Com. v. Ackridge, A. ( 2023 )

J-S45019-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AMIN ACKRIDGE :
:
Appellant : No. 2186 EDA 2021
Appeal from the PCRA Order Entered September 29, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0007098-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AMIN ACKRIDGE :
:
Appellant : No. 2187 EDA 2021
Appeal from the PCRA Order Entered September 29, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0007099-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AMIN ACKRIDGE :
:
Appellant : No. 2188 EDA 2021
Appeal from the PCRA Order Entered September 29, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0007100-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
J-S45019-22
:
v. :
:
:
AMIN ACKRIDGE :
:
Appellant : No. 2189 EDA 2021
Appeal from the PCRA Order Entered September 29, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0007101-2016
BEFORE: OLSON, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY STABILE, J.: FILED APRIL 11, 2023
Appellant, Amin Ackridge, appeals from the September 29, 2021 order
of the Court of Common Pleas of Philadelphia County dismissing his petition
filed pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S.A. §§ 9541-46. PCRA counsel has filed an Anders1 brief in which he
concludes all issues lack merit. As we find counsel’s attempt to withdraw is
deficient, we instruct counsel to correct those deficiencies before we may
address this appeal on its merits.
Briefly, following a trial, Appellant was convicted of twenty-eight
offenses, including multiple counts each of attempted murder, robbery,
conspiracy, and possession of a firearm prohibited. The trial court imposed
consecutive guideline-range sentences for each conviction that did not merge,
resulting in an aggregate sentence of 194 to 456 years of imprisonment. After
granting Appellant’s motion for reconsideration, the trial court resentenced
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1 Anders v. California, 386 U.S. 738 (1967).
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Appellant to an aggregate sentence of 178 to 416 years of imprisonment.
Appellant timely filed a notice of appeal to this Court. We affirmed the
judgment of sentence. See Commonwealth v. Ackridge, No. 2868 EDA
2017, unpublished memorandum (Pa. Super. filed May 24, 2019). Our
Supreme Court denied Appellant’s petition for allowance of appeal on January
16, 2020. See Commonwealth v. Ackridge, No. 328 EAL 2019 (Pa. 2020).
Appellant timely filed the instant pro se PCRA petition on
November 17, 2020 on all four dockets, claiming that his
convictions or sentences resulted from a violation of the
Constitution, ineffective assistance of counsel, and the imposition
of a sentence greater than the lawful maximum. [The PCRA court]
appointed Peter A. Levin to serve as PCRA Counsel for Appellant.
On June 11, 2021, Appellant’s PCRA counsel filed a no-merit letter
with [the PCRA court] pursuant to Commonwealth v. Turner,
544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d
213 (Pa. Super. 1988) [(en banc)]. In this letter, counsel stated
that although Appellant’s PCRA petition was timely and Appellant
was eligible for relief, the issues Appellant raised were without
arguable merit. Appellant’s PCRA counsel additionally requested
permission to withdraw as counsel of record for Appellant.
On July 12, 2021, after independently reviewing the Appellant’s
PCRA petition, PCRA counsel’s Turner/Finley no-merit letter,
and the record as a whole, [the PCRA court] determined that the
issues raised by Appellant in his PCRA petition were without merit
and filed a [t]wenty-[d]ay Notice to Dismiss pursuant to
Pa.R.Crim.P. 907. On September 29, 2021, [the PCRA court]
entered an Order formally dismissing Appellant’s PCRA petition,
permitting Peter A. Levin to withdraw as counsel, and appointing
D. Wesley Cornish to serve as PCRA appellate counsel for
Appellant. On October 21, 2021, Appellant filed a timely notice of
appeal from the dismissal of his PCRA petition without an
evidentiary hearing. On October 22, 2021, [the PCRA court]
entered an order directing Appellant to file a Concise Statement
of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(b),
which Appellant filed on November 4, 2021.
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PCRA Court Opinion, 4/7/22, at 1-4.
We preliminarily address a potential Walker2 issue affecting the instant
appeal.
On September 29, 2021, the trial court issued an order dismissing
Appellant’s PCRA petition at four individual trial court dockets. Thereafter,
counsel for Appellant timely filed four notices of appeal challenging the PCRA
court’s denial at each trial court docket. These notices, however, listed all
four trial court dockets on each notice, rather than listing a single
corresponding trial court docket. Pennsylvania Rule of Appellate Procedure
341(a) and its Note require the filing of separate notices of appeal when a
single order resolves issues arising on more than one trial court docket. The
Supreme Court of Pennsylvania has confirmed a notice of appeal that fails to
comply with Rule 341 and its Note may result in quashal of the appeal. See
Walker, supra.
Similar to the instant appeal, this Court reviewed a case where an
appellant filed four notices of appeal listing four trial court docket numbers on
each notice, but one trial court docket number was italicized on each. See
Commonwealth v. Johnson, 236 A.3d 1141 (Pa. Super. 2020) (en banc).
There, this Court noted that Walker requires an appellant to file a “separate”
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2 Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). In Walker, our
Supreme Court held that appellants are required to file separate notices of
appeal when a single order resolves issues arising on more than one lower
court docket. The decision applies to all cases filed after June 1, 2018.
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notice of appeal for each trial court docket being challenged. Johnson, 236
A.3d at 1148. Upon review, this Court concluded that the appellant in Johnson
complied because it was clear that he filed a separate notice of appeal for each
of the four trial court docket numbers as an individual number was italicized
on the separate notices of appeal. Id. Accordingly, this Court in Johnson
declined to quash.
In the instant case, the first page of each notice of appeal filed by
counsel has a check mark next to an individual trial court docket number.
While it is unclear as to whether these marks were made by counsel or a Clerk
of Courts, these marks were used by this Court’s Prothonotary in designating
which trial court docket corresponded to each case on this Court’s docket.3
Alternatively, we note that counsel attached a copy of an individual trial
court docket to each notice of appeal, even labeling them as “Exhibit.” The
attached trial court dockets, however, do not correspond with the check marks
on the first page of each notice of appeal.4
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3 Using the check marks, this Court’s dockets and the trial court’s dockets
correspond as follows:
2186 EDA 2021 corresponds to CP-51-CR-0007098-2016
2187 EDA 2021 corresponds to CP-51-CR-0007099-2016
2188 EDA 2021 corresponds to CP-51-CR-0007100-2016
2189 EDA 2021 corresponds to CP-51-CR-0007101-2016
4Using the attached Exhibits, this Court’s dockets and the trial court’s dockets
correspond as follows:
(Footnote Continued Next Page)
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Because Appellant appealed from four dockets numbers and filed four
notices of appeal, we conclude that Appellant complied with Walker. See
Johnson, 236 A.2d at 1148.
Turning to the merits of this case, on appeal, Appellant raises the
following issue for our review:
Did the trial court err, abuse its discretion, and/or make a mistake
of law when it denied Appellant’s [PCRA] petition for relief and
new trial . . . by accepting PCRA counsel’s Finley Letter, negating
improper consolidation, an illegal sentence, removal of juror,
introduction of testimony about a Delaware robbery case, and
allowance of skin tone testimony without an evidentiary hearing?
Appellant’s Brief, at 2.
Counsel identifies his appellate brief as Appellant’s Brief. However, the
wording counsel used to address some of the issues on appeal, along with two
lone references to Anders (on the cover page and the last page), makes it
clear that this is not an advocate brief. To the extent that the current brief is
indeed an Anders brief, we note that counsel’s reliance on Anders is
misplaced.
It is well known that Anders applies only when counsel seeks to
withdraw from representation on direct appeal. Where, as here, counsel seeks
to withdraw from representation on collateral appeal, Turner/Finley applies.
However, we may accept an Anders brief in lieu of a Turner/Finley brief
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2186 EDA 2021 corresponds to CP-51-CR-0007101-2016
2187 EDA 2021 corresponds to CP-51-CR-0007100-2016
2188 EDA 2021 corresponds to CP-51-CR-0007099-2016
2189 EDA 2021 corresponds to CP-51-CR-0007098-2016
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because an Anders brief offers broader protection. See Commonwealth v.
Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011). If counsel has filed an
Anders brief instead of a Turner/Finley brief, we analyze whether counsel’s
brief meets the standards of Turner/Finley.
A Turner/Finley brief must: (1) detail the nature and extent of
counsel’s review; (2) list each issue the petitioner wished to have reviewed;
and (3) explain why the petitioner’s issues were meritless. See
Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citation
omitted). “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).
If counsel has substantially complied with these requirements, we conduct our
own independent review to determine if the issues raised are in fact meritless.
If they are, we grant counsel’s petition to withdraw. Id.Our review of the record reveals that, while counsel filed an Anders
brief concluding that the issues raised on appeal “all lack merit,” Appellant’s
Brief at 17,5 counsel did not file a contemporaneous application to withdraw
from representation, and by extension of that failure, did not attach to that
application a letter advising Appellant of his rights. See Commonwealth v.
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5 While we express no opinion on whether the current brief meets the briefing
requirements under Turner/Finley, we take this opportunity to remind
counsel that a Turner/Finley brief must, inter alia, detail the nature and
extent of counsel’s review of the case.
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Millisock, 873 A.2d 748, 752 (Pa. Super. 2005). It appears, therefore,
counsel failed to provide proper notice to Appellant of his rights going forward.
The record is devoid of any indication that PCRA counsel sent a copy of his
brief to Appellant or that he sent him a letter advising him of his right to
proceed pro se or retain new counsel and raise any additional points that he
deemed worthy of this Court’s attention.
Accordingly, we direct counsel to file either an advocate’s brief or a
petition to withdraw and a brief that meet the requirements pursuant to
Turner/Finley within 30 days. If counsel elects to file a petition to withdraw,
he must also comply with the notice requirements of Millisock, and file proof
thereof with this Court. Specifically, counsel must attach to the petition a
copy of a letter sent to Appellant fully advising him of his immediate right,
either pro se or with privately retained counsel, to file a brief on any additional
points he deems worthy of review, and advise Appellant that he may respond,
within 30 days of counsel’s letter, to counsel’s brief, if he so chooses. The
Commonwealth will then have 30 days to respond to anything filed by current
PCRA counsel or Appellant.
PCRA counsel may file an application to withdraw and a Turner/Finley
brief within thirty (30) days of this memorandum’s date and provide notice to
Appellant pursuant to Turner/Finley. Appellant may respond to the
application within thirty (30) days of the date of the letter notifying him of the
application to withdraw. In the alternative, PCRA counsel may file an
advocate’s brief within thirty (30) days of the date of this memorandum. In
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either event, the Commonwealth will be permitted to file a response to any
such filing by either PCRA counsel or Appellant, within thirty (30) days of the
date they are filed in this Court.
Panel jurisdiction retained.
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