J-S07014-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA


                   v.

STEPHEN EUGENE JILES

                        Appellant                  No. 1063 MDA 2016


              Appeal from the PCRA Order December 10, 2015
               In the Court of Common Pleas of York County
                         Criminal Division at No(s):
                         CP-67-CR-0002718-2009
                         CP-67-CR-0002719-2009
                         CP-67-CR-0002745-2010
                         CP-67-CR-0003039-2009



BEFORE: BOWES, LAZARUS, AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                          FILED MARCH 07, 2017

      Stephen Eugene Jiles appeals from the order denying his PCRA

petition. For the following reasons, we remand the case with instructions to

counsel.

      This Court previously set forth the relevant factual and procedural

history:

            Following his convictions for numerous counts of robbery
      and other related offenses at the above docket numbers,
      Appellant was sentenced to an aggregate term of nine to twenty-
      one years’ imprisonment. In a consolidated appeal, this Court
      affirmed Appellant’s judgment of sentence on April 4, 2012.
      Commonwealth v. Jiles, 48 A.3d 469 (Pa.Super. 2012)
      (unpublished memorandum).
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           On January 4, 2013, Appellant pro se timely filed a petition
     pursuant to the [PCRA], raising, inter alia, a claim that counsel
     was ineffective for failing to file a petition for allowance of appeal
     to the Supreme Court of Pennsylvania from this Court’s
     affirmance of his judgment of sentence.               The PCRA court
     appointed John Hamme, Esquire, as counsel. On April 24, 2013,
     following a hearing, the PCRA court granted Appellant’s petition
     with respect to that claim and reinstated Appellant’s right to file
     a petition for allowance of appeal nunc pro tunc. The PCRA court
     denied the petition in all other respects.

            On May 16, 2013, Appellant filed a counseled notice of
     appeal to this Court from the PCRA court’s April 24, 2013 order.
     On May 23, 2013, Appellant filed a counseled petition for
     allowance of appeal to our Supreme Court, which was denied on
     October 2, 2013. Commonwealth v. Jiles, 76 A.3d 539 (Pa.
     2013). On March 5, 2014, Appellant pro se filed another PCRA
     petition. Appellant also requested the appointment of counsel.
     On April 15, 2014, this Court affirmed the PCRA court’s April 24,
     2013 order. Commonwealth v. Jiles, 102 A.3d 533 (Pa.Super.
     2014). On May 1, 2014, the PCRA court appointed William Graff,
     Esquire, to represent Appellant for purposes of his March 5, 2014
     PCRA petition.

            On June 26, 2014, the PCRA court held a hearing on
     Appellant’s petition. At the hearing, Attorney Graff presented
     two issues to the PCRA court, but rather than advocate for his
     client, Attorney Graff essentially informed the PCRA court that
     the issues did not warrant relief. Following the hearing, the
     PCRA court dismissed Appellant’s PCRA petition.

            Notwithstanding the procedural irregularities already
     outlined above, at this point, the procedural posture of this case
     begins to fall into complete disarray. A review of the record
     clearly reveals that Appellant sought to appeal the dismissal of
     his March 5, 2014 petition, but the clerk of courts and the PCRA
     court failed to handle appropriately his pro se filings evidencing
     that fact, and his appointed counsel failed to act altogether. As
     a result, Appellant was denied his right to appeal the PCRA
     court’s June 26, 2014 order dismissing his petition.




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             Appellant then filed his “Motion to Re-Instate Appeal Rights
       or, in the Alternative, to Have Docketed Notice of Appeal
       Processed by the Clerk of Courts” on August 20, 2014. On
       August 28, 2014, the PCRA court denied Appellant’s motion.

Commonwealth v. Jiles, 131 A.3d 94 (Pa.Super. 2015) (unpublished

memorandum) at 1-2.

       In the following appeal, Appellant argued that the PCRA court erred in

failing to re-instate his appellate rights since appointed counsel failed to take

the appropriate steps to do so, and Appellant had evinced a clear intent to

appeal the PCRA court’s decision.              In addition, Appellant raised the same

four issues he presented in his March 5, 2014 PCRA petition. We found that

Attorney Graff’s numerous errors effectively denied Appellant his right to

representation by counsel. Thus, we remanded for the appointment of new

counsel, and the filing of an amended PCRA petition or Turner/Finley1 no-

merit letter.     As such, we did not reach the merits of the four issues

Appellant raised from his PCRA petition.

       On remand, the PCRA court appointed George Margetas, Esquire, to

represent Appellant during his PCRA proceedings. Attorney Margetas did not

file an amended PCRA petition. The PCRA court held a hearing on December

10, 2015, wherein counsel argued the issues raised in Appellant’s pro se

PCRA petition. The PCRA court denied relief, and Appellant indicated, on the
____________________________________________


1
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988)                                and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).



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record, that he wanted appellate review.     Attorney Margetas did not file a

notice of appeal, nor did he seek to withdraw as counsel.        Subsequently,

Appellant again petitioned the court for reinstatement of his appellate rights.

The PCRA court appointed Heather Reiner, Esquire, and, after a hearing on

May 31, 2016, the court re-instated Appellant’s appeal rights.

      Appellant filed the present timely, counseled notice of appeal and

complied with the court’s order to file a Rule 1925(b) statement of errors

complained of on appeal.     On November 14, 2016, counsel filed with this

Court a Turner/Finley letter and an application to withdraw as counsel.

Thereafter, Appellant filed an application for relief requesting that the Court

permit him to file an amended Rule 1925(b) statement in order to include

the four issues he raised in his March 5, 2014 PCRA petition. We denied this

relief, but permitted Appellant an extension of time to file a response to

counsel’s no-merit letter.    Appellant did so, contending that appellate

counsel had filed a Rule 1925(b) statement without his input, and that

statement failed to include the issues for which he seeks redress on appeal.

The court authored its Rule 1925(a) opinion, and this matter is now ready

for our review.

      PCRA counsel’s Turner/Finley brief directs this Court’s attention to a

single issue of possible merit: “The PCRA court committed an error of law

when it denied relief pursuant to the [PCRA] on the basis that [Appellant’s]

trial counsel was ineffective for failing to fully advise [Appellant] regarding

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his plea offer and the potential sentence he faced by rejecting that offer.”

Turner/Finley brief at 6.

      As a preliminary matter, we must address whether counsel has met

the requirements of Turner/Finley.         The Turner/Finley decisions provide

the manner for post-conviction counsel to withdraw from representation.

The holdings of those cases mandate an independent review of the record by

competent counsel before a PCRA court or appellate court can authorize an

attorney’s withdrawal.   Counsel must then file a “no-merit” letter detailing

the nature and extent of her review and list each issue the petitioner wishes

to   have   examined,        explaining    why   those   issues   are   meritless.

Commonwealth v. Freeland, 106 A.3d 768, 774 (Pa.Super. 2014).

Counsel is required to contemporaneously serve upon his client her no-merit

letter and application to withdraw along with a statement that, if the court

granted counsel’s withdrawal, the client may proceed pro se or with a

privately retained attorney. Id. at 774. This Court must then conduct its

own independent evaluation of the record and agree with counsel that the

petition is meritless. Id.

      We note that, if counsel does not satisfy the technical prerequisites of

Turner/Finley, we will not reach the merits of the underlying claim.

Commonwealth v. Wrecks, 931 A.3d 717, 721 (Pa.Super. 2007).

Instead, we will deny counsel’s request to withdraw and direct the PCRA




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court to take appropriate steps, such as directing counsel to file a proper

Turner/Finley request or file an advocate’s brief. Id.

      Here, we find counsel has not complied with the requirements of

Turner/Finley.    Counsel detailed her review of the record and concluded

that Appellant’s claims are meritless. She notified Appellant, and provided

him with a copy of her no-merit letter, informing him of his right to proceed

pro se or to retain private counsel.      However, counsel’s brief does not

present each issue Appellant wishes to have examined on appeal, and

concomitantly, does not explain why those issues lack merit.

      Counsel filed a Rule 1925(b) statement raising the issue set forth

above.   In his response to counsel’s no-merit letter, Appellant avers that

counsel did not communicate with him prior to the filing of that statement.

Had she done so, Appellant contends, he would have directed her to address

the following four issues:

      Whether trial counsel, Kevin Hoffman, rendered ineffective
      assistance by failing to move for dismissal of case No. CP-67-CR-
      000745-2010 based on a denial of due process and prosecutorial
      misconduct?

      Whether trial counsel, Kevin Hoffman, was ineffective for offering
      erroneous advice with regard to accepting or rejecting a plea
      offered by the Commonwealth that was significantly less onerous
      than the prison time imposed following trial?

      Whether [A]ppellant was subjected to structural error when a
      [J]udge who decided pre-trial motions was involved in an
      intimate relationship with the assistant district attorney, who
      prepared and submitted said motions, resulting in a denial of
      due process?

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      Whether trial and direct appeal counsel, Kevin Hoffman, was
      ineffective for failing to file an application for relief in appellate
      court when he discovered that [the pre-trial motions Judge] was
      intimately involved with the assistant district attorney who
      prepared and submitted several pre-trial motions decided by
      [that Judge]?

Appellant’s Response to No-Merit Letter, 1/10/17, at unnumbered 1-2.

Indeed, Appellant has made it abundantly clear that he desires this Court to

address these claims. He has included these same four issues, verbatim, in

each filing he has presented to this Court.       Moreover, Appellant’s pro se

March 5, 2014 PCRA petition raised these claims, and Attorney Margetas

argued them before the PCRA court on December 12, 2015. Upon the PCRA

court’s denial of relief premised upon those allegations, Appellant stated, on

the record, that he wished to appeal the PCRA court’s decision. N.T. PCRA

Hearing, 12/10/15, at 52.

      We recognize that counsel did not raise these issues in Appellant’s

Rule 1925(b) statement, and hence, they would not otherwise be preserved.

Nevertheless, the record reveals counsel had ample notice as to which issues

that Appellant wished to raise on appeal, and we can discern no rationale for

her failure to do so in her Turner/Finley brief. Since counsel has failed to

satisfy the technical prerequisites of Turner/Finley, we deny counsel’s

request to withdraw and remand this matter for counsel to file a proper

Turner/Finley brief, or in the alternative, to file an advocate’s brief, taking

the necessary steps to ensure Appellant’s issues are presented on appeal.

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      Record remanded.     Counsel shall comply with the mandates of this

decision within sixty days of remand of the record. Jurisdiction retained.




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