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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA

               v.


 SHANE G. SPEROW

                    Appellant            :   No. 1619 MDA 2018
          Appeal from the PCRA Order Entered September 5, 2018
     In the Court of Common Pleas of Berks County Criminal Division at
                      No(s): CP-06-CR-0002256-2016
BEFORE: BOWES, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.:                              FILED JULY 17, 2019

     Shane G. Sperow appeals pro se from the order that dismissed his
petition filed pursuant to the Post Conviction Relief Act ("PCRA"), after the

PCRA court permitted his court -appointed counsel to withdraw pursuant to

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth

v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).     We vacate the order

and remand with instructions.

     Appellant was charged with unsworn falsification to authorities, based

upon a document supplied at a sentencing hearing held on February 8, 2016,

in connection with two other cases.   After counsel entered an appearance,

Appellant filed a pro se motion to dismiss, claiming therein that the

Commonwealth lacked the evidence to establish that Appellant committed the

crime, and complaining about statements the         District Attorney made
concerning the case to the news media.       Motion to Dismiss, 9/26/13, at
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unnumbered 2. Appellant's pro se motion was filed, docketed, and forwarded

to counsel pursuant to Pa.R.Crim.P. 576(A)(4), after which the trial court

dismissed the motion by order of October 4, 2016, citing Commonwealth v.

Ellis, 626 A.2d 1137 (Pa. 1993) (providing that hybrid representation is not

permitted).

      On October 25, 2016, Appellant entered a guilty plea. During the guilty

plea hearing Appellant admitted that he supplied at the prior sentencing
hearing a document claiming that he had been deployed as a United States

Marine in Iraq, Afghanistan, Somolia, and other locations, and had been
awarded two Purple Hearts and a Bronze Star as a result of his heroic service,

when he in fact had never served in the Marines.            N.T. Guilty Plea and

Sentencing, 10/25/16, at 6-7. The trial court accepted the plea, but expressed

its surprise at Appellant's decision to accept responsibility, given that it "on at

least a weekly basis received some pro se pleading from [Appellant] asking

that this case be dismissed." Id. at 11. The trial court sentenced Appellant

to three to twenty-four months of incarceration, to run consecutive to a
sentence that he was serving in one of his other cases. Appellant filed no

post -sentence motion or direct appeal.

      On January 12, 2017, Appellant filed a timely pro se PCRA petition

claiming ineffective assistance of plea counsel. While Appellant did not identify

particularly what plea counsel should have done differently, Appellant detailed

facts that suggest that he does not believe that he committed the crime in


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question. See PCRA Petition, 1/12/17, at 4 (stating that Appellant did not

personally testify or submit any document regarding military service or
medals,   that the document counsel submitted          was   not   verified   or

authenticated, and that he did not receive a favorable sentence as a result of

the information supplied at his sentencing hearing).

      By order of January 19, 2017, the PCRA court appointed Lara Hoffert,

Esquire, to represent Appellant, and instructed her to file either an amended

petition or Turner/Finley letter within twenty-one days. Attorney Hoffert
thereafter requested eight sixty-day extensions of time to comply. The PCRA

court granted such extensions     in   February, May, July, September, and
November of 2017, and in January, April, and June of 2018. In the meantime,

Appellant submitted various pro se documents to the court, including a motion

for time credit.   The PCRA court again informed Appellant that, as he was

represented by counsel, all requests for relief were required to be submitted

by counsel.' Order, 2/13/17 (citing Ellis, supra).
      On August 17, 2018, Attorney Hoffert filed a Turner/Finley letter and

request to withdraw as counsel. Therein, Attorney Hoffert indicated that she

"reviewed the entire official file" and communicated with Appellant about his

petition. She further indicated that




' Failure to award the proper credit for time served implicates the legality of
sentence, and is thus cognizable under the PCRA. Commonwealth v. Beck,
848 A.2d 987, 989 (Pa.Super. 2004).
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      Through correspondence with counsel and by way of [Appellant's]
      pro se PCRA petition, [Appellant] raises the following issue:

            1.   [Plea counsel] was ineffective for encouraging
            [Appellant] to enter a guilty plea and not present a defense
            even when [Appellant] had informed [plea counsel] that it
            had been Attorney [John] Elder, [Appellant's counsel at
            sentencing in the other cases,] not [Appellant], who had
            provided the court with the document containing false
            information regarding [Appellant's] military service.

Turner/Finley Letter, 8/20/18, at 2 (unnecessary capitalization omitted).
Attorney Hoffert noted that, at the plea hearing, Appellant "specifically
admitted that although Attorney Elder had physically handed the [c]ourt the

document in question, [Appellant] had himself prepared the document and

knew that it contained nothing but false information regarding [Appellant's]

purported military career." Id. at 3 (citing N.T. Guilty Plea and Sentencing,

10/25/16, at 6-7). Attorney Hoffert also observed that, at the time of the
plea, Appellant "addressed the      [c]ourt, admitted to the mistake and

apologized for not correcting it sooner." Id. at 4.     Attorney Hoffert thus

concluded that the record established that Appellant's plea was knowing,

intelligent, and voluntary "regardless of [Appellant's] current assertion that

counsel wrongfully encouraged him to enter a plea[.]" Id.

      Of note, Attorney Hoffert did not address in her Turner/Finley letter
the issues raised in the pro se motion to dismiss that Appellant filed prior to

the entry of his guilty plea, nor the time -credit issue raised in the pro se
motion filed while she represented Appellant.    Nonetheless, the PCRA court



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allowed Attorney Hoffert to withdraw, and issued notice of its intent to dismiss

Appellant's petition without a hearing pursuant to Pa.R.Crim.P. 907.

      Appellant filed a timely pro se response to the Rule 907 notice in which

he claimed that Attorney Hoffert rendered ineffective assistance of counsel.

Appellant contended that Attorney Hoffert addressed only one issue in her

Turner/Finley letter, "and omitted researching          all     [six]   issues   that

[Appellant] has repeatedly raised to [Attorney] Hoffert, the most recent was

sent by [Appellant] on June 18, 2018, as to his reason(s) [for] seeking relief."

Objection to Rule 907 Notice, 8/31/18, at 2. Specifically, Appellant maintained

that Attorney Hoffert failed to address the following claims:

      1)      [Plea counsel] neglected his duty to review [Appellant's]
      requests and motions to the Berks County Court prior to any guilty
      plea.

      2)    There was no factual basis for [Appellant] to plead when
      evidence supported that it was [plea counsel], not [Appellant]
      whom [sic] performed and/or presented the document which
      resulted in [the] criminal charges sub judice.

      3)      [Plea counsel] failed to request a change of venue which
      was warranted due to sensationalized news coverage.

      4)      [Plea counsel] failed to request authentification [sic] of
      document which was basis of charge.

      5)      [Plea counsel] failed to challenge the arrest warrant for
      [Appellant] filed on April 17, 2016, by Berks Detective Ritter which
      states, "[Appellant] did make a written false statement," when no
      authentification [sic] of the document was ever performed.




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Id. at 2-3.     To remedy the alleged ineffectiveness of Attorney Hoffert,
Appellant requested the appointment of PCRA counsel "to fully and properly

prosecute his PCRA petition." Id. at 3.

      The PCRA court concluded that Appellant would not be entitled to PCRA

relief even if the facts alleged in connection with his new claims were true.

Order, 9/5/18. Accordingly, by order of September 5, 2018, it dismissed the

petition without a hearing.

      On September 13, 2018, apparently before he was aware that his
petition in the instant case was dismissed, Appellant sent to the PCRA court a

letter concerning Attorney Hoffer's representation.      Request for New PCRA

Counsel, 9/13/18. Therein, he noted that Attorney Hoffert was appointed as

his PCRA counsel to litigate petitions filed in four separate cases, and that he

had written to her regarding one case or another on approximately twenty-

four occasions, but he had never once received an answer from her. Id.

Appellant indicated that he was "desperately        in   need of the [c]ourt's
intervention" and asked that the court assign him new counsel. Id.

      Before the PCRA court took any action upon Appellant's request, he filed

a timely notice of appeal from the order dismissing the PCRA petition. The

PCRA court ordered Appellant to file a concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied.

      Appellant presents the following questions to this Court:

      A)      Whether the Appellant was prejudiced by plea counsel's
              deficient performance:

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             (1)   in advising and coercing the Appellant to accept the
                   Commonwealth's open plea offer and forego [sic] a
                   trial, even though evidence existed that would have
                   probably caused a result that would have been
                   different?

             (2)   in advising and coercing the Appellant to accept the
                   Commonwealth's open plea offer and promising the
                   Appellant that he would be pleading to      a   lesser
                   sentence with no probation violations which was not
                   the result of his sentencing?

      B)    Whether the construction of the PCRA counsel's Finley
             letter was defective?

Appellant's brief at 5.

      We begin with the legal principles applicable to our review.          "Our

standard of review for issues arising from the denial of PCRA relief is well -

settled. We must determine whether the PCRA court's ruling is supported by

the record and free of legal error." Commonwealth v. Johnson, 179 A.3d

1153, 1156 (Pa.Super. 2018) (internal quotation marks omitted).        Further,

"[i]t is an appellant's burden to persuade us that the PCRA court erred and

that relief is due." Commonwealth v. Miner, 44 A.3d 684, 688 (Pa.Super.
2012).

      Appellant's claims relate to allegations that both his plea and PCRA

counsel rendered ineffective assistance.2 Counsel is presumed to be effective,




2 Appellant preserved his claims of PCRA counsel's ineffectiveness by raising
them in his response to the PCRA court's Rule 907 notice.                See
Commonwealth v. Pitts, 981 A.2d 875, 880 n.4 (Pa. 2009).
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and   a   PCRA    petitioner   bears   the   burden     of   proving   otherwise.

Commonwealth v. Becker, 192 A.3d 106, 112 (Pa.Super. 2018). To do so,

the petitioner must plead and prove (1) the legal claim underlying             his

ineffectiveness claim has arguable merit; (2) counsel's decision to act (or not)

lacked a reasonable basis designed to effectuate the petitioner's interests; and

(3) prejudice resulted. Id. The failure to establish any prong is fatal to the

claim. Id. at 113.
      "Allegations of ineffectiveness in connection with the entry of a guilty

plea will serve as a basis for relief only if the ineffectiveness caused appellant

to enter an involuntary or unknowing plea." Commonwealth v. Fears, 86
A.3d 795, 806-07 (Pa. 2014). "Where the defendant enters his plea on the

advice of counsel, the voluntariness of the plea depends on whether counsel's

advice was within the range of competence demanded of attorneys in criminal

cases."   Commonwealth v. Pier, 182 A.3d 476, 479 (Pa.Super. 2018)
(citation and internal quotation marks omitted). "[T]co establish prejudice, the

defendant must show that there is a reasonable probability that, but for
counsel's errors, he would not have pleaded guilty and would have insisted on

going to trial." Id. (citation and internal quotation marks omitted).
      With his first issue, Appellant challenges the propriety of the PCRA

court's determination that the issue raised in his PCRA petition was meritless.

He states two separate arguments in support of his claim: (1) that counsel

was ineffective in advising him to take the plea when the evidence did not


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establish his guilt; and (2) that counsel induced him to plead guilty based

upon promises as to the sentences he would receive. Appellant's brief at 5,

16-17. The second argument was not raised in the PCRA court, in either the

PCRA petition or Appellant's response to the court's Rule 907 notice. Nor was

it included in Appellant's Rule 1925(b) statement.       Accordingly, it is waived

for purposes of this appeal. See Pa.R.A.P. 302(a) ("Issues not raised in the

lower court are waived and cannot be raised for the first time on appeal.").

       Regarding Appellant's contention that counsel was ineffective in advising

him to enter a guilty plea, Attorney Hoffert posited, and the PCRA court
agreed, that the argument was unavailing because Appellant admitted at the

guilty plea hearing that he was the person who wrote the document that
contained the fabricated military service history. See Turner/Finley Letter,

8/20/18, at 3-4; Notice of Intent to Dismiss, 8/20/18, at 2-3. However, this

analysis misses the point.

      Appellant's contention is that competent plea counsel would have known

that the Commonwealth lacked sufficient evidence to prove that Appellant

committed the crime in question, and thus would not have advised him to

plead guilty in the first place. Such a claim is not foreclosed by his admission

of   guilt   occurring   after   counsel's   alleged   ineffectiveness.   Accord
Commonwealth v. Bedell, 954 A.2d 1209, 1213 (Pa.Super. 2008)
(examining merits of claim that counsel's ineffectiveness induced involuntary

plea because the Commonwealth's factual basis for the plea did not establish


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all elements of the crime). Therefore, the PCRA court erred in dismissing

Appellant's claim on the basis of his admissions at the plea colloquy.

      In his pro se appeal, Appellant does not offer argument supported by

authority to establish that counsel's "advice to accept the plea was not within

the range of constitutionally competent advice."          Commonwealth v.
Johnson, 179 A.3d 1153, 1160 (Pa.Super. 2018). While this typically would

result in the denial of relief from this Court, see id., we decline to do so on

the record before us, as Appellant is entitled to the assistance of counsel in

presenting his PCRA issues.

      Pennsylvania courts have recognized expressly that every post -
      conviction litigant is entitled to at least one meaningful
      opportunity to have issues reviewed, at least in the context of an
      ineffectiveness claim. This Court has admonished, accordingly,
      that the point in time at which a trial court may determine that a
      PCRA petitioner's claims are frivolous or meritless is after the
      petitioner has been afforded a full and fair opportunity to present
      those claims. Our Supreme Court has recognized that such an
      opportunity is best assured where the petitioner is provided
      representation by competent counsel whose ability to frame
      the issues in a legally meaningful fashion insures the trial
      court that all relevant considerations will be brought to its
      attention.
Commonwealth v. Karanicolas, 836 A.2d 940, 945 (Pa.Super. 2003)
(cleaned up) (emphasis added).

      Rather than frame the issue stated in the PCRA petition properly,
Attorney Hoffert applied the incorrect analysis rejected above.          Further,

Appellant contends that Attorney Hoffert failed to raise five additional issues

he wished the court to consider.     Indeed, he informed the PCRA court in


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response to the Rule 907 notice that he corresponded with Attorney Hoffert

about five claims that she did not address in her Turner/Finley letter.     See

Objection to Rule 907 Notice, 8/31/18, at 1-3.    On appeal, he argues that the

PCRA court erred in dismissing his petition given Attorney Hoffet's lack of

compliance with Turner and Finley.3 Appellant's brief at 20-21.

      It is well -settled that, after zealous, diligent review of the case, PCRA

counsel seeking to withdraw must detail each of "the issues which petitioner

wants to have reviewed" and explain "why and how those issues lack merit[.]"

Commonwealth v. Muzzy, 141 A.3d 509, 511 (Pa.Super. 2016) (quoting
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.Super. 2007)). It does

not appear from the record that Attorney Hoffert did so in this case.4

      The fact that the PCRA court itself rejected Appellant's additional claims

on their merits5 does not suffice: "Even where a pro se first PCRA petition

appears on its face to be meritless, the defendant is entitled to representation




3 Cf. Commonwealth v. Pitts, 981 A.2d 875, 880 (Pa. 2009) (holding this
Court erred in reviewing the adequacy of counsel's Turner/Finley letter when
neither party raised the issue).

4 Given our review of the records in Appellant's pro se appeal from three
different cases at 1751 MDA 2018, we sympathize with the difficulty of the
task Attorney Hoffert was required to undertake, given her simultaneous
handling of four separate yet intermingled cases involving Appellant as well
as his proclivity for pro se filings while he is represented by counsel.

5 See PCRA Court Opinion, 10/16/18, at unnumbered 3.
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by counsel before that determination is made." Commonwealth v. Kelsey,

206 A.3d 1135, 1140 (Pa.Super. 2019).

      As we explained in Kelsey,

      [b]ecause Appellant did not waive his right to representation by
      counsel and PCRA counsel neither represented Appellant on the
      merits of the PCRA petition nor filed a sufficient no -merit letter
      that addressed all of Appellant's claims, the PCRA court's dismissal
      of Appellant's PCRA petition must be vacated and remand to the
      PCRA court for appointment of new PCRA counsel is required. On
      remand, Appellant's new counsel shall be permitted to file an
      amended PCRA petition or, if counsel concludes in the exercise of
      his or her professional judgment that the issues raised in the PCRA
      proceeding are without merit, counsel may file an adequate no -
      merit letter that addresses all of the issues raised in Appellant's
      PCRA petition and move to withdraw.

Id. (citations omitted). These principles apply in the present case.

      Order vacated.          Case remanded with instructions.      Jurisdiction

relinquished.



Judgment Entered.


         L_..._,   Lo,_
                       ,   ,.L.,
 .---7
Jseph D. Seletyn,
Prothonotary


Date: 07/17/2019




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