Background
Joseph Brian Kohnow was convicted of aggravated assault with a deadly weapon and related offenses after a fight in which the victim was slashed with a knife. The jury rejected attempted homicide but accepted several lesser charges, and the court imposed an aggregate sentence of 112 to 228 months. No direct appeal followed.
In a timely first petition under Pennsylvania’s Post Conviction Relief Act, Kohnow alleged that he told trial counsel immediately after the verdict that he wanted to appeal. According to Kohnow, counsel said the case was not worth appealing and filed nothing. He also challenged counsel’s handling of self-defense. Appointed PCRA counsel filed a Turner/Finley no-merit letter and sought withdrawal. The PCRA court accepted that submission, prematurely allowed counsel to withdraw, and later dismissed the petition without a hearing even after Kohnow submitted a pro se response identifying omissions and a possible letter supporting his request for an appeal.
The Court’s Holding
The Superior Court vacated and ordered appointment of new PCRA counsel. President Judge Emeritus John T. Bender explained that counsel on a first PCRA petition must conduct an independent review, list each issue the petitioner wishes to raise, and explain why every claim lacks merit. The no-merit letter did not satisfy that obligation because its treatment of the requested-appeal allegation failed to engage the actual claim and supporting material.
A lawyer’s failure to file a requested appeal is not a strategic choice. Under Roe v. Flores-Ortega and Pennsylvania precedent, filing a notice is a ministerial task, and disregarding a client’s express instruction amounts to a complete denial of representation with prejudice presumed. If Kohnow proves that he requested an appeal, he may be entitled to restoration of his direct-appellate rights without showing that the omitted appellate issues would have succeeded.
The panel also emphasized that the court granted withdrawal before considering Kohnow’s timely response to the dismissal notice. New counsel must review the complete record and, at minimum, file an amended petition addressing the requested-appeal claim. The PCRA court may need an evidentiary hearing because credibility disputes are for that court, not the appellate panel.
Key Takeaways
- First-petition PCRA counsel must independently address every issue the petitioner wants reviewed.
- A Turner/Finley letter cannot obtain withdrawal through a superficial or inaccurate account of a requested-appeal claim.
- Failure to perfect an expressly requested direct appeal is prejudice per se if proved.
- A PCRA court should consider a timely response before allowing counsel to withdraw and dismissing the petition.
Why It Matters
The decision gives PCRA practitioners a concrete quality-control rule. Appointed counsel cannot treat a first collateral petition as a formality; counsel must compare the pro se allegations, correspondence, transcripts, and potential witnesses before concluding that no relief is available. Courts, in turn, should not approve withdrawal until that review is demonstrably complete.
For defendants and prosecutors, Kohnow also separates proof of the instruction to appeal from the merits of the lost appeal. The factual question is whether the instruction was made and ignored. If it was, the remedy protects the appellate process itself.