explaining the procedure to withdraw in the PCRA context, including the filing of a ‘no-merit’ letter detailing why the issue(s) the petitioner seeks to raise are meritless
How later courts described this case
- explaining the procedure to withdraw in the PCRA context, including the filing of a ‘no-merit’ letter detailing why the issue(s) the petitioner seeks to raise are meritless
- describing requirements of Finley letter when appointed counsel seeks to withdraw from a collateral appeal filed under the PCRA, attesting that no issue of arguable merit exists
- stating, “we will not deny an application to withdraw simply because an attorney has filed an Anders brief where a no-merit letter would suffice”
- allowing appointed counsel in a post- conviction proceeding to withdraw upon the submission of a no-merit letter outlining counsel’s assessment that the case lacked merit
Written by the judges who cited it.
The opinion
KELLY, Judge,
concurring and dissenting:
In light of our Supreme Court’s unequivocal statement that “the procedures followed in the Finley case accorded the PCHA petitioner all the protection incorporated into the right to appointed counsel in collateral proceedings under the PCHA,” our disposition of this appeal is a foregone conclusion. See Commonwealth v. Turner, 518 Pa. 491, 495 , 544 A.2d 927, 928 (1988).
I nonetheless dissent from that portion of the majority opinion which suggests that counsel seeking to withdraw in future PCHA appeals will be required to explain why petitioner’s issues were meritless. It is true that neither *401 federal nor Pennsylvania law precludes court-appointed counsel from including in his Finley letter accompanying his motion to withdraw as counsel an explanation of the absence of merit in the petitioner’s issues. See McCoy v. Court of Appeals, 486 U.S. —, 108 S.Ct. 1895 , 100 L.Ed.2d 440 (1988); Commonwealth v. McClendon, 495 Pa. 467 , 434 A.2d 1185 (1981). It is quite a different thing, however, to suggest that such an explanation is required. Our Supreme Court has not promulgated a rule like that at issue in McCoy (which explicitly required such an explanation).
While Turner permits substitution of a Finley letter for an Anders brief, I find nothing in Turner to require inclusion of such an explanation, or indeed to preclude continued disapproval of a counsel’s usurpation of the prosecutorial function and “sandbagging” of his client by including in a Finley letter a gratuitous explanation of the absence of merit of his client’s issues. Cf. Commonwealth v. Jones, 451 Pa. 69, 75 , 301 A.2d 811, 815 (1973); Commonwealth v. Green, 355 Pa.Super. 451, 460, 518 A.2d 1008, 1012 (1986); Commonwealth v. Brockington, 268 Pa.Super. 54, 58 , 407 A.2d 433, 435 (1979).
If the petitioner’s issues are truly frivolous that fact will be apparent and counsel’s explanation will do nothing to enhance judicial review of the motion to withdraw or the appeal, yet it may do much to undermine the appearance of fairness which counsel’s original appointment was intended to communicate to the petitioner and to the community as a whole. While actual prejudice to the accused does not arise from such an explanation, a distinct and unnecessary appearance of unfairness does.
Consequently, though I am inclined to agree with Judge Wieand that the promulgation of a rule for future cases is unnecessary to the disposition of this case and beyond the function of this Court, in response to the suggestion of the majority regarding Turner’s implications for future cases, I note that I would definitely not construe Turner to require that a Finley letter contain an explanation of “why petitioner’s issues were meritless.”