“[C]ounsel is presumed to act professionally and ethically”
How later courts described this case
- “[C]ounsel is presumed to act professionally and ethically”
Written by the judges who cited it.
The opinion
DEL SOLE, Judge,
concurring and dissenting.
I join the Majority Opinion in affirming the conviction of the Defendant. Also, I join in the determination that counsel should be permitted to withdraw. I agree that the petition to withdraw need not contain a statement that counsel has communicated with the defendant where, as here, the record establishes that counsel seeking to withdraw was trial counsel. I would further hold, that where counsel attended a post-trial proceeding at which the defendant was also present a statement that counsel communicated with the defendant need not be included in the withdrawal petition. We can correctly assume that in these situations there was communication between attorney and client.
However, in cases involving the withdrawal of counsel who was not trial counsel, nor present with the defendant at a post-trial proceeding, I join the Concurring and Dissenting Opinion of Judge Popovich, and would continue to require that the petition seeking withdrawal contain the attorneys statement that counsel communicated with the client in arriving at the conclusion that there are no legitimate issues that warrant *294 relief. Judge Popovich is correct in observing that communication between counsel and client is necessary to assure adequate representation of criminal defendants.
Since the Majority attempts to eliminate this requirement I believe it necessary to raise three points. First, as the Majority sets forth in its Opinion, current counsel who seeks to withdraw was trial counsel and had many communications with his client, before, during, and after the verdict. Therefore, the communication requirement was established on the record and any discussion of the requirement of communication, or the contents of a withdrawal petition in this regard by the Majority is necessarily dicta.
Second, in direct appeal cases where post-trial counsel is not trial counsel, only communication between counsel and client can assure that non-record issues which warrant relief have been raised. For example, no review of the record alone can assure subsequent counsel that character evidence or alibi defense issues were properly explored. Only communication with the defendant will do so. Requiring counsel to certify that such communication occurred enhances the quality of the process, and serves to insure that issues not raised are truly not present.
Third, in Post Conviction collateral attacks, the petition must set forth any facts that form the basis for relief not contained in the record. Pa.R.Crim.P. 1502(a)(12)(ii). Also, for counsel to withdraw in collateral attack cases, the “no-merit” letter must list each issue petitioner wished raised and counsel’s assessment of those issues. See Commonwealth v. Turner, 518 Pa. 491 , 544 A.2d 927 (1988). Inherent in each of these requirements is communication between lawyer and defendant. Since the right to counsel in post-conviction matters does not rise to the constitutional level required in a direct appeal, I find it incongruous not to require communication between attorney and client in a direct appeal case, and a certification of that communication in a petition to withdraw where the record does not evidence a joint appearance before the court by counsel and defendant.