J-S84023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    EDWIN MARQUEZ                              :
                                               :
                       Appellant               :   No. 790 EDA 2018

                  Appeal from the PCRA Order February 6, 2018
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No(s): CP-CR-0904661-2005


BEFORE: BENDER, P.J.E., OTT, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OTT, J.:                                   FILED APRIL 29, 2019

        Edwin Marquez, appeals, pro se, from the Order of February 6, 2018,

that denied his first petition brought under the Post Conviction Relief Act

(PCRA).1 On appeal, Marquez claims he received ineffective assistance of trial

and appellate counsel. For the reasons discussed below, we do not reach the

merits of Marquez’s arguments. Instead, we vacate the denial of PCRA relief

and remand for the appointment of new counsel.

        In late 2006, a jury found Appellant guilty of murder in the third degree

and conspiracy. On January 18, 2007, the trial court sentenced Marquez to

17½ to 35 years’ imprisonment. On August 31, 2009, an en banc panel of

this Court affirmed the judgment of sentence. Commonwealth v. Marquez,

____________________________________________


1   42 Pa.C.S.A. §§ 9541-9546.
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980 A.2d 145 (Pa. Super. 2009) (en banc). The Pennsylvania Supreme Court

denied leave to appeal on December 29, 2009. Commonwealth v. Marquez,

987 A.2d 160 (Pa. 2009).

       On August 17, 2011, Marquez, acting pro se, filed the instant PCRA

petition.   In the petition, Marquez acknowledged that it was untimely but

quoted from a letter from appellate counsel in which counsel acknowledged

that he had neglected to inform Marquez of the Pennsylvania Supreme Court’s

denial of his petition for leave to appeal. Petition for Post Conviction Collateral

Relief, 8/17/2011, at 3-5. On March 14, 2012, the PCRA court having taken

no action on his petition, Marquez filed a pro se memorandum of law. On May

20, 2014, Marquez moved for appointment of counsel.                 Although not

specifically noted on the docket, it appears that the court appointed David S.

Rudenstein, Esq., soon thereafter.

       On July 8, 2015, the PCRA court docketed a pro se PCRA petition at this

case number, filed by Marquez’s co-defendant and brother, Carlos Jimenez.2

On October 23, 2017, counsel filed a motion to withdraw and a Turner/Finley

letter.     See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). Our

review of counsel’s filing demonstrates that, although the court appointed

counsel to represent Marquez, the petition counsel reviewed and discussed in


____________________________________________


2Jiminez also filed his pro se PCRA petition at the correct case number, CP-
51-CR-0904662-2005. That petition was dismissed and no appeal was filed.

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his Turner/Finley letter, was not Marquez’s, but the petition filed by his

brother, Jimenez, which raised a completely different issue, that he was not

exposed to the death penalty. Turner/Finley Letter, 10/23/2017, at 1-7.

     On January 2, 2018, the PCRA court issued notice of its intent to dismiss

Marquez’s petition pursuant to Pennsylvania Rule of Criminal Procedure

907(1) because of counsel’s filing of the Turner/Finley letter.          Notice

Pursuant to Pennsylvania Rule of Criminal Procedure 907, 1/02/2018, at 1.

Marquez did not file a response. On February 6, 2018, the court dismissed

the PCRA petition and granted counsel’s petition to withdraw.       The instant

appeal followed.   The PCRA court did not order Marquez to file a concise

statement of errors complained of on appeal. On March 28, 2018, the PCRA

court issued an opinion. In its opinion, the court found that Marquez timely

filed his PCRA petition and it analyzed the issues Marquez raised in the PCRA

petition on the merits. Opinion, 3/28/2018, at 2-14.

     Our standard of review for an order denying PCRA relief is well settled:

     This Court’s standard of review regarding a PCRA court’s order is
     whether the determination of the PCRA court is supported by the
     evidence of record and is free of legal error. Great deference is
     granted to the findings of the PCRA court, and these findings will
     not be disturbed unless they have no support in the certified
     record. Moreover, a PCRA court may decline to hold a hearing on
     the petition if the PCRA court determines that a petitioner’s claim
     is patently frivolous and is without a trace of support in either the
     record or from other evidence.

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations

and quotation marks omitted).


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     Prior to any discussion of the merits of this appeal, we must first

ascertain the propriety of the PCRA court’s granting of counsel’s motion to

withdraw. Pursuant to Turner/Finley and their progeny:

     Counsel petitioning to withdraw from PCRA representation 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 the nature and extent of counsel’s diligent
     review of the case, listing the issues which 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 counsel’s petition to withdraw; and (3) a statement
     advising petitioner of the right to proceed pro se or by new
     counsel.

                                   * * *

     [W]here counsel submits a petition and no-merit letter that . . .
     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 withdraw and
     deny relief.

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citation

omitted).

     Unfortunately, counsel reviewed the incorrect petition and he premised

his Turner/Finley letter on his analysis of Jimenez’s petition, presumably

because Jimenez’s caption contained the same docket number as Marquez’s

case. The PCRA court then compounded the error by issuing a Rule 907 notice

and ultimately granting counsel’s petition to withdraw when, it is clear upon

our review, he did not comply with the dictates of Turner/Finley as to

Marquez’s petition. The Rules of Criminal Procedure expressly mandate that

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a defendant shall be entitled to legal counsel when filing a first time PCRA

petition. It is the province of appointed counsel to evaluate and develop a

defendant’s claims. See Commonwealth v. Williams, 782 A.2d 517, 525

(Pa. 2001). While the PCRA court did undertake a thorough analysis of both

the timeliness of the PCRA petition and the merits of the issues raised in

Marquez’s pro se petition, it should not have permitted counsel to withdraw

when counsel so patently failed to evaluate and develop Marquez’s claims.

      Thus, we are constrained to vacate the denial of Marquez’s PCRA petition

and remand the matter back to the PCRA court, so that Marquez may have an

analysis undertaken of the issues he wishes to raise in his PCRA petition. Upon

remand, we direct the PCRA court to appoint new counsel, who may file either

an amended PCRA petition or a new Turner/Finley letter. Given the length

of time that Marquez’s petition has languished in the courts, we hope that the

PCRA court will do so as expeditiously as possible.

      Order vacated.      Case remanded with instructions.         Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/29/19



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