Wesley v. Pennsylvania Bd. of Probation and Parole
| Decision Date | 14 August 1992 |
| Citation | 614 A.2d 355,150 Pa.Cmwlth. 54 |
| Parties | Ronald WESLEY a/k/a James Hinton, Petitioner, v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent. |
| Court | Pennsylvania Commonwealth Court |
Joseph J. Hylan, Acting Public Defender, for petitioner.
Robert Greevy, for respondent.
Before DOYLE and FRIEDMAN, JJ., and BARRY, Senior Judge.
Ronald Wesley, a/k/a James Hinton, appealed from a parole revocation decision of the Pennsylvania Board of Probation and Parole recommitting him as a convicted parole violator. The Montgomery County Public Defender's office (Public Defender) represents Wesley in these proceedings. The Public Defender filed Wesley's initial petition for review and has subsequently filed a petition to withdraw as counsel and a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We find the Public Defender's Anders brief defective, deny the petition to withdraw without prejudice to refile and do not yet reach the merits of Wesley's appeal.
Counsel representing a recommitted parolee on appeal to this court has two procedural avenues to petition for withdrawal. Traditionally, counsel would file the petition to withdraw, notify the parolee of the request, furnish the parolee a copy of the Anders brief and advise the parolee of his right to retain new counsel or raise any new points deemed worthy of consideration. Craig v. Pennsylvania Board of Probation and Parole, 93 Pa.Commonwealth Ct. 586, 502 A.2d 758 (1985). Once the "court is satisfied that counsel's assessment of the appeal is correct, counsel has fully discharged her responsibility." Strothers v. Pennsylvania Board of Probation and Parole, 124 Pa.Commonwealth Ct. 1, 4, 554 A.2d 1017, 1018-19 (1989). The court then considers the merits of the appeal to determine whether it is wholly frivolous.
Alternatively, counsel may file a no-merit letter rather than an Anders brief. "The 'no-merit' letter must contain (1) the nature and extent of the counsel's review, (2) the issues petitioner wishes to raise, and (3) counsel's analysis in concluding petitioner's appeal to be frivolous." Epps v. Pennsylvania Board of Probation and Parole, 129 Pa.Commonwealth Ct. 240, 244, 129 Pa.Cmwlth. 240, 565 A.2d 214, 216 (1989) (citing, Commonwealth v. Turner, 518 Pa. 491, 494, 544 A.2d 927, 928 (1988)). Counsel has discharged their responsibility if they allege that the appeal is meritless, an allegation of frivolous appeal is not required. Frankhouser v. Pennsylvania Board of Probation and Parole, Pa.Commonwealth Ct. at , 598 A.2d at 607 (1991). Once a counsel has complied with the requirements of a no-merit letter, the court will "make an independent evaluation of the proceedings before the board to determine whether [parolee/petitioner's] appeal is meritless." Frankhouser, 143 Pa.Commonwealth Ct. at 83, 598 A.2d at 608-09 (1991).
Both Epps and Strothers are clear that the court does not reach an examination of the merits of the appeal until it is satisfied that counsel has discharged its responsibility in complying with the technical requirements of an Anders brief or a no-merit letter. Our Supreme Court has expressly stated the minimum requirements of counsel's analysis in a no-merit letter and the relationship of a such a letter to an Anders brief. Counsel must present "each issue the petitioner wished to have raised, with counsel's explanation of why those issues were meritless;" the requirements of a no-merit letter are less rigorous than the tortuous procedures required under Anders. Turner, 518 Pa. at 494-95, 544 A.2d at 928-29 (1988); see also Frankhouser, 143 Pa.Commonwealth Ct. at 80-83, 598 A.2d at 608 (1991). Thus, if a no-merit letter requires less than an Anders brief, an Anders brief must contain at a minimum, the list of issues raised by petitioner and explanation of why those issues are...
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