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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CHRISTOPHER R. BAKER, :
:
Appellant : No. 242 WDA 2014
Appeal from the PCRA Order January 23, 2014,
Court of Common Pleas, Potter County,
Criminal Division at No. CP-53-MD-0000119-1992
BEFORE: DONOHUE, MUNDY and FITZGERALD*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED MAY 13, 2015
Christopher R. Baker (“Baker”) appeals from the January 23, 2014
order entered by the Court of Common Pleas, Potter County. This case
returns to this Court for the third time.
On April 28, 2014, appointed counsel, Attorney Brent Petrosky
(“Attorney Petrosky”), filed a brief with this Court that appeared to be an
attempt to withdraw as counsel pursuant to Anders v. California, 386 U.S.
738 (1967). In a Memorandum dated November 26, 2014,1 we concluded
that Attorney Petrosky’s attempt to withdraw was deficient and remanded
this case to the PCRA court for a Grazier2 hearing to determine if Baker
wished to proceed pro se on appeal or, if he chose to have a counseled
1
We note that we improperly referred to this Memorandum as being dated
December 8, 2014 in our March 31, 2015 Judgment Order.
2
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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appeal, with instructions for Attorney Petrosky to file with this Court a proper
advocate’s brief or a “no-merit” letter that complied with the requirements of
Turner/Finley.3 Commonwealth v. Baker, 242 WDA 2014, at 5 (Pa.
Super. Nov. 26, 2014) (unpublished memorandum). On February 17, 2015,
after conducting a Grazier hearing, the PCRA court determined that Baker
requested continued representation of counsel.4 On March 9, 2015, Attorney
Petrosky filed a petition to withdraw as counsel and “no-merit” letter dated
February 26, 2015 with this Court.
Our review of Attorney Petrosky’s February 26, 2015 “no-merit” letter
revealed that he failed to satisfy the requirements of Turner/Finley, as he
did not address all of the issues raised by Baker in his February 13, 2014
Concise Statement of Matters Complained of on Appeal, and failed to detail
the nature and extent of his review. Commonwealth v. Baker, 242 WDA
2014, at 2 (Pa. Super. March 31, 2015) (unpublished judgment order).
Accordingly, in a Judgment Order dated March 31, 2015, we denied Attorney
Petrosky’s petition to withdraw and again remanded this case with
instructions for Attorney Petrosky to submit within thirty days a revised “no-
3
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988).
4
After remand, Baker filed a Motion for Appointment of Counsel on
December 17, 2014, requesting the appointment of new counsel. The PCRA
court denied Baker’s request, stating, “there is no evidence that there is a
breakdown in the attorney client relationship.” PCRA Court Order, 2/17/15.
Thus, Attorney Petrosky’s representation of Baker was continued by the
PCRA court.
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merit” letter that comports with all of the requirements of Turner/Finley.
Id. at 2-3. In particular, we instructed Attorney Petrosky to:
1. detail the nature and extent of counsel’s diligent
review of the case; AND
2. list all four issues raised by Appellant in his
February 13, 2014, Concise Statement of Errors
Complained of on Appeal; AND
3. explain why and how each of Appellant’s four
issues lack merit; AND
4. request permission to withdraw.
Id. at 3. We further instructed Attorney Petrosky to send to Baker a copy of
the “no-merit” letter, the petition to withdraw, and a statement advising
Appellant of his right to proceed pro se or by new counsel. Id.
On April 15, 2015, Attorney Petrosky filed a supplemental petition to
withdraw and “no-merit” letter dated April 2, 2015. Upon review of Attorney
Petrosky’s supplemental petition to withdraw and “no-merit” letter, we
conclude that the “no-merit” letter still does not comply with the
requirements of Turner/Finley for several reasons.
First, although Attorney Petrosky filed a document titled as a petition
to withdraw as counsel, at no point in his petition or in his “no-merit” letter
does he request permission to withdraw. Second, while Attorney Petrosky
discusses the nature and extent of his review of the case in his petition to
withdraw, he makes no mention of these efforts in his “no-merit” letter.
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Third, Attorney Petrosky failed to comply with our instructions to list
all four issues raised by Baker and explain why and how each of the four
issues lack merit. Attorney Petrosky addresses the two issues raised by
Baker that he failed to address in his February 26, 2015 “no-merit” letter,
but fails to address the two issues he previously discussed in that “no-merit”
letter. Instead, Attorney Petrosky simply refers to the February 26, 2014
“no-merit” letter and states that he previously discussed those issues “in
detail.” See Attorney Petrosky’s “No-Merit” Letter, 4/2/15, at 1-2 (stating,
“I understand that all of your issues raised at the Hearing of February 17,
2015, were discussed in my letter to you of February 26, 2015. … The Miller
v. Alabama decision was previously discussed in detail. … Commonwealth v.
Cunningham was previously discussed in great detail.”).
Finally, our review of Attorney Petrosky’s April 2, 2015 “no-merit”
letter reveals that he failed to provide a statement advising Baker of his
right to proceed pro se or by new counsel. The law is well settled that in
addition to submitting a “no-merit” letter that complies with the
Turner/Finley requirements, counsel must also satisfy the following
technical prerequisites: “Counsel must [] 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.” Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.
Super. 2007) (emphasis added) (citing Commonwealth v. Friend, 896
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A.2d 607, 615 (Pa. Super. 2006)). As Attorney Petrosky failed to advise
Baker of his right to proceed pro se or to retain new counsel in the April 2,
2015 “no-merit” letter, we conclude that Attorney Petrosky failed to satisfy
the technical demands of Turner/Finley.5
This Court has now reviewed three deficient attempts by Attorney
Petrosky to withdraw as counsel despite our efforts to provide instructions
detailing how to comply with the Turner/Finley requirements. As such,
Attorney Petrosky has demonstrated an inability or unwillingness to comply
with the well-established procedure to withdraw as counsel pursuant to
Turner/Finley. Similarly, Attorney Petrosky has demonstrated that he is
unable or unwilling to comply with this Court’s instructions. As a result, we
remand this case to the PCRA court for a period of thirty days for the
appointment of new counsel.6 Following the appointment of new counsel, an
5
We note that if we view the amalgam of Attorney Petrosky’s attempts to
withdraw as counsel together, he arguably comes close to satisfying the
Turner/Finley requirements. We do not know, however, if Attorney
Petrosky attached copies of his previously filed Anders brief and “no-merit”
letters to his April 2, 2015 “no-merit” letter that he sent to Baker.
Regardless, we conclude that it would be unreasonable to ask Baker to piece
together Attorney Petrosky’s petitions and letters, which date back to April
28, 2014, to ascertain his rights and responsibilities under Turner/Finley in
order to pursue the issues he wished to raise on appeal. As such, given
Attorney Petrosky’s failure to satisfy the technical demands of
Turner/Finley in his April 2, 2015 “no-merit” letter, we conclude that
Attorney Petrosky’s attempt to withdraw is yet again deficient.
6
As we stated in our Memorandum dated November 26, 2014, as this is
Baker’s fourth PCRA petition, he is not entitled to counsel. Nevertheless,
since the PCRA court decided to appoint counsel to represent Baker in this
matter, we conclude that Baker is entitled to “competent, thorough, and
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advocate’s brief or a “no-merit” letter or brief pursuant to Turner/Finley
must be filed with this Court by new counsel within thirty days of the PCRA
court’s appointment. Furthermore, since Attorney Petrosky is court
appointed and has abdicated his duties on three separate occasions, we
direct the PCRA court to withhold attorney’s fees from him and/or recover
those fees already paid to Attorney Petrosky for his work relating to Baker’s
appeal.
Case remanded. Panel jurisdiction retained.
Fitzgerald, J. joins the Memorandum.
Mundy, J. concurs in the result.
prepared representation” in accordance with Rule 1.1 of the Rules of
Professional Conduct, and diligent and zealous representation in accordance
with Rule 1.3 of the Rules of Professional Conduct.
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