J-A18044-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :       IN THE SUPERIOR COURT OF
                                            :             PENNSYLVANIA
                    Appellee                :
                                            :
              v.                            :
                                            :
DONNELL CORTHROY GREENE,                    :
                                            :
                    Appellant               :           No. 2055 MDA 2014

           Appeal from the PCRA Order entered on November 8, 2014
               in the Court of Common Pleas of Lebanon County,
              Criminal Division, No(s): CP-38-CR-0000977-2011;
                            CP-38-CR-0000980-2011

BEFORE: FORD ELLIOTT, P.J.E., STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                              FILED JULY 29, 2015

        Donnell Corthroy Greene (“Greene”), pro se, appeals from the Order

denying his Petition for Relief filed pursuant to the Post Conviction Relief Act

(“PCRA”).1 We reverse and remand for further proceedings.

        In its Opinion, the PCRA court summarized the history giving rise to

the instant appeal as follows:

               On June 11, 2011, officers stopped Greene for speeding.
        Detecting marijuana, the officers requested Greene to step out
        of the vehicle. He complied, but when the officer walked back to
        his car, Greene re-entered his vehicle and fled at high speed.
        Losing control, [Greene’s vehicle] entered the opposing lane of
        traffic and struck a pickup truck. Though he tried to flee on foot,
        Greene was apprehended. A subsequent search of his vehicle
        yielded over 53 grams of heroin and 344.4 grams of cocaine.

             On or about August 9, 2011, Greene was charged with
        Possession with Intent to Deliver (1) heroin and (2) cocaine[,]

1
    42 Pa.C.S.A. §§ 9541-9546.
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     and with Possession of (3) cocaine and (4) heroin. He was also
     charged with (1) Aggravated Assault by Vehicle while Driving
     Under the Influence, (2) Fleeing and Eluding, (3) Reckless
     Endangerment, (4) Resisting Arrest, (5) causing an Accident
     Damaging Property, and (6) Driving Under the Influence of a
     Controlled Substance. These two cases were consolidated, and
     Greene pled guilty to all ten counts. Via his written and verbal
     guilty pleas, Greene acknowledged that he understood his plea
     agreement and requested that [the trial court] accept and apply
     it. Finding that the plea was knowing and voluntary, [the trial
     court] accepted it and[, on November 9, 2011,] sentenced him
     to an aggregate of five and one-half to 14 years in a State
     Correctional Facility.

            On June 17, 2014, Greene filed a boilerplate Petition for
     Habeas Corpus Relief based upon Alleyne v. United States,
     133 S. Ct. 2151 (2013). His Petition was obviously prepared by
     someone else for an unrelated case. Greene filled in his name in
     various blanks without providing case-specific arguments. Since
     the Petition was difficult to understand, [the PCRA court]
     appointed Erin Zimmerer, Esq. [“Attorney Zimmerer”], to
     represent Greene and directed counsel to file an Amended
     [PCRA] Petition. [Attorney] Zimmerer explained to Greene that
     his [P]etition was meritless and not timely.       According to
     Attorney Zimmerer’s Motion [to Withdraw Greene’s PCRA
     Petition,] … Greene stated that he understood this and
     understood that counsel would be withdrawing his Petition.

            However, Greene, acting pro se, [filed a Motion to]
     reinstate[] his Petition on October 6th, claiming that he
     understood only that [Attorney] Zimmerer was withdrawing from
     representation, but not that she would be withdrawing his
     [P]etition. Even if the [PCRA] does not apply, Greene argue[d],
     he should be afforded relief “under habeas corpus an[d]
     practices contrary to Federal law[, which] are not encumbered
     by time limits or procedural defaults….” …

          On October 7th, [the PCRA court] entered an Order denying
     Greene’s Motion to Reinstate, again noting that his Petition was
     both untimely and without merit.       On October 29, [2014,]
     Greene[, pro se,] filed a Motion to Correct and/or Modify Illegal
     Sentence ….




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PCRA Court Opinion, 1/5/15, at 3-5. The PCRA court denied Greene’s Motion

on November 4, 2014. Thereafter, Greene filed the instant appeal, followed

by   a    court-ordered   Pa.R.A.P.   1925(b)   Concise   Statement   of   Errors

Complained of on Appeal.

         Greene now presents the following issues for our review:

         A. Whether the sentence in this case is illegal and violates the
            Sixth Amendment to the United States Constitution because
            the sentencing [j]udge relied upon conduct not found by a
            [j]ury or admitted in a plea[?]

         B. Whether the Petition in this case was timely filed pursuant to
            42 Pa.C.S.A. § 9545(b)(1)(i) and (ii)?

         C. Whether under Teague v. Lane, 489 U.S. 288 (1989) and its
            progeny[,] the United States Supreme Court’s decision in
            Alleyne v. United States, 133 U.S. 2151 (2013) should be
            applied retroactively?

         D. Whether the [a]pplication of the [m]andatory provision in
            sentencing, now determined to be unconstitutional, vitiates
            timeliness and due diligence as bars to the relief sought?

         E. Whether having declared the mandatory provision relied upon
            herein illegal, allowing [Greene] to continue to suffer that
            sentence[,] constitutes cruel and unusual punishment in
            violation of the Eight Amendment to the United States
            Constitution?

Brief for Appellant at 3. Before addressing Greene’s claims, we first must

address the procedural posture of the instant appeal.

         As noted above, Greene filed his first PCRA Petition pro se. The PCRA

court properly appointed counsel, as this was Greene’s first PCRA Petition.

See Pa.R.Crim.P. 904(A) (providing that where an unrepresented defendant

satisfies the court he is indigent, the judge shall appoint counsel to


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represent the defendant on a first petition for PCRA relief); Commonwealth

v. Padden, 783 A.2d 299, 308 (Pa. Super. 2001) (stating that a first-time

pro se petitioner under the PCRA is entitled to the benefit of the assistance

of counsel to help identify and properly present potentially meritorious issues

for the trial court’s consideration).     Upon review, Attorney Zimmerer

concluded that Greene’s PCRA Petition lacked merit.       Motion to Withdraw

PCRA Petition, 8/4/14, at ¶ 4.    Rather than petitioning to withdraw from

representation, in accordance with Commonwealth v. Turner, 518 Pa.

491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d 213

(Pa. Super. 1988) (en banc), counsel filed a Petition to Withdraw Greene’s

PCRA Petition, which the PCRA court granted.

      As this Court has long held, “a criminal defendant has a right to

representation of counsel for purposes of litigating a first PCRA petition

through the entire appellate process.” Commonwealth v. Robinson, 970

A.2d 455, 457 (Pa. Super. 2009) (en banc) (emphasis added). “When, in

the exercise of [her] professional judgment, counsel determines that the

issues raised under the [PCRA] are meritless, and when the [PCRA] court

concurs, counsel will be permitted to withdraw and the petitioner may

proceed pro se, or by privately retained counsel, or not at all.” Turner, 544

A.2d at 928-29.2     However, when requesting leave to withdraw, PCRA

counsel must first file a document pursuant to the requirements of Turner

2
   Turner addressed the procedure for withdrawing as counsel under the
Post Conviction Hearing Act, the precursor to the PCRA.


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and Finley. Commonwealth v. Hayes, 596 A.2d 195, 196 n.4 (Pa. Super.

1991) (en banc).3

     Although Attorney Zimmerer believed that Greene’s pro se PCRA

Petition lacked merit, she failed to comply with the dictates of Turner and

Finley for withdrawing from representation.        The PCRA court granted

counsel’s Petition, rather than directing counsel to comply with Turner,

Finley, and their progeny, thereby precluding Greene from “litigating” his

first PCRA Petition.    Since that time, Greene has Petitioned for the

reinstatement of his pro se PCRA Petition, and filed a Motion to Correct

and/or Modify Illegal Sentence, both of which were denied without the

appointment of counsel.4

     Under these circumstances, Greene’s Motion to Correct and/or Modify

Illegal Sentence should have been considered a Petition for PCRA relief. See

42 Pa.C.S.A. § 9542 (stating that the PCRA shall be sole means of obtaining

collateral relief and encompasses all other common law and statutory

remedies for the    same purpose).     Even though this Petition is facially

3
   This Turner/Finley filing consists of either a brief or a “no-merit” letter
which describes in detail the nature and extent of the independent review
undertaken by counsel, lists each issue raised under the PCRA, and explains
why the claims are without merit. Id. The “Turner/Finley” brief may be
filed with either the PCRA court or with the appellate court. Id. The
petitioner is then free to proceed pro se, by privately retained counsel, or
not at all. Commonwealth v. Dukeman, 605 A.2d at 419 (citing Turner,
supra). Accord Hayes, 596 A.2d at 196 n.4.
4
  We additionally note that the PCRA court did not provide notice of its
intention to dismiss the Petition without a hearing, as required by
Pa.R.Crim.P. 907.


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untimely, the record reflects that Greene has not yet “litigated” a first

petition for PCRA relief. Accordingly, he is entitled to representation.

      We therefore reverse the Order of the PCRA court, and remand for the

appointment of counsel and further proceedings as necessary.

      Order reversed.     Case remanded for further proceedings consistent

with this Memorandum. Superior Court jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/29/2015




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