J-S17030-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 ROBERT BRUNDAGE, JR.                     :
                                          :
                     Appellant            :   No. 3549 EDA 2017


             Appeal from the PCRA Order, September 28, 2017,
               in the Court of Common Pleas of Wayne County,
            Criminal Division at No(s): CP-64-CR-0000033-2014.


BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.

CONCURRING STATEMENT BY: KUNSELMAN, J.:               FILED JUNE 26, 2018

      I join fully in this Court’s majority memorandum. I write separately to

emphasize the error of Robert Brundage’s trial counsel when he concluded his

representation before his responsibilities as a lawyer ended.   It appears that

after the post-sentence motion was denied, and throughout the litigation, trial

counsel informed his client “I don’t do appeals” and believed that was the end

of his obligation.   The Pennsylvania Rules of Criminal Procedure, however,

presume that an attorney of record will remain in a case through a direct

appeal. Specifically, Rule 120(A)(4) provides: “An attorney who has been

retained or appointed by the court shall continue such representation through

direct appeal or until granted leave to withdraw by the court pursuant to

paragraph (B).” Pa.R.Crim.P. 120(A) (emphasis added).
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      Once a lawyer enters an appearance on a case, that lawyer may not

unilaterally dictate when his or her representation ends, especially in a

criminal case where a defendant has a Sixth Amendment right to counsel at

all stages of the proceeding. Only a court may say when the representation

ends. Prior to the conclusion of a direct appeal, a lawyer must seek permission

to withdraw before ending representation. Pa. R. Crim. P. 120(B). The court

must ensure that the defendant’s right to counsel is protected.

      As the Comment to Rule 120 states:

      The court must make a determination as to the status of the case
      before permitting counsel to withdraw. Although there are many
      factors considered by the court in determining whether there is
      good cause to the permit the withdrawal of counsel, when granting
      leave, the court should determine whether new counsel will be
      stepping in or the defendant is proceeding without counsel, and
      that the change in attorneys will not delay the proceedings or
      prejudice the defendant, particularly concerning time limits.

Comment to Pa.R.Crim.P. 120 (emphasis added).

      The Comment lists several factors for the court to consider, including

whether the client has met financial obligations to the attorney and the

contractual agreement between the attorney and client. Here, the lawyer may

have had a valid reason to withdraw his representation, (i.e. if he was not

retained for the appeal), but that reason is irrelevant; it appears he left his

client during the critical time-period to file a notice of appeal. Counsel sent

his client a letter informing him he had thirty (30) days to file an appeal, but

he did not talk with his client about the merits of an appeal. As the majority

correctly holds, this is not enough under Roe v. Flores-Ortega, 528 U.S.

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470, 479 (2000). Additionally the letter did not inform the client of his right

to counsel during the appeal. N.T., 4/24/17, at 33.

      Testimony at the PCRA hearing indicated that Brundage’s sister tried to

contact counsel on behalf of her brother, during the appeal time-period, but

counsel did not return her calls or texts; she was under the impression that

counsel “was still hired” and did not know she and her brother “needed to hire

a different [lawyer].” Id. at 43-45.      The PCRA court did not mention the

sister’s testimony in its 1925(a) opinion; thus, we have no indication of

whether the testimony was credible.       However, the evidence at the PCRA

hearing clearly showed that Brundage was interested in filing an appeal, but

he knew his lawyer would not help him do so. Additionally, Brundage was not

aware of his right to have a lawyer assist him in filing the appeal.

      I find it troubling that any lawyer, particularly a criminal defense lawyer,

would choose to abruptly end representation before the case is finished. Here,

Brundage was clearly prejudiced by this action. If his trial counsel had filed a

motion to withdraw either with his post-sentence motion, or immediately upon

the denial of the post-sentence motion, the court could have appointed a

public defender or Brundage could have retained another lawyer to handle the

appeal. At a minimum, counsel should have timely filed the notice of appeal,

to preserve his client’s appellate rights, and then properly sought leave to

withdraw. Had he done so, again, the court could have appointed substitute

counsel or such counsel could have been retained to represent Brundage


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during the direct appeal; substitute counsel then could have assessed the

merits of the appeal and proceeded accordingly.

      Regardless of the language in a retainer agreement or discussions with

the client, under the Pennsylvania Rules of Criminal Procedure, defense

counsel cannot abandon a client until the case is completed, which includes a

direct appeal.   If a lawyer wishes to withdraw before the case is over, he or

she must seek court approval before doing so, to ensure the client has

adequate representation through all stages of the litigation. As this did not

occur in this case, I agree that the order denying post-conviction relief should

be reversed and Brundage’s appellate rights reinstated.


      President Judge Emeritus Bender and Judge Lazarus join this Concurring

Statement.




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