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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
J-S72004-16
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).
-2-
J-S72004-16
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
-3-
J-S72004-16
file an amended pro se response, strictly limited to those issues previously
raised and properly preserved.
Case remanded with instructions. Panel jurisdiction is retained.
-4-
Com. v. Gordon, J.
Combined Opinion