

Act (PCRA), 45 Pa.C.S.A. §§ 9541-9546. On appeal, Appellant’s counsel filed

a petition to withdraw as counsel, and accompanying brief, pursuant to

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

Santiago, 978 A.2d 349 (Pa. 2009).1 Upon review, because counsel has not

complied with our procedural requirements, we deny the motion to withdraw


____________________________________________


1  Counsel mistakenly filed a brief pursuant to Anders. Where counsel seeks
to withdraw on appeal from the denial of PCRA relief, a Turner/Finley no-
merit letter is the appropriate filing. See Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988) (en banc). “Because an Anders brief provides greater protection to a
defendant, this Court may accept an Anders brief in lieu of a Turner/Finley
letter.” Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super.
2011).
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as   counsel    and    remand      for   additional   action   consistent   with   this

memorandum.

       The PCRA court summarized the facts and procedural history of this case

as follows:

       On December 9, 2016, [Appellant] entered a nolo contendere plea
       to one count each of criminal attempt – disarming law
       enforcement; fleeing and eluding [police]; and driving under
       suspension – DUI related.[2] On that same date, [the trial c]ourt
       accepted the sentence[ing] terms proposed by the plea
       agreement and imposed a sentence of [nine] to 36 months’
       incarceration on the count of criminal attempt – disarming law
       enforcement; a consecutive [nine] to 36 months’ incarceration for
       fleeing and eluding [police]; and a concurrent sentence of 60 days’
       incarceration for driving under suspension – DUI related.
       [Appellant] did not file post-sentence motions or a direct appeal.

       On March 23, 2017, [Appellant] filed a pro se [PCRA petition]. The
       PCRA [p]etition alleged that trial counsel was ineffective for (a)
       failing to seek proper medical evidence to contradict the
       court-ordered mental health evaluation, (b) failing to work in
       [Appellant’s] best interest or to an acceptable standard, and (c)
       coercing [Appellant] into waiving his preliminary hearing and
       entering into a plea agreement based on the threat of additional
       charges. By [o]rder dated March 27, 2017, Attorney Kristin
       Nicklas was appointed to represent [Appellant] in furtherance of
       his PCRA claims.

       On July 27, 2017, Attorney Nicklas filed a motion to withdraw as
       counsel and a “no merit” letter pursuant to [Turner/Finley].
       Upon consideration of Attorney Nicklas’ correspondence and [its]
       independent review of the record and the law, [the PCRA c]ourt
       entered an [o]rder on September 15, 2017, finding that
____________________________________________


2 18 Pa.C.S.A. § 901/18 Pa.C.S.A. § 5104.1(a)(1), 75 Pa.C.S.A. § 3733, and
75 Pa.C.S.A. § 1542(b)(1), respectively. The charges arose from an incident
on April 16, 2016, wherein Appellant engaged in a high-speed police chase
while driving under a suspended license. When police employed tactics to
stop the vehicle Appellant crashed, tried to flee on foot across an interstate
highway, and grabbed an officer’s taser. N.T., 12/9/2016, at 6-7.

                                           -2-
J-S79018-18


     [Appellant’s] PCRA [p]etition lacked merit [after addressing each
     of the claims raised in the PCRA petition]. [The PCRA court]
     further advised [Appellant] of [its] intention to dismiss his PCRA
     [p]etition without a hearing pursuant to Pa.R.Crim.P. 907(1).
     Attorney Nicklas was granted leave to withdraw as counsel.
     [Thereafter, the PCRA court granted Appellant two requested
     extensions to file a pro se response to the impending dismissal of
     his PCRA.]

     On December 11, 2017, [Appellant] filed a pro se “[m]otion for
     [PCRA] [r]elief” [that the trial court deemed an amended PCRA
     petition.] [In that filing, Appellant] alleged for the first time that
     he had asked trial counsel to file [a direct appeal and requested
     reinstatement of his direct appeal rights.] [Appellant] included a
     [pro se] [m]emorandum of [l]aw in which he alleged that trial
     counsel was ineffective for failing to seek “proper medical
     records,” failing to notify him of his mental health rights, and
     failing “to have a complete and competent evaluation.”           [The
     PCRA court] entered an [o]rder on December 18, 2017, advising
     [Appellant] it would no longer entertain claims of ineffective
     assistance [of counsel] with respect to his mental health records
     and evaluation process as these claims were disposed of by prior
     [o]rder [entered on September 15, 2017]. [The PCRA court] did,
     however, schedule an evidentiary hearing and appoint[ed]
     Attorney Michael Palermo to assist [Appellant] in pursuing his
     claim of ineffective assistance of counsel for failing to file an
     appeal.

     The evidentiary hearing was held on April 26, 2018 via video
     conference[e].

                          *            *            *

     After the evidentiary hearing, [the PCRA c]ourt concluded
     [Appellant] was entitled to no relief and issued an [o]rder [and
     accompanying opinion] denying [Appellant’s original and
     amended] PCRA [p]etition[s] on May 18, 2018.




                                     -3-
J-S79018-18



PCRA Court Opinion, 8/28/2018, at 1-5 (original footnotes omitted).              This

timely appeal resulted.3

       Our standard and scope of review are well-settled.

       We review an order dismissing a petition under the PCRA in the
       light most favorable to the prevailing party at the PCRA level. This
       review is limited to the findings of the PCRA court and the evidence
       of record. We will not disturb a PCRA court's ruling if it is supported
       by evidence of record and is free of legal error. This Court may
       affirm a PCRA court's decision on any grounds if the record
       supports it. We grant great deference to the factual findings of the
       PCRA court and will not disturb those findings unless they have no
       support in the record. However, we afford no such deference to
       its legal conclusions. Further, where the petitioner raises
       questions of law, our standard of review is de novo and our scope
       of review is plenary.

                               *               *      *

       The Turner/Finley decisions provide the manner for
       postconviction counsel to withdraw from representation. The
       holdings of those cases mandate an independent review of the
       record by competent counsel before a PCRA court or appellate
       court can authorize an attorney's withdrawal. The necessary
       independent review requires counsel to file a “no-merit” letter
       detailing the nature and extent of his review and list each issue
       the petitioner wishes to have examined, explaining why those
       issues are meritless. The PCRA court, or an appellate court if the
       no-merit letter is filed before it, then must conduct its own
       independent evaluation of the record and agree with counsel that
       the petition is without merit.


____________________________________________


3 Appellant filed a timely, counseled notice of appeal. Thereafter, Appellant
requested a change in appointed counsel and the PCRA court eventually
appointed Attorney Kristopher Accardi to represent Appellant on appeal.
Attorney Accardi timely complied with the PCRA court’s subsequent direction
to file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). The PCRA court issued an opinion pursuant to Pa.R.A.P.
1925(a) on August 28, 2018.

                                           -4-
J-S79018-18


      [T]his Court [has] imposed additional requirements on counsel
      that closely track the procedure for withdrawing on direct
      appeal.... [C]ounsel is required to contemporaneously serve upon
      his [or her] client his [or her] no-merit letter and application to
      withdraw along with a statement that if the court granted
      counsel's withdrawal request, the client may proceed pro se or
      with a privately retained attorney.

Commonwealth v. Reed, 107 A.3d 137, 140 (Pa. Super. 2014) (internal

citations omitted).

      Here, our review of the certified record confirms that it is incomplete.

In its opinion, the PCRA court states that it held an evidentiary hearing, via

video conferencing, on April 26, 2018. Upon our review, there are no docket

entries indicating that an evidentiary hearing was held or that counsel

subsequently ordered the transcripts from the PCRA hearing to be filed in the

record. In their appellate filings, neither counsel for Appellant nor the PCRA

court cite specifically to the notes of testimony from the PCRA hearing.

However, because the PCRA court’s opinion references and contains a detailed

summary of the testimony presented by trial counsel and Appellant at the

April 26, 2018 hearing, we have no reason to believe that the hearing did not

transpire.

      As mentioned above, however, one of our requirements is to conduct an

independent review of the record and, in order to do so, this Court has stated:

      All appellants are required to insure a sufficient record is delivered
      to our Court for review. [See generally Pa.R.A.P. Chapter 19,
      Transmission of Record.] This requirement is especially important
      where counsel ha[s] filed an Anders brief and motion to
      withdraw. The filing of the Anders brief triggers the duty of our
      Court to conduct an independent review of the entire record to
      make sure counsel has fully represented his client's interest.

                                      -5-
J-S79018-18


       Thus, when Anders is implicated, the entire record needs to be
       transmitted. The failure to insure a sufficient record is transmitted
       to our Court is always a matter for concern. That failure is more
       notable where counsel concurrently files a motion to withdraw
       based upon the assertion the record is devoid of meritorious
       issues.

Commonwealth v. Vilsaint, 893 A.2d 753, 758 (Pa. Super. 2006) (internal

citation omitted).

       Although the foregoing principles reference the filing of an Anders brief

in the context of a direct appeal, they apply with equal force on collateral

review. Accordingly, we conclude that counsel has failed to fulfill his obligation

for withdrawal. Therefore, we deny counsel’s petition to withdraw and remand

with instructions for counsel to obtain forthwith the notes of testimony from

the PCRA evidentiary hearing held on April 26, 2018. Within 30 days of receipt

of that transcript, and after a thorough review of the record, counsel is then

directed to file either an advocate’s brief or a Turner/Finley no-merit letter

and concomitant petition to withdraw as counsel.4

       Petition to withdraw as counsel denied. Case remanded for proceedings

consistent with this memorandum. Panel jurisdiction retained.

       Judge Musmanno joins.

       Judge Shogan concurs in the result.




____________________________________________


4  Finally, we note that Appellant filed a pro se application for the appointment
of new counsel with this Court on January 7, 2019. We hold that filing in
abeyance until we review the case following remand.

                                           -6-
