J-S13003-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

PETER GORDON

Appellant No. 1369 MDA 2019

Appeal from the PCRA Order Entered July 10, 2019

In the Court of Common Pleas of Dauphin County

Criminal Division at No: CP-22-CR-0006831-2016

BEFORE: STABILE, J., DUBOW, J., and PELLEGRINI, J.*

MEMORANDUM BY STABILE, J.: FILED MAY 28, 2020

Appellant, Peter Gordon, appeals from an order denying relief under the 

Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541—9546. Appellant asserts 

that guilty plea counsel was ineffective for failing to advise of the 

consequences that pleading guilty might have on his immigration status. 

PCRA counsel has filed an Anders1 brief and an application to withdraw as 

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* Retired Senior Judge assigned to the Superior Court.

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

apparently in the mistaken belief that an Anders brief is required where 

counsel seeks to withdraw on appeal from the denial of PCRA relief. Where 

counsel seeks to withdraw on appeal from the denial of PCRA relief, a 

Turner/Finley “no-merit letter” is the appropriate filing. Commonwealth v. 

Reed, 107 A.3d 137, 139 n.5 (Pa. Super. 2014) (citing Commonwealth v. 

Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 

(Pa. Super. 1988) (en banc)). Nevertheless, our practice in these situations 

is to accept counsel’s Anders brief and evaluate whether it substantially 
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counsel. Due to a defect in PCRA counsel’s cover letter to Appellant enclosing 

her application to withdraw, we deny her application without prejudice.

On May 16, 2017, Appellant pleaded guilty to (1) medical fraud, 

unentitled reimbursement, (2) theft by deception, false impression, and (3) 

tampering with public records2 pursuant to a negotiated plea agreement. The 

court sentenced Appellant on the same date to five years’ probation. 

During sentencing, guilty plea counsel advised Appellant on the record 

that pleading guilty could affect his immigration status. Appellant 

acknowledged that he understood. Counsel asked Appellant if he still wished 

to go forward with the plea as outlined, and Appellant stated that he wanted 

to continue with the plea. N.T., 5/16/17, at 7-8. Appellant also apologized to 

the court and promised not to commit the same conduct again. Id. at 11. 

After sentencing, Appellant did not request to withdraw his plea or file 

a direct appeal. Accordingly, Appellant’s judgment of sentence became final 

on or about June 16, 2017.

Over one year later, on November 18, 2018, Appellant filed a pro se 

PCRA petition alleging that guilty plea counsel was ineffective for failing to 

advise him of the immigration consequences of pleading guilty. The PCRA 

court appointed counsel, who filed an amended PCRA petition, and the 

Commonwealth filed a response. In a memorandum and order dated June 4, 

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satisfies Turner/Finley criteria. Commonwealth v. Widgins, 29 A.3d 816, 

819 (Pa. Super. 2011).

2 62 Pa.C.S.A. §§ 1407(a)(12), 3822(a)(1), and 4911(a)(1), respectively.
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2019, the PCRA court informed Appellant of its intent to dismiss his petition 

without a hearing. On July 10, 2019, the court entered an order dismissing 

Appellant’s petition. On August 8, 2019, Appellant filed a timely appeal to this 

Court. The PCRA court entered a Pa.R.A.P. 1925 statement without ordering 

Appellant to file a statement of matters complained of on appeal.

In this Court, PCRA counsel filed an Anders brief and an application to 

withdraw as counsel. Counsel’s brief discusses the ineffectiveness claim that 

Appellant raised in the PCRA court. Before any substantive analysis, we must 

examine whether PCRA counsel has met the procedural requirements for 

withdrawing as counsel. 

Where, as here, counsel for a PCRA appellant files an Anders brief and 

an application to withdraw, we first examine whether counsel’s brief 

substantially complies with Turner/Finley standards. Widgins, 29 A.3d at 

819. A Turner/Finley brief must: (1) detail the nature and extent of 

counsel’s review of the case; (2) list each issue the petitioner wishes to have 

reviewed; and (3) explain counsel’s reasoning for concluding that the 

petitioner’s issues are meritless. Commonwealth v. Knecht, 219 A.3d 689, 

691 (Pa. Super. 2019). Substantial compliance with these requirements is 

sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa. Super. 

2007). Counsel substantially complied with these requisites. Her brief reflects 

that she carefully reviewed the record, listed the issue that Appellant wanted 

reviewed (guilty plea counsel’s alleged ineffectiveness), and explained why it 

was meritless.
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Next, PCRA counsel must send a copy of her brief to the PCRA appellant,

along with a copy of her petition to withdraw, and inform him of his right to 

proceed pro se or to retain new counsel. Knecht, 219 A.3d at 691. In 

conjunction with counsel’s request to withdraw, it is important to inform the 

PCRA appellant of his right to proceed pro se and raise additional points for 

our review before this Court examines counsel’s request to withdraw and the 

merits of the case. Although a party may not typically proceed pro se while 

represented by counsel, there is an exception if appellate counsel has filed a 

Turner/Finley brief, because that filing signifies that the PCRA appellant is 

effectively without counsel. Where an appellant has not been apprised of his 

right to proceed pro se following the filing of a Turner/Finley brief, the notice 

is defective. Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super. 

2005) (counsel’s notice defective where counsel’s letter may have only 

informed appellant of right to “new counsel,” which would imply right to 

different court-appointed counsel, rather than right to retain new counsel or 

proceed pro se).3

We find that counsel failed to provide proper notice of Appellant’s right 

to proceed pro se. Counsel sent a copy of her brief to Appellant and sent him 

a letter advising him of his right to retain new counsel and raise any additional 

points that he deemed worth of this Court’s attention. Anders brief, 

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3 Although Millisock was a direct appeal instead of a PCRA appeal, we believe 

its analysis applies with equal force to PCRA appeals in which counsel moves 

to withdraw. 
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addendum. Counsel did not, however, specifically advise Appellant of his 

immediate right to proceed with the instant appeal “pro se.” An appellant has 

the immediate right in this situation to proceed pro se or with privately 

retained counsel to raise any additional issues he deems worthy of review in 

this Court. Since counsel failed to make this clear in her letter, it was 

defective. Millisock, supra.

Accordingly, we deny counsel’s petition to withdraw at this time and 

direct her to (1) file an amended petition to withdraw as counsel in this Court 

within fifteen days, and (2) attach to the amended petition a copy of an

amended letter sent to Appellant, fully advising him of his immediate right, 

either pro se or with privately retained counsel, to file a brief on any additional 

points he deems worthy of review. Counsel must also advise Appellant that 

he may respond, within thirty days of counsel’s amended letter, to counsel’s 

Anders brief. The Commonwealth will then have thirty days to file a 

responsive brief.

Petition to withdraw as counsel denied with instructions. Panel 

jurisdiction retained.