J-S72004-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

JODY GORDON

                        Appellant                  No. 1959 MDA 2015


              Appeal from the PCRA Order October 23, 2015
              In the Court of Common Pleas of York County
           Criminal Division at No(s): CP-67-CR-0007467-2013


BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J.*

JUDGMENT ORDER BY GANTMAN, P.J.:              FILED DECEMBER 08, 2016

     Appellant, Jody Gordon, appeals from the order entered in the York

County Court of Common Pleas, which denied his petition filed pursuant to

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

9, 2014, Appellant pled guilty to possession with intent to deliver a

controlled substance.   The court sentenced Appellant on July 29, 2014, to

two-and-one-half (2½) to five (5) years’ incarceration.    On February 5,

2015, Appellant filed a timely pro se PCRA petition, and he filed an amended

petition on July 31, 2015. The PCRA court subsequently appointed counsel.

Following a hearing, the court denied Appellant’s PCRA petition on October

23, 2015. Appellant filed a timely notice of appeal on November 9, 2015,

and complied with the court’s order to file a concise statement of errors

_____________________________

*Retired Senior Judge assigned to the Superior Court.
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complained of on appeal per Pa.R.A.P. 1925(b).

       Preliminarily, appellate counsel has filed a Turner/Finley1 brief and a

petition to withdraw as counsel.               Before counsel can be permitted to

withdraw from representing a petitioner under the PCRA, Pennsylvania law

requires counsel to file a “no-merit” brief or letter pursuant to Turner and

Finley. Commonwealth v. Karanicolas, 836 A.2d 940 (Pa.Super. 2003).

            [C]ounsel must…submit a “no-merit” letter to the [PCRA]
            court, or brief on appeal to this Court, detailing the nature
            and extent of counsel’s diligent review of the case, listing
            the issues which the petitioner wants to have
            reviewed, explaining why and how those issues lack
            merit, and requesting permission to withdraw.

            Counsel must also send to the petitioner: (1) a copy of the
            “no-merit” letter/brief; (2) a copy of counsel's petition to
            withdraw; and (3) a statement advising petitioner of the
            right to proceed pro se or by new counsel.

            If counsel fails to satisfy the foregoing technical
            prerequisites of Turner/Finley, the court will not reach
            the merits of the underlying claims but, rather, will merely
            deny counsel's request to withdraw. Upon doing so, the
            court will then take appropriate steps, such as directing
            counsel to file a proper Turner/Finley request or an
            advocate’s brief.

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007) (internal

citations    omitted)    (emphasis     added).       Instantly,   appellate   counsel’s

Turner/Finley brief addresses only one issue on appeal (trial counsel’s

alleged ineffective assistance for promising Appellant a concurrent sentence
____________________________________________


1
  Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).



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if he pled guilty) and explains why that issue lacks merit. Counsel notified

Appellant of counsel’s request to withdraw and properly advised Appellant

regarding his rights.   In Appellant’s pro se response, he asserts counsel

failed to address other issues raised in Appellant’s PCRA petition, which

Appellant wanted to advance on appeal, i.e., trial counsel’s alleged

ineffectiveness for failing to (1) move for dismissal of the charges based on

“prejudicial pre-arrest delay”; (2) provide Appellant with pre-trial discovery

material; (3) advise Appellant on the availability of an alibi defense; (4)

challenge Appellant’s alleged mandatory minimum sentence; and (5) file a

post-sentence motion and/or direct appeal on Appellant’s behalf.         (See

Appellant’s pro se brief at 9). Appellate counsel did not list those issues in

his Turner/Finley brief and explain why they lack merit.           Therefore,

counsel failed to comply with the technical requirements of Turner/Finley.

Accordingly, we deny counsel’s petition to withdraw. See Wrecks, supra.

Instead, we remand and direct counsel to file (1) an advocate’s brief, or (2)

a compliant Turner/Finley brief, additionally addressing the other issues

enumerated in Appellant’s current pro se response, with an accompanying

petition to withdraw. Counsel must file the amended brief within thirty (30)

days of the filing date of this decision. The Commonwealth shall then have

thirty (30) days to file an answer brief or notify this Court that it does not

intend to file one.     If counsel files an amended Turner/Finley brief,

Appellant shall have thirty (30) days from the date counsel files the brief to


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file an amended pro se response, strictly limited to those issues previously

raised and properly preserved.

     Case remanded with instructions. Panel jurisdiction is retained.




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