Com. v. Harris

• Citation: 553 A.2d 428,381 Pa.Super. 206
• Parties: COMMONWEALTH of Pennsylvania v. Donald HARRIS, Appellant.
• Decision Date: 20 January 1989
• Court: Superior Court of Pennsylvania

Page 428

553 A.2d 428

381 Pa.Super. 206

COMMONWEALTH of Pennsylvania v. Donald HARRIS, Appellant.

Superior Court of Pennsylvania.

Submitted June 22, 1987.

Filed Jan. 20, 1989.

[381 Pa.Super. 207] Mitchell S. Strutin, Philadelphia, for appellant.

Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before BROSKY, KELLY and WATKINS, JJ.

KELLY, Judge:

Counsel appointed to represent appellant, Donald Harris, on appeal from an order denying appellant's petition for post-conviction relief, has filed what purports to be an Anders brief and seeks permission to withdraw as counsel. Though we find counsel's purported Anders brief deficient in several respects, we nonetheless grant withdrawal and affirm the order denying post-conviction relief. We do so based on our conclusions that administrative rather than substantive interests were prejudiced by the deficiencies in the Anders brief submitted, and that further delay of the disposition of this frivolous appeal would not be appropriate.

FACTS AND PROCEDURAL HISTORY

On November 21, 1984, following an impeccable guilty plea colloquy, appellant entered an open guilty plea to rape, indecent assault, aggravated assault, simple assault and unlawful restraint charges. The factual basis for the plea was that on September 10, 1984, appellant had raped and beaten the female victim in an alley near 38th Street and Haverford Avenue in Philadelphia. A male friend of the victim happened upon the scene and intervened. Appellant attempted to flee but was apprehended by the victim and her friend and held until police arrived. Appellant acknowledged his intent to enter his plea based upon the prosecution's summary of the evidence, and then the court announced its acceptance of the plea. Appellant was informed by the trial court that he had ten days to seek withdrawal of his guilty plea. (N.T. 11/21/84 at 2-13). On January 31, 1985, appellant was sentenced to two concurrent terms of five to ten years imprisonment on the rape and aggravated assault convictions; sentence on the remaining convictions was suspended. Appellant was informed by the trial court that he had ten days in which to file a motion to modify sentence and thirty days in which to file notice of appeal. (N.T. 1/31/85 at 2-5).

On April 9, 1985, appellant filed an untimely pro se motion to withdraw his guilty plea. Appellant alleged that he was innocent and that court-appointed counsel had scared him into pleading guilty. The motion was denied April 11, 1985.

On May 21, 1985, appellant filed a pro se motion seeking a copy of the transcripts of the prior proceedings. On July 10, 1985, appellant filed a pro se petition under the Post Conviction Hearing Act (PCHA), 42 Pa.C.S.A. § 9541 et seq. Appellant alleged that prior counsel had indicated that if appellant On September 24, 1985, appellant filed a second pro se PCHA petition. Appellant again sought relief based upon a somewhat embellished allegation which follows verbatim:

pled guilty, counsel could get appellant a maximum sentence of three years, but if appellant refused to plead guilty, counsel would see to it that appellant received the maximum sentence possible. (PCHA Petition 7/10/85 at 3). On September 11, 1985, however, appellant filed a pro se petition to withdraw his PCHA petition. No reason was given for the withdrawal request.

I am only (19) yrs. old, at the time of enterting the guilty plea, my Attorney, ..., only told me that if I went to trial, upon conviction the State would impose a sent. of (20) yrs. upon me; but if I pleaded guilty, he would get me two to three yrs. He didn't inform me that by pleaing guilty, I would waive my Const. righ right, to trial by jury, or the Judge if I chosed. I was'nt aware that any waiver of Const. rights, must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder; possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. In the absent of the following my gulity is invaild, and Counsel, was ineffective, for directing me to plea upon fale false promies. which I did'nt receive.

(PCHA Petition 9/24/85 at 3). The petition was accompanied by a three page typewritten pro se memorandum of law in support of the petition. Appellant indicated that he was without financial resources and requested that the trial court appoint counsel to assist him. (PCHA Petition 9/24/85 at 5-6).

From here the record contains gaps, ambiguities, and apparent contradictions. The portion of the PCHA petition relating to authorization for appointment of counsel is unexecuted and no order appointing counsel is entered on the docket certified to this Court. Nonetheless, beginning January 14, 1986, the trial court's status listings indicate that counsel had been appointed to represent appellant. The status listing for September 18, 1986, indicates that PCHA counsel had received the transcripts of the prior proceedings. On November 13, 1986, the status listing notes, "Possible Finley."¹ On December 1, 1986, the status listing notes, " 'Finley' disp. Atty. to supplement letter." On December 5, 1986, the final status listing states, " 'Finley' Dispo. PCHA Petition is hereby denied." No "Finley" letter or supplement appears in the record certified to this Court. There is no indication in the record that PCHA counsel ever spoke with appellant concerning the petition.

On December 5, 1986, an order was entered denying appellant's unamended pro se PCHA petition. On December 16, 1986, PCHA counsel filed notice of appeal to this Court on behalf of appellant. On December 15, 1986, PCHA counsel filed a "Verified Statement" that on July 26, 1985² he had been appointed to represent appellant and that appellant's pauper status had not substantially changed since that date. On January 7, 1986, PCHA counsel was permitted to withdraw as counsel for appellant.

On January 13, 1987, new counsel was appointed to represent appellant in his appeal to this Court. He has filed what purports to be an "Anders Brief" and seeks permission to withdraw as counsel. Counsel's Statement of the Case is as follows:

The appellant was arrested and charged in Bills of Information nos. 2252-2255 September Term, 1984 with rape, aggravated assault and related offenses. On November 21, 1984, the appellant entered a guilty plea to all charges before the Following sentencing, the appellant did not file a motion to withdraw his guilty plea, a motion to modify sentence or an appeal to this Court. The appellant filed a petition under the Post Conviction Hearing Act contending that his guilty plea was involuntary. The lower court appointed counsel to represent the appellant.

Honorable Thomas Shiomos. On January 31, 1985, the appellant was sentenced to concurrent five to ten year terms for rape (Bill no. 2254) and aggravated assault (Bill no. 2252).

By Order dated December 5, 1986, the lower court denied the appellant relief under the Post Conviction Hearing Act. Prior counsel was permitted to withdraw following the filing of a notice of appeal to this Court. Present counsel was then appointed for purposes of this appeal.

(Anders Brief at 4). The Summary of Argument is, "[a]fter a complete and careful review of the entire record in this matter it is clear that there are no meritorious issues presented and that this appeal is wholly frivolous." The Argument section states:

Appellate counsel has made a complete and careful review of the record in this matter concerning the appellant's entry of a guilty plea to rape, aggravated assault and related offenses. During this review, appellate counsel was mindful of the following issues which might arguably support this appeal:

1. the legality of the sentence.

2. the excessiveness of the sentence.

3. the voluntariness of the guilty plea.

4. the elements of the guilty plea colloquy.

5. the availability of legal defenses to the defendant.

After a review of the record in this matter and the applicable law, appellate counsel can only conclude that no issue of arguable merit exists and that this appeal is wholly frivolous. see Anders v. California, 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] (1967).

Appellate counsel continues to recognize appellant's right to counsel as advocate. Appellate counsel further realizes that he is required, as a result of his conclusions, to seek permission to withdraw as counsel for appellant.

In accordance with the mandate of Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981), appellate counsel now informs appellant of the following:

a. that appellate counsel will be filing a Petition with this Court seeking permission to withdraw;

b. that a copy of this Brief will be forwarded to him at his last known address; and

c. that he has the right to retain new counsel or raise any points he may deem worthy of consideration.

(Anders Brief at 6-7). Appellate counsel then concludes, "[f]or the foregoing reasons, it is respectfully requested that this Honorable Court, prior to reaching a decision, make an independent review of the record in this matter." (Anders Brief at 8).

Appellate counsel has filed what purports to be an Anders brief requesting allowance to withdraw as counsel. The Anders brief fails, however, to meet the minimum requisites of Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) for "No Merit Letters" in PCHA proceedings as set forth by this Court in Commonwealth v. Finley, --- Pa.Super. ----, ----, 550 A.2d 213, 215 (1988). Specifically, the purported Anders brief fails to adequately detail counsel's review of the record and fails entirely to list the issues which appellant wished to be reviewed, i.e. that his plea was involuntary as the result of threats alleged to have been made by court-appointed counsel.

In Commonwealth v. Turner, supra, our Supreme Court specifically noted that coun...