J

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*Retired Senior Judge assigned to the Superior Court. NON

- PRECEDENTIAL DECISION

– SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.

GARY R. KLINGER
,

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 319 M DA 2020

Appeal from the PCRA Order Entered December 12, 2019 in the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP

- 22

- CR

- 0002081

- 2008

BEFORE: STABILE , J.
, NICHOLS , J. and STRASSBURGER, J.*

MEMORANDUM BY S TRASSBURGER, J.: FILED FEBRUARY 10 , 2021

Gary R. Klinger (Appellant) appeals from the December 12, 2019 order

dismissing his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541

- 9546

. 1 Counsel has filed a petition to withdraw

and a brief pursuant to Anders v. California , 386 U.S. 738 (1967),

and Commonwealth v. McClendon , 434 A.2d 1185 (Pa. 1981). 2 Before

1 Appellant’s underlying PCRA petition also collaterally attacked his convicti ons at docket number 4142 of 208, which were part of his negotiated plea agreement with th e instant docket number. We note that Appellant has only filed a notice of appeal at docket number 2081 of 2008.

2 In this Court, counsel filed an Anders brief seeking to withdraw as counsel on appeal.

A Turner/Finley no

- merit letter, however, is the app ropriate filing. See Commonwealth v. Turner , [544 A.2d 927 (Pa. 1988) ]; Commonwealth v. Finley
, [550 A.2d 213 (Pa. Super. 1988) ] ( en banc ). Because an Anders brief provides greater (Footnote Continued Next Page)J

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counsel may withdraw under the PCRA, w e must determine if counsel has

complied with the technical requirements of Turner and Finley

.

Turner / Finle y counsel must review the case zealously. Turner / Finley counsel must then submit a “no

- merit” letter to the trial court, or brief on appeal to this Court, detailing t he nature and extent of counsel’ s diligent review of the case, listing the issues which th e petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw.

Counsel must also send to the petitioner: (1) a copy of the “no

merit” letter/brief; (2) a copy of counse l’ s petition to withdraw; and (3) a statement advising petitioner of the right to proceed pro se or by new counsel.

If counsel fails to satisfy the foregoing technical prerequisites of Turner

/ Finley , the court will not reach the merits of the underlying claims but, r ather, will me rely deny counsel’ s request to withdraw. Upon doing so, the court will then take appropriate steps, such as directing counsel to file a proper Turner/Finley request or an ad vocate’ s brief.

However, where counsel submits a petition and no

- merit letter that do satisfy the technical demands of Turner / Finley , the
court

— trial court or this Court

— must then conduct its own review of the merits of the case. If the court agrees with counsel that the claims are without merit, the court will permit counsel to wit hdraw and deny relief. By contrast, if the claims appear to have mer it, the court will deny counsel’ s request and grant relief, or at least instruct counsel to file an advoca te’ s brief.

Commonwealth v. Wrecks , 931 A.2d 717, 721 (Pa. Super. 2007)

(citation s omitted).

(Footnote Continued)

_______________________ protection to a defendant, this Court may accept an Anders brief in lieu of a Turner/Finley letter. Commonwealth v. Fusselman , 866 A.2d 1109, 1111 n.3 (Pa. Super. 2004).

Commonwealth v. Widgins , 29 A.3d 816, 817 n.2 (Pa. Super. 2011).J

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In counsel’s petition to withdraw, she states that she will furnish

Appellant with a copy of the Anders brief upon filing, and includes a copy of

the letter she sent to Appellant. Petition to Withdraw, 7/31/2020, at ¶ 6,

Exhibit A. However, o ther than counsel’s statement and the addressing of

the letter to Appellant, nothing in the letter, petition to withdraw, or certified

record confirms that counsel contemporaneously served Appellant with

copies of the letter, petition to withdraw, and Ande rs brief. Instead, the

proofs of service attached to counsel’s filings indicate service on the

Commonwealth alone, and no proof of service was included with the letter

appended to the petition to withdraw. Thus, counsel has not complied with

the Turner/Fin ley notice requirements.

Accordingly, we deny counsel’s petition to withdraw and direct counsel

to send a copy of the letter, petition to withdraw, and Anders brief to

Appellant with amended certificate s demonstrating proper service on

Appellant and the Commonwealth.

Petition to withdraw as counsel denied. P anel jurisdiction retained.