J-S44006-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

EDWARD TERANTINO,

                            Appellant                     No. 44 EDA 2017


        Appeal from the Judgment of Sentence Entered August 6, 2015
               In the Court of Common Pleas of Monroe County
            Criminal Division at No(s): CP-45-CR-0001848-2013


BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                          FILED AUGUST 16, 2017

        Appellant, Edward Terantino, appeals nunc pro tunc from the August

6, 2015 judgment of sentence of 48 to 96 months’ incarceration.

Additionally, Appellant’s counsel, Hillary A. Madden, Esq., seeks to withdraw

her representation of Appellant.          After careful review, we deny counsel’s

petition to withdraw and remand with instructions.

        In March of 2014, Appellant was convicted, following a jury trial, of

involuntary deviate sexual intercourse (of a person less than 16 years of

age) (hereinafter, “IDSI”), statutory sexual assault, and aggravated indecent

assault (of a person less than 16 years of age).1           The facts underlying

Appellant’s convictions are unnecessary to our disposition of his appeal at

____________________________________________


1
    18 Pa.C.S. §§ 3123(a)(7), 3122.1, and 3125(8), respectively.
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this juncture. For these offenses, Appellant was sentenced to an aggregate

term of 9 to 18 years’ incarceration, which included a mandatory minimum

sentence of 5 years’ incarceration, pursuant to 42 Pa.C.S. § 9718, for

Appellant’s IDSI conviction.

      Appellant filed a timely direct appeal and, while this Court found

meritless the sole issue he presented therein (a claim that the trial court

erred by allowing certain expert testimony), we sua sponte vacated

Appellant’s mandatory minimum sentence under section 9718, as that

statute has been struck down as unconstitutional in the wake of Alleyne v.

United States, 133 S.Ct. 2151, 2163 (2013) (holding that “facts that

increase mandatory minimum sentences must be submitted to the jury” and

found beyond a reasonable doubt).    See Commonwealth v. Terantino,

No. 2311 EDA 2014, unpublished memorandum at 6-8 (Pa. Super. filed April

14, 2015) (relying on Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super.

2014), aff’d by, 140 A.3d 651 (Pa. 2016) (holding that 42 Pa.C.S. § 9718 is

unconstitutional pursuant to Alleyne)). Accordingly, we vacated Appellant’s

sentence and remanded for resentencing.    See Terantino, No. 2311 EDA

2014, unpublished memorandum at 8.

      On remand, the trial court resentenced Appellant on August 6, 2015,

to a term of 4 to 8 years’ incarceration for his IDSI conviction, and to a

concurrent term of 2 to 4 years’ incarceration for his aggravated indecent

assault offense.    His statutory sexual assault conviction merged for

sentencing purposes.

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      Appellant filed a timely motion for reconsideration of his sentence,

which the court denied.    Appellant then filed a notice of appeal, but his

counsel at that time did not file a brief with this Court, resulting in

Appellant’s appeal being dismissed.          Thereafter, the court appointed

Appellant new counsel, Attorney Madden, who filed a petition under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, seeking the

restoration of Appellant’s right to appeal from his August 6, 2015

resentencing. On October 28, 2016, the court granted Appellant’s petition

and reinstated his right to file a direct appeal.    On November 23, 2016,

Attorney Madden filed the nunc pro tunc notice of appeal that is presently

before this Court.   Attorney Madden also timely complied with the trial

court’s order to file a Pa.R.A.P. 1925(b) statement, wherein she preserved

the following three issues for our review:

      1. The trial court erred in denying [Appellant’s] Motion to
      Dismiss for lack of jurisdiction due to the expiration of the
      statute of limitations.

      2. The trial court erred in denying [Appellant’s] Motion to
      Dismiss due to staleness and pre-arrest delay in violation of
      [Appellant’s] constitutional rights to due process.

      3. The trial court abused its discretion in imposing an excessive
      sentence.

Pa.R.A.P. 1925(b) Statement, 12/14/16, at 1.

      On March 6, 2017, Attorney Madden filed with this Court a petition to

withdraw as counsel. Therein, Attorney Madden erroneously states that she

is seeking to withdraw under Commonwealth v. Turner, 544 A.2d 927



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(Pa. 1998), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.

1988) (en banc). A Turner/Finley ‘no-merit’ letter is the appropriate filing

when counsel seeks to withdraw on appeal from the denial of PCRA relief.

See Commonwealth v. Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011).

While Attorney Madden was initially representing Appellant during the post-

conviction    proceedings   through   which    his   direct   appeal    rights   were

reinstated, the present appeal is from Appellant’s judgment of sentence.

Accordingly, to withdraw, Attorney Madden must satisfy the more stringent

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

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).

      We recognize that this Court has accepted an Anders/Santiago brief

in lieu of a Turner/Finley letter, reasoning that Anders/Santiago

“provides greater protection to a defendant” than does Turner/Finley.

Widgins, 29 A.3d at 817 n.2. However, we are aware of no legal authority

suggesting that this Court may accept a Turner/Finley ‘no-merit’ letter in

lieu of an Anders brief.

      Moreover, while we acknowledge that Attorney Madden has filed a

brief that seems to substantially comply with Anders/Santiago, the letter

that she sent to Appellant informing him that she is seeking to withdraw is

inadequate in one important regard. Specifically, Attorney Madden informed

Appellant that he has “the right to proceed with [his] appeal pro se or, if [he

is] financially able to do so, hire private counsel of [his] choosing.” Petition

to Withdraw, 3/6/17, at Exhibit E (letter to Appellant dated March 1, 2017).

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Arguably,   Attorney    Madden’s   statement   to   Appellant   would   satisfy

Turner/Finley, which requires counsel to, inter alia, “inform the PCRA

petitioner that upon the filing of counsel’s petition to withdraw, the

petitioner-appellant has the immediate right to proceed in the appeal pro se

or through privately-retained counsel.”    Commonwealth v. Muzzy, 141

A.2d 509, 512 (Pa. Super. 2016) (emphasis omitted). However, to comply

with Anders/Santiago, counsel must advise the appellant

     of his right to: “(1) retain new counsel to pursue the appeal; (2)
     proceed pro se on appeal; or (3) raise any points that the
     appellant deems worthy of the court[’]s attention in
     addition to the points raised by counsel in the Anders
     brief.” Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa.
     Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).

Commonwealth v. Orellana, 86 A.3d 877, 880 (Pa. Super. 2014)

(emphasis added).      Attorney Madden did not inform Appellant of the third

right emphasized above.

     Accordingly, Attorney Madden has not satisfied the requirements of

Anders/Santiago and we must deny her petition to withdraw and remand

with the following instructions. See Commonwealth v. Wrecks, 931 A.2d

717, 721 (Pa. Super. 2007) (“If counsel does not fulfill the aforesaid

technical requirements of Anders, this Court will deny the petition to

withdraw as counsel and remand the case with appropriate instructions

(e.g., directing counsel either to comply with Anders or file an advocate’s

brief on [the] [a]ppellant’s behalf).”) (citation omitted).     We direct that

Attorney Madden file - within 30 days of the date of this decision - either an


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advocate’s brief on Appellant’s behalf, or a petition to withdraw and brief

that comply with Anders/Santiago. Counsel must include therein a copy

of a letter to Appellant advising him of all three of the rights enumerated

above. Thereafter, we will provide Appellant thirty days, from the date of

Attorney Madden’s letter, within which to respond to counsel’s petition to

withdraw.

      Petition to withdraw denied.     Case remanded with instructions.

Jurisdiction retained.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/16/2017




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