Com. v. Debois, M. ( 2021 )

J-S36045-21
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MACK DEBOIS, :
:
Appellant : No. 82 EDA 2021
Appeal from the PCRA Order Entered November 24, 2020
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004319-2018
BEFORE: LAZARUS, J., KING, J., AND COLINS, J.*:
JUDGMENT ORDER BY COLINS, J.: FILED DECEMBER 10, 2021
Appellant, Mack Debois, appeals from the order entered November 24,
2020, dismissing his first petition filed pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S. §§ 9541–9546. With this appeal, Appellant’s counsel
has filed a motion to withdraw as counsel and an Anders1 Brief. Before
counsel may withdraw under the PCRA, we must determine if counsel has
complied with the technical requirements of Turner and Finley.
1 Anders v. California, 386 U.S. 738 (1967). Although counsel has filed an
Anders brief, the proper mechanism when seeking to withdraw in PCRA
proceedings is a Turner/Finley no-merit letter. See Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213(Pa. Super. 1988) (en banc). However, because an Anders brief provides
greater protection to a criminal appellant, we may accept an Anders brief in
lieu of a Turner/Finley no-merit letter. Commonwealth v. Widgins, 29
A.3d 816, 817 n.2 (Pa. Super. 2011).
*Retired Senior Judge assigned to the Superior Court.
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Pursuant to Turner/Finley, independent review of the record by
competent counsel is required before withdrawal on collateral appeal is
permitted. Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009).
Counsel is then required to submit a no-merit letter (1) detailing the nature
and extent of his or her review; (2) listing each issue the petitioner wished to
have reviewed; and (3) providing an explanation of why the petitioner’s issues
were meritless. Id. The court then conducts its own independent review of
the record to determine if the petition is meritless. Id. “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.” Commonwealth v. Wrecks, 931
A.2d 717, 721 (Pa. Super. 2007) (citation omitted).
Our review of the record indicates that counsel did not serve a copy of
the Anders brief and motion to withdraw on Appellant. Instead, the proofs
of service attached to counsel’s filings indicate service on the Commonwealth
only. In addition, no proof of service was included with the no-merit letter
appended to the motion to withdraw. Thus, counsel has not complied with
the Turner/Finley notice requirements.
Accordingly, we deny counsel’s motion to withdraw and direct counsel,
within ten days of the filing date of this decision, to send a copy of the no-
merit Letter, motion to withdraw, and Anders brief to Appellant with amended
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J-S36045-21
certificates demonstrating proper service on Appellant and the
Commonwealth.
Motion to withdraw as counsel denied. Panel jurisdiction retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/10/2021
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